Common use of Stockholder Notice Clause in Contracts

Stockholder Notice. (a) As soon as practical following the execution of this Agreement, the Company will use commercially reasonable efforts to deliver to CS the duly and validly executed Stockholder Written Consents constituting approval and adoption by the Requisite Stockholder Vote of (i) this Agreement, the Merger and the transactions contemplated by this Agreement, (ii) the escrow and indemnification obligations of the Indemnifying Parties set forth in Article VII hereof and the Escrow Agreement and the deposit of cash equal to the Indemnity Escrow Amount and the Net Working Capital Adjustment Escrow Amount into the applicable Escrow Fund, and (iii) the appointment of Nxx Xxxxxxx, as the Stockholder Representative (the “Stockholder Approval”). (b) As soon as practical following the execution of this Agreement: (i) deliver notice to its Stockholders of the Stockholder Approval and the availability of appraisal rights, pursuant to and in accordance with the applicable provisions of Delaware Law and the Company Charter Documents (the “Stockholder Notice”); (ii) solicit the Stockholders who have not already executed Stockholder Written Consents to waive their appraisal rights and approve the matters set forth in Section 5.3(a) hereof; and (iii) submit to the Stockholders for approval (in a manner reasonably satisfactory to CS), by such number of Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that may separately or in the aggregate, constitute Section 280G Payments (which determination shall be made by the Company and shall be subject to reasonable review and approval by CS), such that such payments and benefits shall not be deemed to be Section 280G Payments, and, if applicable, prior to the Effective Time, the Company shall deliver to CS evidence reasonably satisfactory to CS that (A) a Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder and the requisite Stockholder approval was obtained with respect to any Section 280G Payments that were subject to the Stockholder vote, or (B) that the 280G Stockholder approval was not obtained and, as a consequence, that such payments and/or benefits shall not be made or provided to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the waivers of those payments and/or benefits, which were executed by the affected individuals prior to the Stockholder vote. (c) Notwithstanding the foregoing and subject to Section 5.1, Section 5.8 and Section 5.11 hereof, the Company shall use commercially reasonable efforts following the delivery of materials contemplated by Section 5.3(b)(i) hereof to ensure that no Stockholder will be able to exercise appraisal or similar rights if such Stockholder has not perfected such rights prior to Closing. (d) The Company shall promptly provide such notice to the holders of Company Options as reasonably required by the terms of the Plan in connection with the Merger and to the holders of Company Warrants, including, without limitation, any such notice as may be required to cause each Company Option and Company Warrant to terminate, to the extent not exercised, as of the Effective Time. (e) Each of the Stockholder Notice, any materials to be submitted to the Stockholders in connection with the solicitation of their approval of any Section 280G Payment or any of the other matters set forth in Section 5.3(b) hereof and any of the materials to be submitted to the holders of Company Options pursuant to Section 5.3(d) hereof (collectively, the “Soliciting Materials”) shall be pursuant to and in accordance with all applicable provisions of Delaware Law, the Company Charter Documents and the terms of the Plan, as appropriate. The Soliciting Materials shall be subject to prior review and approval by CS, which approval shall not be unreasonably withheld. Soliciting Materials sent to Stockholders shall include, without limitation, (i) information regarding the Company, the terms of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, (ii) the recommendation of the Board of Directors of the Company in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, (iii) a statement to the effect that this Agreement, the Merger and the transactions contemplated by this Agreement have been adopted and approved by the Requisite Stockholder Vote under Delaware Law and the Company Charter Documents, (iv) notice in accordance with Section 262 of Delaware Law that the recipient may be entitled to appraisal rights, (v) a copy of this Agreement, and (vi) a copy of Section 262 of Delaware Law. Anything to the contrary contained herein notwithstanding, the Company shall not include in the Soliciting Materials any information with respect to CS or its affiliates or associates, the form and content of which shall not have been consented to in writing by CS prior to such inclusion. (f) The Board of Directors of the Company shall not revoke or modify its approval of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, including its recommendation in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, in each case except for such actions that counsel has advised may violate the fiduciary duties of the Board of Directors.

