Common use of Stockholder Consent Clause in Contracts

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware Nevada law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNRS, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the CompanyGFL, acting through its Board of Directors, shall, in accordance with Delaware law the NYBCL and its certificate Certificate of incorporation Incorporation and byBy-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the GFL Stockholders. The Company GFL shall notify each GFL Stockholder, whether or not entitled to vote, of the proposed Company stockholdersGFL Stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company GFL shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders GFL Stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the GFL Stockholders if the CompanyGFL’s Board of Directors and the requisite GFL Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company GFL Stockholders to the extent permitted by the NYBCL and applicable law. If a written consent of the GFL Stockholders is obtained, at least 80% of the GFL Stockholders must approve this Agreement and the transactions contemplated thereby. (b) The Board of Directors of the Company GFL shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company GFL may at any time prior to approval of the GFL Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company GFL determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company GFL of this Agreement). The Company GFL shall provide written notice to Parent promptly upon the Company GFL taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNYBCL, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNew York, including any time after the Merger is authorized by the GFL Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the GFL Stockholders.

Stockholder Consent. (a) So long The Company shall use its reasonable best efforts to obtain, as soon as reasonably practicable after the Board execution of Directors this Agreement, the written consent of each of the Company Stockholders listed on Annex B hereto pursuant to which such Company Stockholders approve and adopt this Agreement, the Merger and the other transactions contemplated hereby (the “Stockholder Consent”), which shall constitute the Stockholder Approval. The Stockholder Consent shall be in the form attached hereto as Exhibit C, and shall be irrevocable with respect to all shares of Company Common Stock owned beneficially or of record by the consenting Company Stockholders or as to which they have directly or indirectly, the right to vote or direct the voting thereof. (b) Within five Business Days after the date on which the Company obtains the Stockholder Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Company Stockholder that did not have withdrawn, modified or changed its recommendation execute the Stockholder Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Merger is advisable in accordance with Section 251(b) of Delaware Law and in the provisions best interests of Section 7.8(b) hereofthe Company Stockholders and unanimously approved and adopted this Agreement, the CompanyMerger and the other Transactions contemplated hereby, acting through its Board (ii) provide the Company Stockholders to whom it is sent with notice of Directorsthe actions taken in the Stockholder Consent, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for including the purpose of obtaining the requisite approval and adoption of this Agreement Agreement, the Merger and the other transactions contemplated hereby by in accordance with Section 228(e) of Delaware Law and the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors bylaws of the Company and (iii) notify such Company Stockholders of their dissent and appraisal rights pursuant to Section 262 of Delaware Law. The Stockholder Notice will include therewith a copy of Section 262 of Delaware Law and all such other information as Acquiror shall not be required to take all actions reasonably necessary to establish a record date forrequest, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts be sufficient in form and substance to solicit and obtain start the 20 day period during which a Company Stockholder must demand appraisal of such approval; provided, however, that the Board Stockholder’s Company Common Stock as contemplated by 262(d)(2) of Directors of the Delaware Law. All materials submitted to Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholdersthis Section 5.1(b) shall be subject to Acquiror’s advance review and reasonable approval.

Stockholder Consent. (a) So long as the Board of Directors of the The Company shall not have withdrawn, modified or changed its recommendation in accordance with immediately after the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law execution and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption delivery of this Agreement (but no later than twenty-four (24) hours thereafter), cause to be delivered, in the manner required by DGCL Section 228, Stockholder Consents representing at least eighty-five percent (85%) of each of the outstanding shares of Company Common Stock and Company Preferred Stock (the “Requisite Stockholder Consent”), which shall constitute the requisite corporate approval under applicable Law by holders of Company Capital Stock of this Agreement, the Merger, the conversion of all Company Capital Stock as provided for in this Agreement, and the other transactions contemplated hereby by the Stockholdershereby. The Company shall notify each Stockholder, whether or not entitled use commercially reasonable efforts to vote, continue to solicit the delivery of additional Stockholder Consents from all remaining Stockholders until the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable lawClosing. (b) The Board Promptly, but in no event later than ten (10) calendar days after the date of Directors the Stockholder Consent, the Company shall: (i) deliver notice to all holders of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors Capital Stock of the approval by the requisite number of holders of Company may at any time prior Capital Stock of this Agreement, the Merger, the conversion of all the Company Capital Stock as provided for in this Agreement and the other transactions contemplated hereby, pursuant to approval and in accordance with the applicable provisions of the Stockholders DGCL, including Section 228(e), and the Organizational Documents (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or “Stockholder Notices”); (ii) recommend and declare advisable any other offer or proposal, provide to the extent the Board each holder of Directors Company Capital Stock whose consent was not obtained a copy of the notice required pursuant to Section 262 of the DGCL informing such holder that appraisal rights are available for his, her or its shares of Company determines Capital Stock pursuant to Section 262 of the DGCL along with such other information as required by Section 262 of the DGCL and applicable Law (the “Section 262 Notice”); and (iii) a Letter of Transmittal and instructions for use in good faith, based upon advice effecting the surrender of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Certificates in exchange for the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisoConsideration. (c) Pursuant to Without limiting the DCGL, at rights and remedies of Parent or any time before the certificate of merger is filed with the Secretary of State of the State of Delawareother Indemnified Parties, the Stockholder Notices and the Section 262 Notice, including any time after amendments or supplements thereto, shall be subject to review and approval by Parent. (d) Each Party shall provide to the Merger is authorized by other any information for inclusion in the Stockholderspreparation of the Stockholder Consent, the Merger Stockholder Notices or Section 262 Notices that may be abandoned required by Law and this Agreement may be terminated in accordance with the terms hereof, without further action that is reasonably requested by the Stockholdersany other Party.

