Common use of Stockholders Consent Clause in Contracts

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following the execution and delivery of this Agreement by all Parties, the Company shall obtain the Requisite Company Vote pursuant to written consents of its Stockholders (the “Written Consent”). The materials submitted to such Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement and the Transactions, including the Second Merger, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement and the Transactions, including the Second Merger, in accordance with Section 228(e) of the DGCL and the 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 include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (a) As The Company shall use commercially reasonable efforts to obtain, promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents of its Stockholders (the “Written Consent”). The materials submitted to such Stockholders in connection with the Written Consent Approval, which efforts shall include providing the Company Board Recommendation. Promptly following receipt of Recommendation to the Written Consent, the Company shall deliver a copy of such Written Consent to ParentStockholders. (b) Promptly following, but in no event more than five (5) Business Days after, receipt of the Written ConsentRequisite Company Approval, the Company shall prepare and mail mail, as applicable, (i) to every Stockholder that is the subject to a drag-along obligation, a drag-along notice in compliance with this Section 5.4(b) (“Drag-Along Notice”) or (ii) in the case of every Stockholder not subject to a drag-along obligation and that did not adopt this Agreement and approve the transactions contemplated hereby, a notice in compliance with this Section 5.4(b) (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent). The Stockholder Notice and Drag-Along Notice shall each (iA) be include a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement and approved the TransactionsMerger and the other transactions contemplated hereby, including the Second Merger, and (iiB) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consentsuch written consent, including the approval and adoption of this Agreement and approval of the Transactions, including Merger and the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the bylaws of the Company and (iii) Company. Each Stockholder Notice shall notify such Stockholders of their dissent and appraisal rights pursuant to Section 262 of the DGCL. The Stockholder Notice shall include therewith a correct copy of Section 262 of Delaware Law the DGCL and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to start the twenty (20) day period during which a Stockholder must demand appraisal of such Stockholder’s Company Common Stock as contemplated by Section 262(d)(2) of the DGCL. All materials submitted to the Stockholders in accordance with this Section 5.06(b5.4(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (a) As The Company shall use its commercially reasonable efforts to obtain, as promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following from and after the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents of its Stockholders (the “Written Consent”). The materials submitted to such Stockholders Stockholder Approval in connection accordance with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consentapplicable law, the Company shall deliver a copy Certificate of such Written Consent to ParentIncorporation and the Bylaws. (b) Promptly followingImmediately following the execution of this Agreement by MergerCo, but Parent, as sole stockholder of MergerCo, shall adopt and approve, in no event than five accordance with applicable law, this Agreement by written consent as permitted by its certificate of incorporation and bylaws. (c) Within ten (10) Business Days after, receipt of after the Written Consentdate at which Requisite Stockholder Approval is obtained by the Company, the Company shall prepare and mail a notice circulate to such non-consenting Stockholders an information statement (the “Stockholder NoticeInformation Statement”) ), a request for waiver of dissenter’s rights, and a consent solicitation with respect to every Stockholder that did not execute certain matters in connection with the Written Consenttransactions contemplated by this Agreement, and shall use commercially reasonable efforts to solicit waivers and consents thereto. The Stockholder Notice Information Statement shall (i) include the required notice under the DGCL that the holders of Common Stock are or may be a statement entitled to assert dissenters’ rights under such Law in connection with the Merger. The Company will promptly advise Parent if at any time prior to the effect Effective Time the Company shall obtain knowledge of any facts that might make it necessary to amend or supplement the Information Statement in order to make the statements contained therein not misleading or to comply with applicable Law. The Information Statement shall inform the Company’s stockholders that the Board of Directors of the Company Board unanimously determined recommended that the Second holders of Common Stock approve the Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement and the Transactions, including the Second Merger, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement and the Transactions, including the Second Mergershall, in accordance with the requirements of Section 228(e) of the DGCL and DGCL, notify any holder of Common Stock who did not execute the bylaws Requisite Stockholder Approval of the Company and (iii) notify such corporate action taken by those Stockholders of their dissent and appraisal rights pursuant who did execute the Requisite Stockholder Approval. Any materials to Section 262 of the DGCL. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 Stockholders by the Stockholders Company in accordance with this Section 5.06(b7.1(c) shall be subject to Parent’s advance review and reasonable approvalreview.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day The Company shall use its commercially reasonable efforts to obtain, within ten (10) days following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents of its the Stockholders in form satisfactory to Purchaser (the “Written Consent”). The materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to ParentPurchaser. (b) Promptly following, but in no event more than five three Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the 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 include therewith a copy of Section 262 of Delaware Law and all such other information as Parent Purchaser shall reasonably request, and shall be sufficient in form and substance to start the twenty (20) day period during which a Stockholder must demand appraisal of such Stockholder’s Company Common Stock as contemplated by Section 262(d)(2) of the DGCL. All materials submitted to the Stockholders in accordance with this Section 5.06(b4.4(b) shall be subject to ParentPurchaser’s advance review and reasonable approval.