Stockholder Notice. (a) As soon as practical Within 20 days following the execution of this Agreement, the Company will use commercially reasonable efforts to deliver to CS the duly and validly executed Stockholder Written Consents constituting approval and adoption receipt by the Requisite Stockholder Vote of (i) this Agreement, the Merger and the transactions contemplated by this Agreement, (ii) the escrow and indemnification obligations ------------------ Company of the Indemnifying Parties set forth in Article VII hereof and Notice of Offer, each other Stockholder desiring to purchase any of the Escrow Agreement and Offered Securities shall notify the deposit of cash equal Selling Stockholder as to the Indemnity Escrow Amount and the Net Working Capital Adjustment Escrow Amount into the applicable Escrow Fundnumber of Offered Securities, and if any, that it is electing to purchase (iii) the appointment of Nxx Xxxxxxx, such notification shall be referred to hereinafter as the "Stockholder Representative (the “Acceptance"). The Stockholder Approval”). (b) As soon as practical following the execution of this Agreement: (i) deliver notice to its Stockholders of the Stockholder Approval and the availability of appraisal rights, pursuant to and in accordance with the applicable provisions of Delaware Law and the Company Charter Documents (the “Stockholder Notice”); (ii) solicit the Stockholders who have not already executed Stockholder Written Consents to waive their appraisal rights and approve the matters set forth in Section 5.3(a) hereof; and (iii) submit to the Stockholders for approval (in a manner reasonably satisfactory to CS), by such number of Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that may separately or in the aggregate, constitute Section 280G Payments (which determination Acceptance shall be made by the Company and shall be subject to reasonable review and approval by CS), such that such payments and benefits shall not be deemed to be Section 280G Paymentsan irrevocable commitment to purchase from the Selling Stockholder the number of Offered Securities set forth in such Stockholder Acceptance (or such lesser amount as a result of any reduction required). It is the agreement of the parties that the other Stockholders as a group shall purchase all or none of the Offered Securities (including any related Senior Subordinated Debt) unless the Selling Stockholder elects to permit the other Stockholders to purchase less than all of the Offered Securities. If the number of Offered Securities is less than the total number included in all Stockholder Acceptances, and, if applicable, prior then the number of Offered Securities shall be allocated as nearly as practicable among each Stockholder who elected to purchase Offered Securities in the proportion that the number of shares of Common Stock held by such Stockholder bears to the Effective Timetotal number of shares of Common Stock outstanding (for purposes of these calculations, all outstanding Options and Warrants shall be deemed to have been exercised) held by all other Stockholders electing to purchase Offered Securities. Each Stockholder shall have a right of over-subscription such that if any Stockholder having a similar right fails to exercise such right to purchase its pro rata portion of the Offered Securities, the Company shall deliver promptly notify the other Stockholders and such Stockholders may purchase the non-purchasing Stockholder's portion on a pro rata basis, within five days of the date of the Company's notice. Notwithstanding anything contained herein to CS evidence reasonably satisfactory the contrary, solely for purposes of this Section 3, if a Selling Stockholder offers Senior Subordinated Debt as part of a strip of securities to CS that (A) be sold together with the Offered Securities, then a Stockholder vote was solicited in conformance with Section 280G and the regulations promulgated thereunder and the requisite Stockholder approval was obtained with respect to any Section 280G Payments that were subject to the Stockholder voteAcceptance must include a pro rata share of such Senior Subordinated Debt; provided, or (B) that the 280G Stockholder approval was however, if such offer is not obtained and, as a consequence, that such payments and/or benefits shall not be made or provided to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the waivers of those payments and/or benefits, which were executed by the affected individuals prior to the Stockholder vote. (c) Notwithstanding the foregoing and subject to Section 5.1, Section 5.8 and Section 5.11 hereofaccepted, the Company shall use commercially reasonable efforts following Selling Stockholder must include the delivery of materials contemplated by Section 5.3(b)(i) hereof to ensure that no Stockholder will be able to exercise appraisal or similar rights if such Stockholder has not perfected such rights prior to Closing. (d) The Company shall promptly provide such notice to the holders of Company Options as reasonably required by the terms offered Senior Subordinated Debt in any permitted Transfer of the Plan in connection with Offered Securities during the Merger and 90-day period referred to the holders of Company