Stockholder Consent. FGC shall attempt to prepare as promptly as possible a proxy and file it with the U.S. Securities and Exchange Commission. FGC agrees to use its best efforts to take, in accordance with applicable law and its charter and bylaws, all action necessary to convene as soon as reasonably practicable a special meeting of its stockholders to consider and vote upon the approval of this Agreement and any other matters required to be approved by its stockholders for consummation of the transactions contemplated hereby (a) So long as including any adjournment or postponement of the meeting). Except with the prior written approval of Purchaser, no other matters shall be submitted for the approval of FGC’s stockholders at the meeting. The Board of Directors of the Company FGC shall not have withdrawn, modified or changed at all times prior to and during such meeting recommend such approval and shall take all reasonable lawful action to solicit such approval by its recommendation in accordance stockholders. The parties hereto acknowledge that FGC shall proceed with the provisions of Section 7.8(b) hereof, Chapter 11 Case to the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state extent that the purpose, or one stockholders of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary FGC fail to approve this Agreement and the transactions contemplated hereby by written consent thereby or otherwise if the FGC Board of Directors, in lieu its good faith determination, concludes that such action is in the best interests of its constituencies. In the event that FGC has not been able to take the actions necessary to convene a special meeting of its stockholders not later than three days following Regulatory Approval, or if the stockholders of the Company to the extent permitted by applicable law. (b) The FGC Board of Directors otherwise determines that proceeding with the Chapter 11 Case on an accelerated basis is in the best interest of the Company constituencies of FGC on a consolidated basis, then FGC shall unanimously recommend such approval proceed in a reasonably prompt manner with the Chapter 11 Case, shall consult with Purchaser in advance of commencing the Chapter 11 Case and shall use cooperate with Purchaser to seek all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors required approvals of the Company may Bankruptcy Court to consummate the transactions contemplated herein at any time prior to approval the earliest possible date following commencement of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisoChapter 11 Case. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware Nevada law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders, or in the alternative to obtain the written consent of a majority of the Shareholders of the Company to this merger. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meetingmeeting or need for written consent. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNRS, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b7.5(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law the DGCL and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining obtain the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if as required by the Company’s Board of Directors DGCL and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable lawotherwise. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to Section 251(d) of the DCGLDGCL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. Immediately following the execution of this Agreement, each Key Stockholder is executing and delivering to the Company and Acquiror a written consent adopting this Agreement and approving the Merger and approving certain other matters relating to the Contemplated Transactions (a) So long the “Stockholder Consent”). The Company shall not cause or permit any Key Stockholder to withdraw such Key Stockholder’s adoption of this Agreement or approval of the Merger or approval of the other matters set forth therein as evidenced by the Board Stockholder Consent, or take any other action that is inconsistent with such Stockholder Consent or that may have the effect of Directors delaying or interfering with the Merger. As promptly as practicable following the date of this Agreement, the Company shall not have withdrawnprepare an information statement accurately and completely describing this Agreement, modified or changed its recommendation in accordance with the Merger, the other Contemplated Transactions and the provisions of Section 7.8(b) hereof262 of the DGCL (the “Information Statement”), and shall (following the Company, acting through its Board review and approval of Directors, shall, in accordance with Delaware law the Information Statement by Acquiror and its certificate counsel) deliver the Information Statement to those of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting its Stockholders who did not execute Stockholder Consents for the purpose of obtaining informing them of the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, approval of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors soliciting either (a) their execution of the Company Stockholder Consent, or (b) their waiver of their appraisal rights pursuant to Section 262 of the DGCL. The Information Statement shall not be required include a statement to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if effect that the Company’s Board of Directors and unanimously recommends that the requisite Stockholders otherwise take all actions reasonably necessary to approve execute the Stockholder Consent adopting this Agreement and approving the transactions contemplated hereby by written consent in lieu of a meeting Merger, and that the Stockholders waive their appraisal rights pursuant to Section 262 of the stockholders of DGCL, and the Company to the extent permitted by applicable law. (b) The Company’s Board of Directors of the Company shall unanimously recommend not withdraw or adversely modify (or propose to withdraw or adversely modify) such approval and shall use all reasonable efforts recommendation unless required to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its do so by their fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisoDGCL. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders, or in the alternative to obtain the written consent of a majority of the Shareholders of the Company to this merger. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meetingmeeting or need for written consent. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNRS, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b7.6(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware Tennessee law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNRS, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the The Company, acting through its Board of Directors, shallhas, in accordance with Delaware law NRS and its certificate Articles of incorporation Incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. If a written consent of the Stockholders is obtained, at least 65% of the Stockholders must approve this Agreement and the transactions contemplated thereby. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNevada, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware Oregon law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLOregon law, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareOregon, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long The Seller shall use its reasonable best efforts to obtain, as promptly as reasonably practicable following the Board of Directors date the Proxy Statement is declared effective by the SEC, the Seller Stockholder Vote and the Minority Vote pursuant to written consents of the Company Stockholders in a form reasonably acceptable to Parent and the affirmative vote or consent of Stockholders adopting and approving the Seller Charter Amendment (the “Written Consent”). The materials submitted to the Stockholders in connection with the Written Consent shall include the Seller Board Recommendation. Reasonably promptly following receipt of the Written Consent, the Seller shall deliver a copy of such Written Consent to Parent. (b) Reasonably promptly following receipt of the Written Consent, the Seller shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not have withdrawn, modified or changed its recommendation execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Seller Board unanimously determined that the Merger is advisable in accordance with Section 251(b) of the provisions DGCL and in the best interests of Section 7.8(b) hereofthe Stockholders and unanimously approved and adopted this Agreement, the CompanyMerger and the other transactions contemplated hereby, acting through its Board (ii) provide the Stockholders to whom it is sent with notice of Directorsthe actions taken in the Written Consent, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for including the purpose of obtaining the requisite approval and adoption of this Agreement Agreement, the Merger and the other transactions contemplated hereby by in accordance with Section 228(e) of the StockholdersDGCL and the bylaws of the Seller and (iii) notify such Stockholders of their dissent and appraisal rights pursuant to Section 262 of the DGCL. The Company Stockholder Notice shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors Section 262 of the Company DGCL and all such other information as Parent shall not reasonably request, and shall be required sufficient in form and substance to take all actions reasonably necessary start the twenty (20) day period during which a Stockholder must demand appraisal of such Stockholder’s FTS Shares as contemplated by Section 262(d)(2) of the DGCL. All materials submitted to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholdersthis Section 6.5(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the The Company, acting through its Board of Directors, shall, in accordance with Delaware Nevada law and its certificate articles of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders, or in the alternative to obtain the written consent of a majority of the Shareholders of the Company to this merger. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meetingmeeting or need for written consent. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNRS, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders the (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNRS, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware the law of the Company’s state of incorporation and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNRS, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as Promptly following the Board of Directors of date hereof, the Company shall prepare and, as soon as reasonably practicable, send to all Stockholders on the record date for the Stockholder Written Consents who did not have withdrawn, modified or changed its recommendation execute a Stockholder Written Consent the notices required pursuant to the DGCL. Such materials submitted to the Stockholders in accordance connection with the provisions of Section 7.8(b) hereof, such Stockholder Written Consents shall be subject to review and comment by Parent and shall include an information statement regarding the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption terms of this Agreement and the Merger and the unanimous recommendation of the Company’s board of directors that the Stockholders vote in favor of adoption of the Agreement and approval of the Merger and the other transactions contemplated hereby by (the Stockholders“Information Statement”). The Company shall notify each StockholderIn addition, whether or not entitled to vote, of as soon as practicable following the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger execution and shall contain or be accompanied by a copy or summary delivery of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall use its commercially reasonable efforts to solicit a Joinder Agreement from each Stockholder that did not execute and deliver a Joinder Agreement contemporaneously with the Stockholder Written Consent. Each party agrees that information supplied by such party for inclusion in the Information Statement will not, on the date the Information Statement is first sent or furnished to the Stockholders contain any statement which, at such time, is false or misleading with respect to any material fact, or omit to state any material fact necessary in order to make the statements made therein, in light of the circumstances under which they are made, not false or misleading. The parties shall update, amend and supplement the Information Statement from time to time as may be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable lawlaws. (b) The Board board of Directors directors of the Company shall unanimously recommend such not alter, modify, change or revoke its unanimous approval of this Agreement, the Merger and shall use all reasonable efforts to solicit and obtain such approval; providedthe transactions contemplated hereby, however, including each of the matters set forth in Section 4.04(a) hereof nor its unanimous recommendation that the Board Stockholders vote in favor of Directors adoption of the Company may at any time prior to Agreement and approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or Merger and the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisotransactions contemplated hereby. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the The Company shall not have withdrawnuse its reasonable best efforts to obtain, modified or changed its recommendation in accordance with as soon as reasonably practicable after the provisions execution of Section 7.8(b) hereofthis Agreement, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, approval of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company Stockholders (the “Stockholder Consent”). The Stockholder Consent shall evidence the Requisite Approval and be in the form attached hereto as Exhibit I, and shall be irrevocable with respect to all shares of Company Capital Stock owned beneficially or of record by the consenting Company Stockholders or as to which they have, directly or indirectly, the right to vote or direct the voting thereof. In connection therewith, the Company shall permit Acquiror and its counsel to review, at least two (2) Business Days prior to distribution to the extent permitted by applicable lawCompany Stockholders, any materials which the Company may send to the Company Stockholders in order to obtain the Stockholder Consent and will consider in good faith the comments of Acquiror to such materials; provided that such review shall not materially impede the timing of the Company’s delivery of such materials. (b) Within ten (10) days after the date on which the Company obtains the Stockholder Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Company Stockholder that did not execute the Stockholder Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board determined that the Merger is advisable in accordance with Section 251(b) of Directors Delaware Law and in the best interests of the Company shall unanimously recommend such Stockholders and approved and adopted this Agreement, the Merger and the other transactions contemplated hereby, (ii) provide the Company Stockholders to whom it is sent with notice of the actions taken in the Stockholder Consent, including the approval and shall use all reasonable efforts to solicit adoption of this Agreement, the Merger and obtain such approval; provided, however, that the Board other transactions contemplated hereby in accordance with Section 228(e) of Directors Delaware Law and the bylaws of the Company may at any time prior and (iii) notify such Company Stockholders of their appraisal rights pursuant to approval Section 262 of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisoDelaware Law. (c) Pursuant The Company shall comply with all obligations it may have to deliver notice of the Merger and the transactions contemplated hereby to each of the Company Securityholders, including pursuant to its Certificate of Incorporation and any Contract, or shall otherwise obtain a waiver of such notice obligations from the applicable Company Securityholders. (d) As soon as practicable after the Agreement Date, and in any event within ten (10) days after the Agreement Date, the Company shall send to each holder of Company Options notice of the Merger and the transactions contemplated hereby, which notice shall inform each holder of Company Options of (i) the impact of the Merger on Company Options and Company Capital Stock (including with respect to the DCGLTax treatment thereof) and (ii) such holder’s ability to exercise its Company Options prior to the Closing, and shall include an election form for the exercise thereof. In connection therewith, at any time before least two (2) Business Days prior to the certificate distribution of merger is filed with such notice, the Secretary Company shall permit Acquiror and its counsel to review such notice and shall consider in good faith the comments of State Acquiror to such materials; provided that such review shall not materially impede the timing of the State Company’s delivery of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholderssuch materials.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b7.6(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law the DGCL and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the StockholdersStockholders as required by the DGCL and otherwise. The Company shall cause such stockholder meeting to be held in accordance with the DGCL on or prior to May 31, 2005. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting' meeting in accordance with the DGCL and the certificate of incorporation and by-laws. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Company Board of Directors and the requisite Stockholders otherwise take takes all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable lawthe DGCL. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to Section 251(d) of the DCGLDGCL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. Immediately following the execution of this Agreement, each Key Stockholder is executing and delivering to the Company and Acquiror a written consent adopting this -57- Agreement and approving the Merger and approving certain other matters relating to the Contemplated Transactions (a) So long the “Stockholder Consent”). The Company shall not cause or permit any Key Stockholder to withdraw such Key Stockholder’s adoption of this Agreement or approval of the Merger or approval of the other matters set forth therein as evidenced by the Board Stockholder Consent, or take any other action that is inconsistent with such Stockholder Consent or that may have the effect of Directors delaying or interfering with the Merger. As promptly as practicable following the date of this Agreement, the Company shall not have withdrawnprepare an information statement accurately and completely describing this Agreement, modified or changed its recommendation in accordance with the Merger, the other Contemplated Transactions and the provisions of Section 7.8(b) hereof262 of the DGCL (the “Information Statement”), and shall (following the Company, acting through its Board review and approval of Directors, shall, in accordance with Delaware law the Information Statement by Acquiror and its certificate counsel) deliver the Information Statement to those of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting its Stockholders who did not execute Stockholder Consents for the purpose of obtaining informing them of the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, approval of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors soliciting either (a) their execution of the Company Stockholder Consent, or (b) their waiver of their appraisal rights pursuant to Section 262 of the DGCL. The Information Statement shall not be required include a statement to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if effect that the Company’s Board of Directors and unanimously recommends that the requisite Stockholders otherwise take all actions reasonably necessary to approve execute the Stockholder Consent adopting this Agreement and approving the transactions contemplated hereby by written consent in lieu of a meeting Merger, and that the Stockholders waive their appraisal rights pursuant to Section 262 of the stockholders of DGCL, and the Company to the extent permitted by applicable law. (b) The Company’s Board of Directors of the Company shall unanimously recommend not withdraw or adversely modify (or propose to withdraw or adversely modify) such approval and shall use all reasonable efforts recommendation unless required to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its do so by their fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisoDGCL. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long 13.3.1 As soon as practicable following the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement, but in no event later than fifty days following the date of this Agreement, or as soon thereafter as practicable, Contributor Parent shall prepare and file with the SEC a proxy statement. Notwithstanding Such proxy statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the foregoingstatements therein, the Board of Directors in light of the Company circumstances under which they were made, not misleading. The proxy statement will comply as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended, and the 1933 Act and the rules and regulations of the SEC thereunder. Contributor Parent shall not be required use reasonable best efforts to take all actions reasonably necessary comply with the comments raised by the SEC, if any, and shall mail to establish Contributor Parent's stockholders a record date forcopy of the proxy statement as promptly as practicable following the conclusion of the SEC review of and comments on the proxy statement. 13.3.2 Contributor Parent shall, as soon as practicable following the conclusion of SEC review of and comments on the proxy statement referenced in Section 13.3.1 hereof, duly call, give notice of, convene and hold a meeting of its stockholders meeting for the purpose of obtaining the requisite approval and adoption required votes, and, Contributor Parent shall, through its Board of this Agreement and Directors, recommend to its stockholders that they approve the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approvalAgreement; provided, however, that the Board of Directors of the Company Contributor Parent may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any such recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company if it determines in good faith, based upon the advice of legal outside counsel, that withdrawingmaking such recommendation, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger failure to so withdraw, modify or recommending and declaring advisable change its recommendation, or the failure to recommend any other offer or proposal is necessary proposal, could reasonably be deemed to comply with its cause the members of the Board of Directors to breach their fiduciary duties under applicable law (which declinations, withdrawal, modification law. Limited Partner shall vote or change shall not constitute a breach cause to be voted all the shares of Contributor Parent's common stock owned of record by Limited Partner or any of its Subsidiaries or Affiliates in favor of the Company of transactions contemplated by this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law the DGCL and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the StockholdersStockholders as required by the DGCL and otherwise. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meetingmeeting in accordance with the DGCL and the certificate of incorporation and by-laws. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable lawthe DGCL. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to Section 251(d) of the DCGLDGCL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long The Company shall use its reasonable best efforts to obtain, as soon as reasonably practicable after the Board execution of Directors this Agreement, the written consent of each of the Company Stockholders listed on the Spreadsheet pursuant to which such Company Stockholders approve and adopt this Agreement, the Merger and the other transactions contemplated hereby (the “Stockholder Consent”). The Stockholder Consent shall be in the form attached hereto as Exhibit D and shall be irrevocable with respect to all shares of Company Common Stock owned beneficially or of record by the consenting Company Stockholders or as to which they have, directly or indirectly, the right to vote or direct the voting thereof. (b) Within five (5) Business Days after the date on which the Company obtains the Stockholder Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Company Stockholder that did not have withdrawn, modified or changed its recommendation execute the Stockholder Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Merger is advisable in accordance with Section 251(b) of Delaware Law and in the provisions best interests of Section 7.8(b) hereofthe Company Stockholders and unanimously approved and adopted this Agreement, the CompanyMerger and the other transactions contemplated hereby, acting through its Board (ii) provide the Company Stockholders to whom it is sent with notice of Directorsthe actions taken in the Stockholder Consent, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for including the purpose of obtaining the requisite approval and adoption of this Agreement Agreement, the Merger and the other transactions contemplated hereby by in accordance with Section 228(e) of Delaware Law and the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors bylaws of the Company shall not be required and (iii) notify such Company Stockholders of their dissent and appraisal rights pursuant to take all actions reasonably necessary to establish California Law. The Stockholder Notice will include therewith a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting copy of the stockholders applicable provisions of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company California Law and all such other information as Purchaser shall unanimously recommend such approval reasonably request, and shall use all reasonable efforts be sufficient in form and substance to solicit and obtain start the twenty (20) day period during which a Company Stockholder must demand appraisal of such approval; provided, however, that the Board of Directors of the Stockholder’s Company may at any time prior Common Stock as contemplated by California Law. All materials submitted to approval of the Company Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholdersthis Section 5.1(b) shall be subject to Purchaser’s advance review and reasonable approval.