Stockholders Consent. (a) As promptly The Company shall use its reasonable best efforts to solicit, as soon as practicable but and not later than 11:59 p.m. Central Time on the first Business Day twenty-four (24) hours following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to fully executed written consents of its Stockholders from the Stockholder(s) (the “Written Consent”). The materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event later than five three (3) Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement and the Transactions, including the Second Merger, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, of the Statutory Merger Agreement, the Merger and the Transactions, including the Second Merger, in accordance with Section 228(e) of the DGCL and the bylaws of the Company other transactions contemplated hereby and (iiiii) notify such Stockholders of their dissent and appraisal rights pursuant to Section 262 Chapter 13 of the DGCLCCC. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all such other information as required by the CCC and as Parent shall reasonably request, and shall be sufficient in form and substance to 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) Chapter 13 of the DGCLCCC. All materials submitted to the Stockholders in accordance with this Section 5.06(b5.04(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on On the first Business Day following the execution and delivery of this Agreement by all PartiesClosing Date, the Company shall obtain the Requisite Company Vote pursuant to written consents of its the Stockholders in substantially the form attached hereto as Exhibit I (the “Written Consent”). The materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board RecommendationRecommendation and all other materials required by the DGCL. Promptly following receipt of the Written Consent, on the Closing Date, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five Business Days after, receipt of the Written Consent, the The Company shall prepare has prepared and mail delivered to Parent a notice (the “Stockholder Notice”) to be sent to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be includes a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide provides the Stockholders to whom it is will be sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the bylaws of the Company and (iii) notify notifies such Stockholders of their dissent and appraisal rights pursuant to Section 262 of the DGCL, to the extent not previously waived. The Stockholder Notice shall include includes therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably requestrequested, and shall be is sufficient in form and substance to start the twenty (20) day period during which a Stockholder must demand appraisal of such Stockholder’s Common Capital Stock as contemplated by Section 262(d)(2) of the DGCL. All materials submitted . (c) Promptly following the Closing Date, Parent or the Surviving Corporation shall deliver, or cause to be delivered, the Stockholders Stockholder Notice to each Stockholder that did not execute the Written Consent at the addresses of each such Stockholder set forth in accordance with this Section 5.06(b) shall be subject to Parent’s advance review and reasonable approvalthe Consideration Spreadsheet.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on In connection with seeking the first Target Stockholder Approval, within fifteen (15) Business Day Days following the execution and delivery of this Agreement by all PartiesAgreement, Target shall deliver an information statement describing this Agreement, the Company shall obtain Merger and the Requisite Company Vote pursuant to written consents of its Stockholders other transactions contemplated hereby (the form and substance of which shall be mutually agreed by Target and Purchaser) to the Stockholders for the purpose of soliciting the Target Stockholder Approval and acknowledging the conversion of the Target Preferred Stock into shares of Target Common Stock (such information statement, together with the attachments thereto, the “Written ConsentInformation Statement”). The materials submitted to such Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written ConsentAdditionally, the Company shall deliver a copy of the Information Statement shall be delivered by Target to the Optionholders. Purchaser and Target agree to provide promptly to the other such Written Consent to Parent. (b) Promptly followinginformation concerning