Warrants, including, without limitation, any such notice as may be required to cause each Company Option and Company Warrant to terminate, to the extent not exercised, as of the Effective Time. (e) Each of the Stockholder Notice, any materials to be submitted to the Stockholders in connection with the solicitation of their approval of any Section 280G Payment or any of the other matters set forth in Section 5.3(b) hereof and any of the materials to be submitted to the holders of Company Options pursuant to Section 5.3(d) hereof (collectively, the “Soliciting Materials”) shall be pursuant to and in accordance with all applicable provisions of Delaware Law, the Company Charter Documents and the terms of the Plan, as appropriate. The Soliciting Materials shall be subject to prior review and approval by CS, which approval shall not be unreasonably withheld. Soliciting Materials sent to Stockholders shall include, without limitation, (i) information regarding the Company, the terms of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, (ii) the recommendation of the Board of Directors of the Company in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, (iii) a statement to the effect that this Agreement, the Merger and the transactions contemplated by this Agreement have been adopted and approved by the Requisite Stockholder Vote under Delaware Law and the Company Charter Documents, (iv) notice in accordance with Section 262 of Delaware Law that the recipient may be entitled to appraisal rights, (v) a copy of this Agreement, and (vi) a copy of Section 262 of Delaware Law. Anything to the contrary contained herein notwithstanding, the Company shall not include in the Soliciting Materials any information with respect to CS or its affiliates or associates, the form and content of which shall not have been consented to in writing by CS prior to such inclusion3.3. (f) The Board of Directors of the Company shall not revoke or modify its approval of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, including its recommendation in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, in each case except for such actions that counsel has advised may violate the fiduciary duties of the Board of Directors.

Stockholder Notice. (a) As soon as practical Within two (2) hours following the execution of this Agreement, the Company will use commercially reasonable efforts to shall deliver to CS Parent the duly and validly executed Stockholder Written Consents constituting approval and adoption by the Requisite Stockholder Vote of (i) this Agreement, the Merger and the transactions contemplated by this Agreement, (ii) the escrow and indemnification obligations of the Indemnifying Parties set forth in Article VII hereof and the Escrow Agreement and the deposit of cash equal to the Indemnity Escrow Amount and the Net Working Capital Adjustment Escrow Amount into the applicable Escrow Fund, and (iii) the appointment of Nxx Xxxxxxx, as the Stockholder Representative (the “Stockholder Approval”)Consent. (b) As soon as practical following The Company shall promptly, but in no event later than five (5) Business Days after the execution date of this Agreement: (i) deliver notice to its Stockholders of each stockholder who failed to execute the Stockholder Approval Consent of action taken pursuant to the Stockholder Consent and the availability of appraisal rights, pursuant to and in accordance with the applicable provisions of Delaware Law and the Company Charter Documents (the “Stockholder Notice”); (ii) solicit the Stockholders who have not already executed Stockholder Written Consents to waive their appraisal rights and approve the matters set forth in Section 5.3(a) hereof; and (iiiii) submit to the Stockholders for approval (in a manner reasonably satisfactory to CSParent), by such number of Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits with respect to which the affected individuals have executed waivers of those payments or benefits and that may separately or in the aggregate, constitute Section 280G Payments (which determination shall be made by the Company and shall be subject to reasonable review and reasonable approval by CSParent, which approval shall not be unreasonably withheld, conditioned or delayed), such that such payments and benefits shall not be deemed to be Section 280G PaymentsPayments if approved by the requisite Stockholders, and, if applicable, prior to the Effective TimeClosing, the Company shall deliver to CS Parent evidence reasonably satisfactory to CS Parent that (A) a Stockholder stockholder vote was solicited and adequate disclosure was provided to all Stockholders in conformance with Section 280G and the regulations promulgated thereunder and the requisite Stockholder stockholder approval was obtained with respect to any Section 280G Payments that were subject to the Stockholder stockholder vote, or (B) that the 280G Stockholder approval was not obtained and, as a consequence, that such payments and/or benefits shall not be made or provided to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the waivers of those payments and/or benefits, which were executed by the affected individuals prior to the Stockholder stockholder vote. (c) Notwithstanding the foregoing and