Stockholder Consent. As promptly as reasonably practicable after the date of this Agreement, the Company shall prepare and distribute to the Company Stockholders a consent solicitation statement for the purposes of obtaining the Company Stockholder Approval in accordance with Section 228 of the DGCL, describing in reasonable detail the Merger, the COI Amendment and the other transactions contemplated hereby. Subject to Section 7.8(c) hereof, the Company shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement (athe “Company Board Recommendation”) So long as and such recommendation will be included in the consent solicitation statement. Promptly after obtaining the Company Stockholder Approval, the Company will prepare and distribute to the Company Stockholders the notices required by Section 228(e) and 262(d)(2) of the DGCL, and any other applicable provisions of the CGCL informing them that appraisal rights are available for their shares pursuant to Section 262 of the DGCL Section 1300 of the CGCL and otherwise complying with all requirements under the DGCL and the CGCL. Parent will have the right to review and comment on all such notices and statements prior to their distribution. Such materials shall not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. The Company’s obligations pursuant to the first sentence of this Section 7.5 shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company of any Takeover Proposal or (ii) the withdrawal or modification by the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with any committee thereof of the provisions of Section 7.8(b) hereof, the Company, acting through its Company Board Recommendation or such Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether ’ or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Companysuch committee’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposalMerger. In addition, to the extent the Board of Directors of the Company determines agrees to immediately notify Parent in good faith, based writing upon advice its receipt of legal counsel, that withdrawing, modifying, changing any notices or declining other communications with respect to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisoDissenting Shares. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b7.6(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware Florida law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ ' meeting. Such meeting notice shall state that the purpose, purpose or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s 's Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (ba) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; providedprovided , however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawalwithdrawal , modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (cb) Pursuant to the DCGLNRS, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. Subject to Section 6.06, (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed use its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary reasonable best efforts to establish a record date for, duly call, give notice of, convenesolicit, and hold a stockholders meeting shall use its reasonable best efforts to obtain, written consents (“Written Consents”) from all the Company Stockholders within two (2) Business Days after the execution of this Agreement for the purpose purposes of obtaining the requisite approval Requisite Stockholder Approval and (b) the Company’s Board shall declare the advisability of this Agreement and recommend the adoption of this Agreement and the transactions contemplated hereby approval of the Merger and the Transactions by the Common Stockholders. The Company shall notify each Stockholder, whether mail or not entitled deliver an information statement (the “Information Statement”) to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company as of the record date under Delaware law. Prior to the extent permitted distribution of any solicitation materials, including the Information Statement, or any amendment or supplement thereto, Parent and its counsel shall be provided copies of such materials not produced or provided by Parent for such purpose and shall be provided a reasonable opportunity to review and comment thereon. The Information Statement shall constitute a disclosure document for the offer and issuance of the shares included in the Stock Portion of the Merger Consideration to be received by the holders of the Company’s capital stock in the Merger. Parent shall promptly provide all information relating to its business and operations necessary for inclusion in the Information Statement to satisfy all requirements of applicable law. (b) federal and state securities laws. The Board information supplied by Parent for inclusion in the Information Statement shall not, at the time the Information Statement is first mailed to the holders of Directors capital stock of the Company shall unanimously recommend and at the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading. No representation is made by the Company with respect to statements made in the Information Statement regarding the Company based on information supplied by an officer or director of Parent or Merger Sub who is at such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors time an officer or director of the Company. The Company may will promptly advise Parent, and Parent will promptly advise the Company, in writing if at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement Effective Time either Parent or the Merger Company shall obtain knowledge of any facts that might make it necessary or (ii) recommend and declare advisable any other offer appropriate to amend or proposal, to supplement the extent the Board of Directors of the Company determines Information Statement in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining order to make its recommendation regarding this Agreement the statements contained or the Merger incorporated by reference therein not misleading or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisolaw. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. As expeditiously as possible (aand in any event within five (5) So long as Business Days) following the Board execution of Directors of this Agreement, the Company shall not have withdrawnmail or otherwise distribute the Information Statement, modified or changed its recommendation in accordance with a form reasonably acceptable to Parent, to the provisions Company Stockholders, and shall promptly inform Parent of Section 7.8(bthe date on which such Information Statement (including the notices contained therein) hereofwas sent to the Company Stockholders. The Information 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 the indemnification obligations of the Participating Securityholders, the Company, acting through its Board authority of Directors, shall, in accordance with Delaware law the Securityholders’ Representative and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for statement that the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of 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 the extent permitted 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 applicable law. Rules 502 or 506 of Regulation D promulgated under the Securities Act, and (bvii) The Board pursuant to Section 228 of Directors 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. Parent and its counsel shall unanimously recommend such approval be given an adequate opportunity to review and comment on the Information Statement, and the Company shall reflect all reasonable comments of Parent or its counsel thereon. As expeditiously as reasonably possible following the execution of this Agreement, and in any event by 5:00 p.m., New York City time, on the second (2nd) Business Day immediately following the date of this Agreement, the Company shall use all reasonable best efforts to solicit and obtain such approval; providedsecure the Written Consents from Company Stockholders necessary to secure the Required Company Stockholder Vote, howeverwhich consents shall be in a form that is reasonably acceptable to Parent. As promptly as reasonably practicable following the receipt of the Required Company Stockholder Vote, that the Board of Directors Company shall deliver to Parent a certificate executed on behalf of the Company may at any time prior to approval of by its Secretary and certifying that the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Required Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisoStockholder Vote has been obtained. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the The Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders, or in the alternative to obtain the written consent of a majority of the Shareholders of the Company to this merger. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meetingmeeting or need for written consent. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLDGCL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long As promptly as practicable after the Board date of Directors of this Agreement, Parent and the Company shall not have withdrawnprepare disclosure material concerning the parties to the proposed Merger, modified or changed its recommendation in accordance to be sent to the Company stockholders (the "Information Statement"). Each of Parent and the Company shall use all reasonable efforts to cause the Information Statement to comply with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law rules and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby regulations promulgated by the StockholdersSEC. The Company shall notify each Stockholder, whether or not entitled promptly furnish to vote, of Parent all information concerning the proposed Company stockholders’ meeting. Such meeting notice shall state that and the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors stockholders of the Company shall not that may be required or reasonably requested in connection with any action contemplated by this Section 5.2. If any event relating to the Company occurs, or if the Company becomes aware of any information that should be disclosed in an amendment or supplement to the Information Statement, then the Company shall promptly inform Parent thereof and shall cooperate with Parent in preparing such amendment or supplement and, if appropriate, in mailing such amendment or supplement to the stockholders of the Company. (b) The Company shall take all actions reasonably action necessary under all applicable Legal Requirements to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for solicit the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company entitled to vote upon the adoption and approval of this Agreement and the approval of the Merger and will promptly mail to each holder of capital stock of the Company a copy of the Information Statement, a form of written consent and such other documents as Parent deems are necessary to comply with applicable law or are otherwise reasonably appropriate. The Company shall use its best efforts to ensure that the Required Company Stockholder Vote will be obtained as promptly as practicable (and in any event within 15 days) after the Information Statement is first sent to the extent permitted by stockholders of the Company. The Company shall ensure that the Required Company Stockholder Vote is obtained in compliance with all applicable lawLegal Requirements. (bc) The Board board of Directors directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board Company's stockholders adopt and approve this Agreement and approve the Merger. The Information Statement shall include a statement to the effect that the board of Directors directors of the Company may at any time prior to approval of has unanimously recommended that the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding Company's stockholders adopt and approve this Agreement or and approve the Merger or (ii) recommend and declare advisable any other offer or proposal, to Merger. Neither the extent the Board board of Directors directors of the Company determines nor any committee thereof shall withdraw, amend or modify, or propose or resolve to withdraw, amend or modify, in good faitha manner adverse to Parent, based upon advice the unanimous recommendation of legal counsel, the board of directors of the Company that withdrawing, modifying, changing or declining to make its recommendation regarding the Company's stockholders adopt and approve this Agreement or and approve the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company Merger. For purposes of this Agreement). The , said recommendation of the board of directors of the Company shall provide written notice be deemed to have been modified in a manner adverse to Parent promptly upon the Company taking any action referred to in the foregoing provisoif said recommendation shall no longer be unanimous. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware Utah law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNRS, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long The Company will, as soon as practicable following the Board date of Directors this Agreement, duly submit to its stockholders this Agreement for the purpose of considering the Company shall not have withdrawnapproval of this Agreement and the Merger, modified or changed its recommendation all in accordance with the provisions of Section 7.8(b) hereofDGCL, the CompanyCompany Charter and the Company Bylaws. The Company will, acting through its Board of Directors, shall, in accordance with Delaware law and recommend to its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and shall use all commercially reasonable efforts (including direction from the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Company's Board of Directors of that the Company shall not be required to stockholders take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby such action by written consent in lieu accordance with the Company Charter) to solicit such approval by its stockholders in the form of a meeting of written consent in form and substance reasonably acceptable to Parent (the stockholders of "Stockholder Consent"). In connection with soliciting such consent, the Company to the extent permitted by applicable law. (b) The Board of Directors of and Parent shall promptly prepare an information statement. Parent and the Company shall unanimously recommend furnish all information concerning Parent or the Company, as the case may be, as may be reasonably requested in connection with such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may information statement. If at any time prior to approval the effective time of the Stockholders (i) decline Stockholder Consent, any information relating to makethe Company or Parent, withdrawor any of their respective affiliates, modify officers or change directors, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to such information statement, so that such document would not include any recommendation misstatement of a material fact or declaration regarding this Agreement omit to state any material fact necessary to make the 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 party and an appropriate amendment or supplement prepared by Parent and the Merger or (ii) recommend and declare advisable any other offer or proposalCompany describing such information shall be, to the extent required by law, disseminated by the Company to the stockholders of the Company. The Company's Board of Directors shall not withdraw or modify, or propose to withdraw or modify in a manner adverse to Parent, such recommendation. The Company agrees to submit this Agreement and such information statement to its stockholders for approval whether or not the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, at any time subsequent to the date hereof that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or is no longer advisable and recommends that the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by stockholders of the Company of this Agreement)reject it. The Company shall provide written notice use commercially reasonable efforts to Parent promptly upon obtain the Company taking any action referred to in Stockholder Consent no later than 45 days after the foregoing provisodate hereof. (cb) Pursuant As promptly as practicable after obtaining the Stockholder Consent, but in no event later than 20 business days prior to the DCGLClosing Date, at any time before the certificate Company shall notify each of merger its stockholders who is filed with the Secretary of State entitled to appraisal rights of the State approval of Delaware, including any time after the Merger is authorized by and that appraisal rights are available, pursuant to Section 262 of the Stockholders, DGCL. Such notice shall be in a form reasonably acceptable to Parent. The Company shall advise Parent as promptly as practicable of any notice received from any stockholder of the Merger may be abandoned and this Agreement may be terminated in accordance with Company purporting to demand the terms hereof, without further action by the Stockholdersappraisal of such stockholder's shares of Company Common Stock.

Stockholder Consent. (a) So long As soon as practicable after the Board date of Directors this Agreement, but in no event later than three (3) Business Days following the execution of this Agreement, the Company shall deliver to all Stockholders an information statement that includes all information that is required to be given to such Stockholders pursuant to the DGCL in connection with the Merger (including, to the extent applicable, adequate notice of the Merger and a notice of appraisal rights in accordance with Section 262 of the DGCL) (collectively, the “Stockholder Materials”). Prior to the delivery of the Stockholder Materials, the Company will give Buyer and its counsel a reasonable opportunity, but in no event less than three (3) Business Days, to review and comment on reasonably final drafts of the Stockholder Materials; provided that the Stockholder Materials shall be reasonably acceptable to Buyer At the time they are sent and at all times subsequent thereto (through and including the Effective Time) (subject to any reasonable time period needed to prepare and circulate an amendment or supplement as contemplated by the next sentence), the Stockholder Materials will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, not misleading. If, at any time prior to the Effective Time, any event or information should be discovered by the Company which should reasonably be set forth in an amendment or supplement to the Stockholder Materials, then the Company will promptly inform Buyer of such occurrence, and the Company will deliver to its Stockholders such amendment or supplement. The Stockholder Materials will include the recommendation of the board of directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption favor of this Agreement and the transactions contemplated hereby by Merger and the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, conclusion of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one board of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors directors of the Company shall not be required to take all actions reasonably necessary to establish a record date forthat the terms and conditions of the Merger are fair and reasonable to, duly call, give notice and in the best interests of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable lawStockholders. (b) The Board Promptly following the execution of Directors of this Agreement, but in no event later than ten (10) days prior to Closing, the Company shall unanimously recommend such approval and shall use all reasonable efforts deliver to solicit and obtain such approval; provided, however, that each holder of a Warrant the Board appropriate notice of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated early termination in accordance with the terms hereofof such Warrant. Prior to the delivery of such notice, without further action by the StockholdersCompany will give Buyer and its counsel a reasonable opportunity, but in no event less than three (3) Business Days, to review and comment on such notice.