its business and financial statements and affairs as, but in no event than five Business Days after, receipt the reasonable judgment of the Written Consentproviding party or its counsel, may be required or appropriate for inclusion in the Company Information Statement or in any amendments or supplements to the Information Statement. Each of the parties hereto will promptly advise the other parties in writing if at any time prior to the Effective Time any party shall prepare and mail a notice (obtain knowledge of any facts that might make it necessary or appropriate to amend or supplement the “Stockholder Notice”) Information Statement or any other Soliciting Materials in order to every Stockholder that did make the statements contained or incorporated by reference therein not execute the Written Consentmisleading or to comply with applicable Law. The Stockholder Notice shall (i) be a statement Target Board will recommend to the effect Stockholders that such Stockholders adopt this Agreement and the transactions contemplated hereby, and the Information Statement shall contain such recommendation, as well as the conclusion of the Target Board that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) terms and conditions of the DGCL and Merger are in the best interests of the Stockholders and unanimously approved and adopted this Agreement and in the Transactions, including opinion of the Second Merger, (ii) Target Board. The Information Statement shall provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement and the Transactions, including the Second Merger, in accordance with Section 228(e) of the DGCL and the bylaws of the Company and (iii) notify such to Stockholders of their dissent and appraisal rights pursuant to Section 262 of the DGCL. The Stockholder Notice Information Statement shall include therewith a copy of Section 262 of Delaware Law and all such other information as Parent Purchaser shall reasonably request, and shall be sufficient in form and substance to start the twenty (20) day period during which a Stockholder must demand appraisal of such StockholderPerson’s Common Stock Target Shares as contemplated by Section 262(d)(2) of the DGCL. Notwithstanding anything to the contrary contained herein, Purchaser and Target shall not include in the Information Statement any information with respect to Purchaser, Merger Sub or their respective Affiliates or Representatives, the form and content of which information shall not have been approved by Purchaser prior to such inclusion. The Target Board shall not alter, modify, change or revoke its approval of this Agreement, the Merger and the transactions contemplated hereby, nor shall Target or the Target Board encourage or solicit the Stockholders to alter, modify, change or revoke their approval of this Agreement, the Merger and the transactions contemplated hereby. All materials Soliciting Materials submitted to the Stockholders in accordance with this Section 5.06(b7.16(a) shall be subject to ParentPurchaser’s advance review and reasonable approval. (b) Target shall use its commercially reasonable efforts to obtain, as soon as practicable following the delivery of the Information Statement, the Target Stockholder Approval pursuant to the Written Consent. Promptly following receipt of the Written Consent, Target shall deliver a copy of such Written Consent to Purchaser. (c) Promptly following, but in no event later than fifteen (15) Business Days after, receipt of the Written Consent executed by the Principals, Target shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. (d) In addition, Target shall submit for approval by the Stockholders by the requisite vote (and in a manner reasonably satisfactory to Purchaser) any payments or benefits that Purchaser determines may constitute a “parachute payment” pursuant to Section 280G of the Code, such that all such payments and benefits shall not be deemed to be “parachute payments” pursuant to Section 280G of the Code or shall be exempt from such treatment under such Section 280G, and deliver to Purchaser evidence reasonably satisfactory to Purchaser that a vote of Stockholders was held in conformance with Section 280G and the regulations thereunder, or that such requisite Stockholder approval has not been obtained with respect to any payment or benefit that may be deemed to constitute a “parachute payment” within the meaning of Section 280G of the Code and as a consequence, that such “parachute payment” shall not be made or provided.