subject to Section 5.1, Section 5.8 and Section 5.11 hereof, the Company shall use commercially reasonable efforts following the delivery of materials contemplated by Section 5.3(b)(i) hereof to ensure that no Stockholder will be able to exercise appraisal or similar rights if such Stockholder has not perfected such rights prior to Closing. (d) The Company shall promptly promptly, but in no event later than five (5) Business Days after the date of this Agreement, provide such notice to the holders of Company Options as reasonably required by the terms of the Plan Plan, Company Warrant or other applicable agreement in connection with the Merger and to the holders of Company WarrantsMerger, including, without limitation, including any such notice as may be required to cause each Company Option and Company Warrant to terminate, (to the extent not exercised, exercised or converted) to terminate as of the Effective Time. (ed) Each of the Stockholder Notice, any materials to be submitted to the Stockholders in connection with the solicitation of their approval of any Section 280G Payment or any of the other matters set forth in Section 5.3(b5.1(b) hereof of this Agreement and any of the materials to be submitted to the holders of Company Options pursuant to Section 5.3(d5.1(c) hereof of this Agreement (collectively, the “Soliciting Materials”) shall be pursuant to and in accordance with all applicable provisions of Delaware Law, the Company Charter Documents and the terms of the Plan, Company Warrant or other applicable agreement, as appropriate. The Soliciting Materials shall be subject to prior review and reasonable approval by CS, Parent (which approval shall not be unreasonably withheld. Soliciting Materials sent to Stockholders shall include, without limitation, (i) information regarding the Company, the terms of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, (ii) the recommendation of the Board of Directors of the Company in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, (iii) a statement to the effect that this Agreement, the Merger and the transactions contemplated by this Agreement have been adopted and approved by the Requisite Stockholder Vote under Delaware Law and the Company Charter Documents, (iv) notice in accordance with Section 262 of Delaware Law that the recipient may be entitled to appraisal rights, (v) a copy of this Agreement, and (vi) a copy of Section 262 of Delaware Lawconditioned or delayed). Anything to the contrary contained herein notwithstanding, the Company shall not include in the Soliciting Materials any information with respect to CS Parent or its affiliates Affiliates or associates, the form and content of which shall not have been consented to in writing by CS Parent prior to such inclusion. (fe) The Board board of Directors directors of the Company shall not revoke or modify its unanimous approval of this Agreement, the Merger, Merger the other transactions contemplated by this Agreement and any Section 280G Payment, including its unanimous recommendation in favor of this Agreement, the Merger, the other transactions contemplated by this Agreement and any Section 280G Payment, in each case except for such actions that counsel has advised may violate the fiduciary duties of the Board of Directors.

Stockholder Notice. (a) As soon The Company shall use its Reasonable Best Efforts to send, as practical following promptly as practicable and pursuant to Sections 228 and 262(d) of the execution Delaware General Corporation Law, a written notice to all stockholders of this Agreement, the Company will use commercially reasonable efforts to deliver to CS that did not execute the duly and validly executed Stockholder Written Consents constituting approval and adoption by the Requisite Stockholder Vote of (i) Consent informing them that this Agreement, the Merger and the transactions contemplated by this Agreement, (ii) the escrow and indemnification obligations of the Indemnifying Parties set forth in Article VII hereof and the Escrow Agreement and the deposit of cash equal to Merger were adopted and approved by the Indemnity Escrow Amount and the Net Working Capital Adjustment Escrow Amount into the applicable Escrow Fund, and (iii) the appointment of Nxx Xxxxxxx, as the Stockholder Representative (the “Stockholder Approval”). (b) As soon as practical following the execution of this Agreement: (i) deliver notice to its Stockholders stockholders of the Stockholder Approval Company and the availability of that appraisal rights, rights are available for their Company Shares pursuant to and in accordance with Section 262 of the applicable provisions Delaware General Corporation Law (which notice shall include a copy of Delaware Law and the Company Charter Documents such Section 262) (this notice is referred to herein as the “Stockholder Notice”);. The Company agrees not to distribute the Stockholder Notice until the Buyer has had a reasonable opportunity to review and comment on the Stockholder Notice and the Stockholder Notice has been approved by the Buyer (which approval may not be unreasonably withheld, conditioned or delayed). The Company shall promptly inform the Buyer of the date on which the Stockholder Notice was sent. (iib) solicit