Stockholder Consent. (a) So long as Within two (2) Business Days following the Board execution of Directors of this Agreement, the Company shall not prepare and caused to be delivered to Parent a draft of a consent solicitation statement (the “Consent Solicitation”) disclosing the terms of this Agreement and soliciting the Securityholders approval (via written consent of Stockholders substantially in the form attached hereto as Exhibit B) of this Agreement and the Merger. The Company shall cause the Consent Solicitation to be delivered, mailed or otherwise provided to the Securityholders on the date that is no later than the first Business Day following the date on which Parent provides its comments to the draft Consent Solicitation (provided that, if such comments are delivered after 5:00 p.m. EDT, they shall be deemed to have withdrawn, modified or changed its recommendation in accordance with been delivered prior to 5:00 p.m. EDT on the provisions of Section 7.8(bnext day) hereof(such date, the “Mailing Date”). Following the Company’s written request to Parent, acting through Parent shall promptly provide to the Company any non-confidential information relating to Parent or Merger Sub required for inclusion in the Consent Solicitation and shall promptly provide such other information or assistance in the preparation thereof as may be reasonably requested by the Company. (b) The Company shall use its best efforts to obtain the Stockholder Consent as promptly as practicable after the date of this Agreement, which efforts shall include having members of management and the Board of Directorssolicit each Stockholder by telephone, shallmail, email, in accordance with Delaware law person and its certificate of incorporation by other means in order to obtain such Stockholder’s signature to the Stockholder Consent and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by herein. Prior to the Stockholders. The Company shall notify each StockholderEffective Time, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required continue to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by solicit the Stockholders if after the Company’s Board of Directors and Stockholder Consent is obtained in an effort to obtain the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the as many Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing provisoas reasonably practicable. (c) Pursuant to In the DCGL, at any time event that the Company has not received the Stockholder Consent on or before the certificate of merger date that is filed with twenty-one (21) days following the Secretary of State Mailing Date, the Base Price shall be reduced by $1,500,000. The Company shall keep Parent reasonably apprised of the State Company’s efforts to obtain the Stockholder Consent and shall promptly, and in event within 24 hours after receipt thereof, notify Parent of Delaware, including any time after its receipt of the Merger Stockholder Consent. After the Stockholder Consent is authorized by the Stockholdersobtained, the Merger may be abandoned Company shall keep Parent reasonably apprised of its efforts to obtain the signatures of those Stockholders who have not signed the Stockholder Consent and this Agreement may be terminated in accordance shall provide Parent with periodic status updates identifying those additional Stockholders who have signed the terms hereof, without further action by Stockholder Consent and those who have not executed the StockholdersStockholder Consent.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b7.6(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law the DGCL and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the StockholdersStockholders as required by the DGCL and otherwise. The Company shall cause such stockholder meeting to be held in accordance with the DGCL on or prior to October 31, 2005. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting' meeting in accordance with the DGCL and the certificate of incorporation and by-laws. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Company Board of Directors and the requisite Stockholders otherwise take takes all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable lawthe DGCL. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to Section 252 of the DCGLDGCL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as Shift shall use its reasonable best efforts to obtain the Board of Directors Shift Stockholder Vote pursuant to written consents of the Company Stockholders in a form reasonably acceptable to Parent (the “Written Consent”) as promptly as practicable, and in any event within ten (10) Business Days, following the date that Parent receives, and notifies Shift of Parent’s receipt of, SEC approval and effectiveness of Parent’s Proxy Statement as described in Section 6.8. The materials submitted to the Stockholders in connection with the Written Consent shall include the Shift Board Recommendation. Reasonably promptly following receipt of the Written Consent, Shift shall deliver a copy of such Written Consent to Parent. (b) Reasonably promptly following receipt of the Written Consent, Shift shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not have withdrawn, modified or changed its recommendation execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Shift Board unanimously determined that the Merger is advisable in accordance with Section 251(b) of the provisions DGCL and in the best interests of Section 7.8(b) hereofthe Stockholders and unanimously approved and adopted this Agreement, the CompanyMerger and the other transactions contemplated hereby, acting through its Board (ii) provide the Stockholders to whom it is sent with notice of Directorsthe actions taken in the Written Consent, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for including the purpose of obtaining the requisite approval and adoption of this Agreement Agreement, the Merger and the other transactions contemplated hereby by in accordance with Section 228(e) of the StockholdersDGCL and the bylaws of the Shift and (iii) notify such Stockholders of their dissent and appraisal rights pursuant to Section 262 of the DGCL. The Company Stockholder Notice shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors Section 262 of the Company DGCL and all such other information as Parent shall not reasonably request, and shall be required sufficient in form and substance to take all actions reasonably necessary start the twenty (20) day period during which a Stockholder must demand appraisal of such Stockholder’s Shift Shares as contemplated by Section 262(d)(2) of the DGCL. All materials submitted to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholdersthis Section 6.6(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholder Consent. (a) So long The Company shall use its commercially reasonable efforts to obtain, within twenty (20) Business Days following the execution and delivery of this Agreement, the Stockholder Consent pursuant to written consents of the Stockholders with respect to which the execution of a Support Agreement is a requirement of Section 6.02(j) in the form attached hereto as Exhibit I. The materials submitted to the Stockholders in connection with the Stockholder Consent shall include the Company Board Recommendation. Promptly following receipt of Directors of the Stockholder Consent, the Company shall deliver a copy of such Stockholder Consent to Parent. (b) Promptly following, but in no event more than five (5) Business Days after, receipt of the Stockholder Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not have withdrawn, modified or changed its recommendation execute the Stockholder Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Mergers are advisable in accordance with Section 251(b) of the provisions DGCL and in the best interests of Section 7.8(b) hereofthe Stockholders and unanimously approved and adopted this Agreement, the CompanyMergers and the other transactions contemplated hereby, acting through its Board (ii) provide the Stockholders to whom it is sent with notice of Directorsthe actions taken in the Stockholder Consent, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for including the purpose of obtaining the requisite approval and adoption of this Agreement Agreement, the Mergers and the other transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, in accordance