Stockholders Consent. (ai) As promptly as practicable but not Promptly after the Registration Statement has been declared effective under the Securities Act, and in any event no later than 11:59 p.m. Central Time on the first Business Day following the execution and delivery of this Agreement by all Partiesforty-eight (48) hours thereafter, the Company shall obtain the Requisite Company Vote Stockholder Written Consent executed by the Company Minimum Holders and sufficient for the Company Stockholder Approval in lieu of a meeting pursuant to written consents Section 228 of the DGCL, for purposes of (A) adopting this Agreement and approving the Merger and all other Contemplated Transactions, (B) acknowledging that such adoption and approval of the Merger is irrevocable and that such stockholder is aware it may have the right to demand appraisal for its Stockholders shares pursuant to Section 262 of the DGCL, a copy of which was attached thereto, and that such stockholder has received and read a copy of Section 262 of the DGCL, and (C) acknowledging that by its approval of the “Written Consent”). The materials submitted Merger it is not entitled to such Stockholders appraisal or dissenters’ rights with respect to its shares in connection with the Written Consent Merger and thereby waives any rights to receive payment of the fair value of its capital stock under the DGCL. Under no circumstances shall include the Company assert that any other approval or consent is necessary by its stockholders to approve the Merger or this Agreement. In addition, the Company shall seek the delivery by each Company Stockholder of a Joinder. (ii) The Company agrees that (i) the Company Board shall recommend that the Company’s stockholders vote (or take action by written consent) to adopt and approve this Agreement and the Contemplated Transactions and shall use commercially reasonable efforts to solicit such approval within the time set forth in Section 5.11(a)(i) (the recommendation of the Company Board that the Company’s stockholders approve the Merger being referred to as the “Company Board Recommendation”); and (ii) the Company Board Recommendation shall not be withdrawn or modified (and the Company Board shall not publicly propose to withdraw or modify the Company Board Recommendation. Promptly ) in a manner adverse to KBL, and no resolution by the Company Board or any committee thereof to withdraw or modify the Company Board Recommendation in a manner adverse to KBL or to adopt, approve or recommend (or publicly propose to adopt, approve or recommend) any Company Acquisition Proposal shall be adopted or proposed. (iii) The Company’s obligation to solicit the consent of its stockholders to sign the Company Stockholders Written Consent in accordance with Section 5.11(a) shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission of any Company Acquisition Proposal or by any Company Change in Recommendation. (iv) In connection with the solicitation of the Company Stockholder Written Consent from its stockholders to adopt this Agreement and approve the Merger, the Company shall furnish to KBL, as promptly as possible, and in any event within forty-eight (48) hours after receiving notice from KBL that the Registration Statement shall have been declared effective under the Securities Act, a copy of such executed Company Stockholder Written Consent. (v) Reasonably promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five Business Days after, receipt of the Stockholder Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Company Stockholder that did not execute the Company Stockholder Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Company Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the other Contemplated Transactions, including the Second Merger, (ii) provide the Company Stockholders to whom it is sent with notice of the actions taken in the Company Stockholder Written Consent, including the adoption and approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other Contemplated Transactions in accordance with Section 228(e) of the DGCL and the bylaws of the Company Charter and Company Bylaws and (iii) notify such Stockholders include a description of their dissent and the appraisal rights pursuant to Section 262 of the Company’s stockholders available under the DGCL. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all , along with such other information as Parent shall reasonably request, is required thereunder and shall be sufficient in form and substance pursuant to 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 DGCLapplicable Law. All materials (including any amendments thereto) submitted to the Company Stockholders in accordance with this Section 5.06(b5.11(a)(v) shall be subject to ParentKBL’s advance review and reasonable approval.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following the execution and delivery of this Agreement by all Parties, the The Company shall use its reasonable best efforts to promptly obtain the Requisite Company Vote pursuant and deliver to written consents of its Stockholders (the “Written Consent”). The materials submitted to such Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt Buyer a true, correct and complete copy of the irrevocable and unconditional Stockholder Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five Business Days after, receipt of the Written Consent, the Company shall prepare executed and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of delivered by the Stockholders and unanimously approved and adopted this Agreement and named on Exhibit A hereto, evidencing the Transactions, including the Second Merger, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement and the Transactionsapproval of the Merger, including (i) the Second Mergerdeposit of the Escrow Shares and Escrow Cash into the Escrow Funds, (ii) the right of the Buyer Indemnified Parties, subject to the terms and conditions of this Agreement and the Escrow Agreement, to set off the amount of any Losses with respect to which the Indemnified Parties are entitled to indemnification against the Escrow Funds in accordance with Section 228(e) of and subject to the DGCL and the bylaws of the Company limitations set forth herein, and (iii) notify the appointment of the Stockholders’ Representative as the agent and attorney-in-fact for the Stockholders, having the powers and rights to limited liability and indemnification set forth herein. (b) In accordance with this Agreement, the DGCL, and the Certificate of Incorporation, the Company shall use its commercially reasonable efforts to obtain a written consent in the same form as the irrevocable and unconditional Stockholder Written Consent from all of its other Stockholders who are not signatories to the Stockholder Written