The Company shall ensure that the Stockholders who have Stockholder Notice does not already executed Stockholder Written Consents contain any untrue statement of a material fact or omit to waive their appraisal rights and approve state a material fact necessary in order to make the matters set forth statements made, in Section 5.3(a) hereof; and (iii) submit to the Stockholders for approval (in a manner reasonably satisfactory to CS), by such number of Stockholders as is required by the terms of Section 280G(b)(5)(B) light of the Codecircumstances under which they were made, any payments and/or benefits not misleading (provided that may separately or in the aggregate, constitute Section 280G Payments (which determination shall be made by the Company and shall be subject to reasonable review and approval by CS), such that such payments and benefits shall not be deemed to be Section 280G Payments, and, if applicable, prior to responsible for the Effective Time, accuracy or completeness of any information concerning the Company shall deliver to CS evidence reasonably satisfactory to CS that (A) a Stockholder vote was solicited Buyer or the Transitory Subsidiary furnished by the Buyer in conformance with Section 280G and the regulations promulgated thereunder and the requisite Stockholder approval was obtained with respect to any Section 280G Payments that were subject to writing for inclusion in the Stockholder vote, or (B) that the 280G Stockholder approval was not obtained and, as a consequence, that such payments and/or benefits shall not be made or provided to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the waivers of those payments and/or benefits, which were executed by the affected individuals prior to the Stockholder voteNotice). (c) Notwithstanding The Buyer shall ensure that any information furnished by the foregoing and subject Buyer to Section 5.1, Section 5.8 and Section 5.11 hereof, the Company shall use commercially reasonable efforts following in writing for inclusion in the delivery Stockholder Notice does not contain any untrue statement of materials contemplated by Section 5.3(b)(i) hereof a material fact or omit to ensure that no Stockholder will be able state a material fact necessary in order to exercise appraisal or similar rights if such Stockholder has make the statements made, in light of the circumstances under which they were made, not perfected such rights prior to Closingmisleading. (d) The Company shall promptly provide such notice to the holders of Company Options as reasonably required by the terms of the Plan in connection with the Merger and to the holders of Company Warrants, including, without limitation, any such notice as may be required to cause Major Stockholders each Company Option and Company Warrant to terminate, to the extent not exercised, as of the Effective Time. (e) Each of the Stockholder Notice, any materials to be submitted to the Stockholders in connection with the solicitation of their approval of any Section 280G Payment or any of the other matters set forth in Section 5.3(b) hereof and any of the materials to be submitted to the holders of Company Options pursuant to Section 5.3(d) hereof (collectively, the “Soliciting Materials”) shall be pursuant to and in accordance with all applicable provisions of Delaware Law, the Company Charter Documents and the terms of the Plan, as appropriate. The Soliciting Materials shall be subject to prior review and approval by CS, which approval shall not be unreasonably withheld. Soliciting Materials sent to Stockholders shall include, without limitation, agree (i) information regarding not to amend, modify, rescind or revoke the Company, the terms of this Agreement, the Merger, the transactions contemplated by this Agreement Written Consent and any Section 280G Payment, (ii) the recommendation of the Board of Directors of the not to vote any Company Shares in favor of this Agreementany other acquisition (whether by way of merger, the Mergerconsolidation, the transactions contemplated by this Agreement and any Section 280G Paymentshare exchange, (iiistock purchase or asset purchase) of all or a statement to the effect that this Agreement, the Merger and the transactions contemplated by this Agreement have been adopted and approved by the Requisite Stockholder Vote under Delaware Law and the Company Charter Documents, (iv) notice in accordance with Section 262 of Delaware Law that the recipient may be entitled to appraisal rights, (v) a copy of this Agreement, and (vi) a copy of Section 262 of Delaware Law. Anything to the contrary contained herein notwithstanding, the Company shall not include in the Soliciting Materials any information with respect to CS or its affiliates or associates, the form and content of which shall not have been consented to in writing by CS prior to such inclusion. (f) The Board of Directors majority of the Company shall not revoke outstanding capital stock or modify its approval of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, including its recommendation in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, in each case except for such actions that counsel has advised may violate the fiduciary duties assets of the Board of DirectorsCompany.