with Section 228(e) of the proposed Company stockholders’ meeting. Such meeting notice shall state that DGCL and the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors bylaws of the Company and (iii) notify such Stockholders of their dissent and appraisal rights pursuant to Section 262 of the DGCL. The Stockholder Notice shall not include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be required sufficient in form and substance to take all actions reasonably necessary start the twenty (20) day period during which a Stockholder must demand appraisal of such Stockholder’s Common Stock as contemplated by Section 262(d)(2) of the DGCL. All materials submitted to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if in accordance with this Section shall be subject to Parent’s advance review and reasonable approval. In addition, as the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby Stockholder Consent is executed by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of additional Stockholders, the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors promptly deliver additional copies of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice Stockholder Consent to Parent promptly upon the Company taking any action referred to in the foregoing provisoreflecting such additional Stockholders as signatories thereto. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long The Company shall use its reasonable best efforts to obtain, as soon as reasonably practicable after the Board execution of Directors this Agreement, the written consent of each of the Company Stockholders listed on Annex B hereto pursuant to which such Company Stockholders approve and adopt this Agreement, the Merger and the other transactions contemplated hereby (the “Stockholder Consent”). The Stockholder Consent shall be in the form attached hereto as Exhibit D, and shall be irrevocable with respect to all shares of Company Common Stock owned beneficially or of record by the consenting Company Stockholders or as to which they have, directly or indirectly, the right to vote or direct the voting thereof. (b) Within five (5) Business Days after the date on which the Company obtains the Stockholder Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Company Stockholder that did not have withdrawn, modified or changed its recommendation execute the Stockholder Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Merger is advisable in accordance with Section 251(b) of Delaware Law and in the provisions best interests of Section 7.8(b) hereofthe Company Stockholders and unanimously approved and adopted this Agreement, the CompanyMerger and the other Transactions contemplated hereby, acting through its Board (ii) provide the Company Stockholders to whom it is sent with notice of Directorsthe actions taken in the Stockholder Consent, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for including the purpose of obtaining the requisite approval and adoption of this Agreement Agreement, the Merger and the other transactions contemplated hereby by in accordance with Section 228(e) of Delaware Law and the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors bylaws of the Company and (iii) notify such Company Stockholders of their dissent and appraisal rights pursuant to Section 262 of Delaware Law. The Stockholder Notice will include therewith a copy of Section 262 of Delaware Law and all such other information as Acquiror shall not be required to take all actions reasonably necessary to establish a record date forrequest, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts be sufficient in form and substance to solicit and obtain start the twenty (20) day period during which a Company Stockholder must demand appraisal of such approval; provided, however, that the Board Stockholder’s Company Common Stock as contemplated by 262(d)(2) of Directors of the Delaware Law. All materials submitted to Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholdersthis Section 5.1(b) shall be subject to Acquiror’s advance review and reasonable approval.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware New York law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLNRS and BSC, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.

Stockholder Consent. (a) So long as Promptly after the Board of Directors of Form S-4 shall have been declared effective under the Securities Act, and in any event no later than two (2) Business Days thereafter, the Company shall not have withdrawn, modified or changed its recommendation distribute the approval by written consent in accordance with the provisions form attached hereto as Exhibit H (the “Written Consent”) to at least the number of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting Company Stockholders sufficient for the purpose Requisite Stockholder Approval in lieu of obtaining a meeting pursuant to Section 228 of the requisite approval DGCL (and adoption in any event to all signatories of a Support Agreement), for purposes of adopting and approving this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each StockholderTransactions, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required use its reasonable best efforts to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting cause Company Stockholders sufficient for the purpose Requisite Stockholder Approval to execute and deliver to the Company the Written Consent within seventy-two (72) hours following delivery thereof (the “Written Consent Deadline”). Promptly following receipt of obtaining the requisite duly executed Written Consent (and in any event within twenty-four (24) hours), the Company shall deliver a copy of the duly executed Written Consent to Parent. Under no circumstances shall the Company assert that any other approval and adoption of this Agreement and the transactions contemplated hereby or consent is necessary by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary its stockholders to approve this Agreement and the transactions contemplated hereby by written consent Transactions. (b) Reasonably promptly following receipt of the duly executed Written Consent and the Requisite Stockholder Approval, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every stockholder of the Company that has not theretofore executed the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board of Directors determined that the Mergers are advisable in lieu accordance with Section 251(b) of a meeting the DGCL and in the best interests of the stockholders of the Company to and approved and adopted this Agreement, the extent permitted by applicable law. Mergers and the other Transactions, (bii) The Board of Directors provide the stockholders of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors whom it is sent with notice of the Company may at any time prior to actions taken in the Written Consent, including the adoption and approval of the Stockholders (i) decline to makethis Agreement, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (iiand the other Transactions in accordance with Section 228(e) recommend of the DGCL and declare advisable any other offer or proposalChapter 13 of the CCC, to the extent applicable, the Board Company Charter and the Company Bylaws, (iii) include a description of Directors the appraisal rights of the Company’s stockholders available under the DGCL, along with such other information as is required thereunder and pursuant to Applicable Law, and seek a waiver of such appraisal rights from such stockholder of the Company determines in good faith, based upon advice and (iv) seek ratification of legal counsel, that withdrawing, modifying, changing or declining the appointment of Shareholder Representative Services LLC as the Securityholder Representative. All materials (including any amendments thereto) submitted to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by stockholders of the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholdersthis Section 5.02(b) shall be subject to Parent’s advance review and reasonable comment.

Stockholder Consent. (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law. (b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso. (c) Pursuant to the DCGLDGCL, at any time before the certificate of merger is filed with the Secretary of State of the State of DelawareNevada, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.