Consent. In furtherance thereof, the Company shall promptly, but in no event later than ten (10) Business Days after the date hereof, deliver to its Stockholders a form of written consent together with notice and a description of the adoption of this Agreement and approval of the Merger and the other matters approved in the Stockholder Written Consent. The document containing such Stockholders information (the “Information Statement”) shall be prepared by the Company, shall, subject to Section 7.1(c), include the Board Recommendation (defined in Section 7.1(c)) and the notice required by Section 228 of their dissent the DGCL, and appraisal rights pursuant shall be reasonably satisfactory to Buyer. The Information Statement shall not, as of the date of mailing, contain any untrue statement of a material fact, or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading. The Company shall also deliver such notices and take such other actions as are required prior to the Closing to comply with the provisions of Section 262 of the DGCL. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and if the Merger is approved pursuant to Section 228 of the DGCL shall be sufficient in form and substance promptly give any notice required of it under Section 262(d)(2), such that any Stockholder entitled under the Appraisal Rights Provisions to start the twenty (20) day period during which a Stockholder must demand appraisal for its shares of Company Stock must do so on or before the Demand Date in order to perfect its statutory rights to such Stockholder’s Common Stock as contemplated by Section 262(d)(2appraisal. (c) The Board of Directors of the DGCL. All materials submitted Company shall not withdraw, alter, modify, change or revoke (i) its recommendation to the Stockholders to vote in accordance with favor of adoption and approval of this Section 5.06(bAgreement (the “Board Recommendation”) nor (ii) its approval of this Agreement, the Merger and the other transactions contemplated by this Agreement. (d) Promptly, but in any event within one (1) Business Day following execution of this Agreement by the parties hereto, MergerCo shall be subject deliver to Parent’s advance review the Company a true, correct and reasonable approvalcomplete copy of an action by written consent, executed and delivered by Buyer evidencing the adoption of this Agreement and the approval of the Merger.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day Immediately following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to a written consents consent of its the Stockholders in the form attached hereto as Exhibit H (the “Written Consent”). The materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event more than five two Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) 251 of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactionsother transactions contemplated hereby, including the Second Merger, and (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the bylaws of the Company and (iii) notify such Stockholders of their dissent and appraisal rights pursuant to Section 262 of the DGCLCompany. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b5.04(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following the execution and delivery The Board of this Agreement by all Parties, Directors of the Company shall obtain will submit (i) this Merger Agreement and the Requisite Company Vote pursuant Merger, (ii) the Amended and Restated Charter, (iii) the Contribution Transaction, and (iv) the Private Placement Offering to written consents of its Stockholders (the “Written Consent”)shareholders for their adoption and will recommend to its shareholders such adoption. The materials submitted to such Stockholders in In connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five Business Days after, receipt of the Written Consenttherewith, the Company shall prepare and mail a notice (file with the “Stockholder Notice”) SEC, as soon as practicable, the Information Statement and shall use its best efforts promptly to every Stockholder that did not execute obtain clearance by the Written Consentstaff of the SEC of the mailing of such material to its shareholders. The Stockholder Notice Company will use its best efforts to obtain the necessary approval of this Merger Agreement, the Amended and Restated Charter and the Private Placement Offering by its shareholders and will take as soon as practicable such other and further actions as may be required by this Merger Agreement and as may be required by law to effectuate the Merger and the other transactions contemplated hereby. In obtaining the authorization and approval of its shareholders, the Company shall comply with all applicable Federal and state securities and other laws in connection with the transactions to be effected hereunder. Without limiting the generality of the foregoing, the Company agrees that the information contained in the Information Statement (other than information as to ET furnished to the Company in writing by ET) (i) will comply in all respects with the provisions of the Exchange Act and the rules and regulations promulgated thereunder, and (ii) will not contain any untrue statement of a material fact or omit to state a material fact required to be a statement stated therein or necessary to make the statements therein not misleading, in each case when first mailed to the effect that Company's shareholders and at all times thereafter through the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) Effective Date of the DGCL and Merger. The Company shall not distribute any material to its shareholders in the best interests of the Stockholders and unanimously approved and adopted connection with this Merger Agreement and the Transactionstransactions contemplated hereby other than materials contained in the Information Statement cleared by the staff of the SEC, including except such additional material cleared by the Second Mergerstaff of the SEC. (b) Without limiting the generality of the foregoing, ET agrees that the information as to ET furnished to the Company in writing by ET for use in the Information Statement (i) will comply in all respects with the provisions of the Exchange Act and the rules and regulations promulgated thereunder, and (ii) provide will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the Stockholders statements therein not misleading, in each case on the date on which the Information Statement is first mailed or distributed to whom it is sent with notice the Company's shareholders ("Mailing Date") and at all times thereafter through the Effective Date of the actions taken in the Written Consent, including the approval and adoption of this Agreement and the Transactions, including the Second Merger, in accordance with Section 228(e) of the