Stockholder Notice. (a) As soon as practical Nominations by stockholders shall be made pursuant to timely notice in writing to the President or Secretary of the Corporation. To be timely, a stockholder's notice must be received at the principal executive offices of the Corporation not fewer than 60 days, nor more than 90 days, prior to the scheduled date of a meeting, regardless of any postponement, deferral or adjournment of that meeting to a later date; provided, however, that if fewer than 70 days notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so delivered or received not later than the close of business on the tenth day following the execution of this Agreement, the Company will use commercially reasonable efforts to deliver to CS the duly and validly executed Stockholder Written Consents constituting approval and adoption by the Requisite Stockholder Vote of (i) this Agreement, the Merger and the transactions contemplated by this Agreement, (ii) the escrow and indemnification obligations earlier of the Indemnifying Parties day on which such notice of the date of such meeting was mailed or the day on which such public disclosure was made. A stockholder's notice shall set forth in Article VII hereof and the Escrow Agreement and the deposit of cash equal to the Indemnity Escrow Amount and the Net Working Capital Adjustment Escrow Amount into the applicable Escrow Fund, and (iii) the appointment of Nxx Xxxxxxx, as the Stockholder Representative (the “Stockholder Approval”). (b) As soon as practical following the execution of this Agreementforth: (i1) deliver notice as to its Stockholders each person whom the stockholder proposes to nominate for election or reelection as a director (A) the name, age, business address and residence address of such person, (B) the principal occupation or employment of such person, (C) the class and number of shares of the Stockholder Approval and Corporation which are beneficially owned by such person on the availability date of appraisal rightssuch stockholder's notice, and (D) any other information relating to such person that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required, in each case, pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended (including without limitation such person's written consent to being named in the proxy statement as a nominee and in accordance with the applicable provisions of Delaware Law and the Company Charter Documents (the “Stockholder Notice”to serving as a director if elected); (ii) solicit the Stockholders who have not already executed Stockholder Written Consents to waive their appraisal rights and approve the matters set forth in Section 5.3(a) hereof; and (iii2) submit as to the Stockholders for approval (in a manner reasonably satisfactory to CS), by such number of Stockholders as is required by stockholder giving the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that may separately or in the aggregate, constitute Section 280G Payments (which determination shall be made by the Company and shall be subject to reasonable review and approval by CS), such that such payments and benefits shall not be deemed to be Section 280G Payments, and, if applicable, prior to the Effective Time, the Company shall deliver to CS evidence reasonably satisfactory to CS that notice (A) a Stockholder vote was solicited in conformance with Section 280G the name and address, as they appear on the regulations promulgated thereunder Corporation's books, of such stockholder and the requisite Stockholder approval was obtained with respect any other stockholders known by such stockholder to any Section 280G Payments that were subject to the Stockholder votebe supporting such nominees, or and (B) that the 280G Stockholder approval was not obtained and, as a consequence, that such payments and/or benefits shall not be made or provided to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the waivers class and number of those payments and/or benefits, which were executed by the affected individuals prior to the Stockholder vote. (c) Notwithstanding the foregoing and subject to Section 5.1, Section 5.8 and Section 5.11 hereof, the Company shall use commercially reasonable efforts following the delivery of materials contemplated by Section 5.3(b)(i) hereof to ensure that no Stockholder will be able to exercise appraisal or similar rights if such Stockholder has not perfected such rights prior to Closing. (d) The Company shall promptly provide such notice to the holders of Company Options as reasonably required by the terms shares of the Plan in connection with Corporation which are beneficially owned by such stockholder on the Merger date of such stockholder's notice and to the holders of Company Warrants, including, without limitation, by any other stockholders known by such notice as may be required to cause each Company Option and Company Warrant to terminate, to the extent not exercised, as of the Effective Time. (e) Each of the Stockholder Notice, any materials stockholder to be submitted to supporting such nominees on the Stockholders in connection with the solicitation date of their approval of any Section 280G Payment or any of the other matters set forth in Section 5.3(b) hereof and any of the materials to be submitted to the holders of Company Options pursuant to Section 5.3(d) hereof (collectively, the “Soliciting Materials”) shall be pursuant to and in accordance with all applicable provisions of Delaware Law, the Company Charter Documents and the terms of the Plan, as appropriate. The Soliciting Materials shall be subject to prior review and approval by CS, which approval shall not be unreasonably withheld. Soliciting Materials sent to Stockholders shall include, without limitation, (i) information regarding the Company, the terms of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, (ii) the recommendation of the Board of Directors of the Company in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, (iii) a statement to the effect that this Agreement, the Merger and the transactions contemplated by this Agreement have been adopted and approved by the Requisite Stockholder Vote under Delaware Law and the Company Charter Documents, (iv) notice in accordance with Section 262 of Delaware Law that the recipient may be entitled to appraisal rights, (v) a copy of this Agreement, and (vi) a copy of Section 262 of Delaware Law. Anything to the contrary contained herein notwithstanding, the Company shall not include in the Soliciting Materials any information with respect to CS or its affiliates or associates, the form and content of which shall not have been consented to in writing by CS prior to such inclusionstockholder's notice. (f) The Board of Directors of the Company shall not revoke or modify its approval of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, including its recommendation in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, in each case except for such actions that counsel has advised may violate the fiduciary duties of the Board of Directors.

Stockholder Notice. (a) As soon as practical Within ten (10) Business Days following the execution of this AgreementAgreement Date, the Company will use commercially reasonable efforts shall prepare, with the cooperation of Parent, and send to deliver each Company Stockholder (other than the Company Stockholders who previously executed the Company Stockholder Approval), a notice (as it may be amended or supplemented from time to CS time, the duly and validly executed “Company Stockholder Written Consents constituting approval and adoption by the Requisite Stockholder Vote of Notice”) comprising (i) the notice contemplated by Section 228(e) of the DGCL of the taking of a corporate action without a meeting by less than a unanimous written consent, (ii) the notice contemplated by Section 262(d)(2) of the DGCL, together with a copy of Section 262 of the DGCL, and (iii) an information statement to the Company Stockholders. The Company Stockholder Notice shall include (x) a statement to the effect that the Company Board had unanimously recommended that the Company Stockholders vote in favor of the adoption of this Agreement, Agreement and the approval of the Merger and the transactions contemplated by this Agreement, (ii) the escrow and indemnification obligations of the Indemnifying Parties set forth in Article VII hereof and the Escrow Agreement and the deposit of cash equal to the Indemnity Escrow Amount and the Net Working Capital Adjustment Escrow Amount into the applicable Escrow Fundhereby, and (iiiy) the appointment of Nxx Xxxxxxx, such other information as the Stockholder Representative (the “Stockholder Approval”). (b) As soon as practical following the execution of this Agreement: (i) deliver notice to its Stockholders of the Stockholder Approval and the availability of appraisal rights, pursuant to and in accordance with the applicable provisions of Delaware Law Parent and the Company Charter Documents (may agree is required or advisable under the “DGCL to be included therein. Following the mailing of the Company Stockholder Notice”); (ii) solicit the Stockholders who have not already executed Stockholder Written Consents to waive their appraisal rights and approve the matters set forth in Section 5.3(a) hereof; and (iii) submit , no amendment or supplement to the Stockholders for approval (in a manner reasonably satisfactory to CS), by such number of Stockholders as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that may separately or in the aggregate, constitute Section 280G Payments (which determination Company Stockholder Notice shall be made by the Company without the prior written approval of Parent. Each of Parent and the Company agrees to provide promptly to the other such information concerning its business, financial statements and affairs as, in the reasonable judgment of Parent or its counsel, may be required or advisable to be included under the DGCL in the Company Stockholder Notice or in any amendment or supplement thereto, and Parent and the Company agree to cause their respective Representatives to cooperate in the preparation of the Company Stockholder Notice and any amendment or supplement thereto. (b) Within ten (10) Business Days following the Agreement Date, Parent shall prepare, with the cooperation of the Company, and send to each Parent Stockholder (other than the Parent Stockholders who previously executed the Parent Stockholder Approval), a notice (as it may be amended or supplemented from time to time, the “Parent Stockholder Notice”) comprising (i) the notice contemplated by Section 228(e) of the DGCL of the taking of a corporate action without a meeting by less than a unanimous written consent, (ii) the notice contemplated by Section 262(d)(2) of the DGCL, together with a copy of Section 262 of the DGCL, and (iii) an information statement to the Parent Stockholders. The Parent Stockholder Notice shall include (x) a statement to the effect that the Parent Board had unanimously recommended that the Parent Stockholders vote in favor of the adoption of this Agreement and the approval of the Merger and the transactions contemplated hereby, and (y) such other information as Parent and the Company may agree is required or advisable under the DGCL to be included therein. Following the mailing of the Parent Stockholder Notice, no amendment or supplement to the Parent Stockholder Notice shall be subject made by Parent without the prior written approval of the Company. Each of Parent and the