DGCL and the 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 include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (ai) As promptly as practicable but not later than 11:59 p.m. Central Time on During the first Business Day following Pre-Closing Period, the execution Company shall take all action necessary in accordance with this Agreement, the DGCL, the Company Charter and delivery of the Company Bylaws to obtain, within twenty-four (24) hours after this Agreement is executed by all the Parties, the Company shall obtain Stockholder Written Consent executed by the Requisite Company Vote Minimum Holders and sufficient for the Company Stockholder Approval in lieu of a meeting pursuant to written consents Section 228 of the DGCL, for purposes of (A) adopting this Agreement and approving the Merger and all other transactions contemplated hereby, including the conversion of the Company Preferred Stock into Company Common Stock, (B) acknowledging that such adoption and approval of the Merger and the conversion of the Company Preferred Stock into Company Common Stock given thereby is irrevocable and that such stockholder is aware it may have the right to demand appraisal for its Stockholders shares pursuant to Section 262 of the DGCL, a copy of which was attached thereto, and that such stockholder has received and read a copy of Section 262 of the DGCL, and (C) acknowledging that by its approval of the “Written Consent”). The materials submitted Merger it is not entitled to such Stockholders appraisal or dissenters’ rights with respect to its shares in connection with the Merger and thereby waives any rights to receive payment of the fair value of its capital stock under the DGCL. Under no circumstances shall the Company assert that any other approval or consent is necessary by its stockholders to approve the Merger or the conversion of the Company Preferred Stock into Company Common Stock or this Agreement. The Company shall use its commercially reasonable efforts to obtain the Company Stockholder Written Consent shall include executed by the Company Board Recommendation. Promptly following receipt of the Written ConsentMinimum Holders, sufficient for the Company Stockholder Approval and in compliance with all applicable Laws, and shall deliver a copy of use commercially reasonable efforts to cause such Company Stockholder Written Consent not to Parentbe waived or revoked. (bii) Promptly followingThe Company agrees that (A) the Company’s Board of Directors shall unanimously recommend that the holders of Company Common Stock and Company Preferred Stock take action by written consent to approve the Merger and shall use commercially reasonable efforts to solicit such approval within the timeframe set forth in Section 5.2(a)(i) above, but in no event than five Business Days after, receipt (B) the statement or information provided to the holders of the Written Consent, the Company Common Stock and Company Preferred Stock shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be include a statement to the effect that the Board of Directors of the Company recommends that the Company’s stockholders take action by written consent to approve the Merger (the recommendation of the Company’s Board of Directors that the Company’s stockholders approve the Merger being referred to as the “Company Board unanimously determined that Recommendation”); and (C) the Second Merger is advisable Company Board Recommendation shall not be withdrawn or modified in a manner adverse to Saffron, and no resolution by the Board of Directors of the Company or any committee thereof to withdraw or modify the Company Board Recommendation in a manner adverse to Saffron shall be adopted or proposed. (iii) The Company’s obligation to solicit the consent of its stockholders to sign the Company Stockholders Written Consent in accordance with Section 251(b5.2(a) shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission of any Company Superior Offer or other Company Acquisition Proposal. (iv) In connection with the solicitation of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted Company Stockholder Written Consent from its stockholders to adopt this Agreement and approve the Transactions, including the Second Merger, the Company shall furnish to Saffron, as promptly as possible, and in any event within twenty-four (ii24) provide hours after this Agreement is executed by the Stockholders Parties, a copy of such executed Company Stockholder Written Consent. (v) Promptly after the date hereof, and in no case later than ten (10) days after obtaining the Company Stockholder Approval, the Company shall deliver (in any manner permitted by applicable Laws to whom it is sent with each Company Stockholder notice of the actions taken in the Written Consent, including the Company Stockholders’ approval and adoption of this Agreement and the consummation of the Contemplated Transactions, including the Second Merger, in accordance compliance with Section Sections 228(e) and 262 of the DGCL and the bylaws of DGCL. Thereafter, the Company shall provide to its stockholders who did not execute a Company Stockholders Written Consent applicable and (iii) notify such Stockholders of appropriate notices regarding their dissent and appraisal or dissenters’ rights pursuant to under Section 262 of the DGCL. The Stockholder Notice , which notice shall include therewith a copy of Section 262 of Delaware Law and comply with all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b) shall be subject to Parent’s advance review and reasonable approvalapplicable Laws.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day The Company shall use its reasonable best efforts to obtain, immediately following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents of its Stockholders (the “Written Consent”)Stockholders. The materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board Recommendation, together with the information required by Sections 16-10a-1320 and 16-10a-1322 of the Utah Act. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to ParentHoldings. (b) Promptly following, but in no event later than five Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) 16-10a-1302 et seq. of the DGCL Utah Act and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) 16-10a-1302 et seq. of the DGCL Utah Act and the bylaws of the Company and (iii) notify such Stockholders of their dissent and appraisal rights pursuant to Section 262 16-10a-1302 et seq. of the DGCLUtah Act. The Stockholder Notice shall include therewith a copy of Section 262 16-10a-1302 et seq. of Delaware Law Utah Act and all such other information as Parent Holdings shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b5.4(b) shall be subject to Parent’s Holdings’ advance review and reasonable approval.