Company agrees to provide promptly to the other such information concerning its business, financial statements and affairs as, in the reasonable review and approval by CS)judgment of the Company or its counsel, such that such payments and benefits shall not may be deemed required or advisable to be Section 280G Paymentsincluded under the DGCL in the Parent Stockholder Notice or in any amendment or supplement thereto, and, if applicable, prior and Parent and the Company agree to cause their respective Representatives to cooperate in the preparation of the Parent Stockholder Notice and any amendment or supplement thereto. (c) Prior to the Effective Time, the Company shall deliver provide the Company Stockholders (other than the Company Stockholders so notified pursuant to CS evidence reasonably satisfactory to CS that (ASection 5.1(a)) a Stockholder vote was solicited in conformance with Section 280G valid and timely notification of the regulations promulgated thereunder and the requisite Stockholder approval was obtained with respect to any Section 280G Payments that were subject to the Stockholder vote, or (B) that the 280G Stockholder approval was not obtained and, as a consequence, that such payments and/or benefits shall not be made or provided Merger to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the waivers of those payments and/or benefits, which were executed by the affected individuals prior to the Stockholder vote. (c) Notwithstanding the foregoing and subject to Section 5.1, Section 5.8 and Section 5.11 hereof, the Company shall use commercially reasonable efforts following the delivery of materials contemplated by Section 5.3(b)(i) hereof to ensure that no Stockholder will be able to exercise appraisal or similar rights if such Stockholder has not perfected such rights prior to Closing. (d) The Company shall promptly provide such notice to the holders of Company Options as reasonably required by the terms of the Plan in connection with the Merger and to the holders of Company Warrants, including, without limitation, any such notice as may be required to cause each Company Option and Company Warrant to terminate, to the extent not exercised, as of the Effective Time. (e) Each of the Stockholder Notice, any materials to be submitted to the Stockholders in connection with the solicitation of their approval of any Section 280G Payment or any of the other matters set forth in Section 5.3(b) hereof and any of the materials to be submitted to the holders of Company Options pursuant to Section 5.3(d) hereof (collectively, the “Soliciting Materials”) shall be pursuant to and in accordance with all applicable provisions of Delaware Law, the Company Charter Documents and the terms of the Plan, as appropriate. The Soliciting Materials shall be subject to prior review and approval by CS, which approval shall not be unreasonably withheld. Soliciting Materials sent to Stockholders shall include, without limitation, (i) information regarding the Company, the terms conditions of this Agreement, the MergerOrganizational Documents, any Laws, or any agreement or instruments governing the transactions contemplated by this Agreement and any Section 280G Payment, (ii) the recommendation of the Board of Directors Equity Interests of the Company in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, (iii) a statement to the effect that this Agreement, the Merger and the transactions contemplated by this Agreement have been adopted and approved by the Requisite Stockholder Vote under Delaware Law and other than the Company Charter Documents, (iv) notice in accordance with Section 262 of Delaware Law that the recipient may be entitled to appraisal rights, (v) a copy of this Agreement, and (vi) a copy of Section 262 of Delaware Law. Anything to the contrary contained herein notwithstanding, the Company shall not include in the Soliciting Materials any information with respect to CS or its affiliates or associates, the form and content of which shall not have been consented to in writing by CS prior to such inclusionCapital Stock). (f) The Board of Directors of the Company shall not revoke or modify its approval of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, including its recommendation in favor of this Agreement, the Merger, the transactions contemplated by this Agreement and any Section 280G Payment, in each case except for such actions that counsel has advised may violate the fiduciary duties of the Board of Directors.