Stockholders Consent. (a) As promptly The Company shall use its reasonable best efforts to obtain, as practicable but not soon as possible and in any event no later than 11:59 p.m. Central Time on the first Business Day within twenty-four (24) hours following the execution and delivery of this Agreement Agreement, the Written Consent by all Partiesthe Consenting Stockholders in accordance with the Company’s governing documents and the DGCL. In addition, the Company shall use its reasonable best efforts to obtain the Written Consent by (a) no less than the holders of at least forty-five percent (45%) of the outstanding shares of Company Capital Stock by 4:00 p.m. New York City time on the fourth (4th) Business Day after the execution and delivery of this Agreement, (b) no less than the holders of at least seventy-six percent (76%) of the outstanding shares of Company Capital Stock and holders of at least a majority of each class of Company Capital Stock within twenty (20) days of the execution of this Agreement and (c) at least the Requisite Majority of Company Vote pursuant Stockholders prior to written consents of its Stockholders (the “Written Consent”)Closing. The materials submitted to such the Company Stockholders in connection with the Written Consent shall include be subject to Acquirer’s prior written approval and will include, among others, the Company Board Recommendationresolutions adopted by the board of directors of the Company, which (i) approved the Merger and the Charter Amendment upon the terms and subject to the conditions of this Agreement and (ii) have determined that the Merger and the Charter Amendment are in the best interest of the stockholders in accordance with the DGCL. Promptly following receipt of the Written ConsentConsents, the Company shall deliver a copy of such Written Consent Consents to Parent. the Acquirer. In accordance with this Agreement, the DGCL and the Company’s governing documents, the Company shall, as promptly as practicable and in any event, within the earlier of (bx) Promptly following, but in no event than five (5) Business Days after, after receipt of the Written Consent, the Company shall prepare and mail a notice Consents referenced in clause (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(bb) of the DGCL second sentence to this Section 5.10 and (y) twenty (20) days after receipt of Written Consents referenced in the best interests clause (a) of the Stockholders and unanimously approved and adopted second sentence to this Agreement and Section 5.10, deliver to the Transactions, including holders of record of shares of outstanding Company Capital Stock a copy of the Second Merger, (ii) provide the Stockholders to whom it is sent Written Consent together with notice and a description of the actions taken in recommendation of the Written Consent, including the adoption and approval and adoption of this Agreement and the Transactions, including Charter Amendment by the Second Merger, board of directors of the Company. The document containing such information (the “Information Statement”) shall (x) be prepared by the Company in accordance consultation with the Acquirer and its counsel and (y) include (i) the notice required by Section 228(e) 228 of the DGCL and the bylaws (ii) notice of the Company and (iii) notify such Stockholders of their dissent and appraisal rights pursuant to as required by Section 262 of the DGCL. The Stockholder Notice Prior to mailing the Information Statement, the Company shall include therewith give the Acquirer and its counsel a copy of Section 262 of Delaware Law reasonable opportunity to review and all comment on such other information as Parent shall reasonably request, document and shall be sufficient give due consideration to all reasonable additions, deletions or changes suggested thereto by the Acquirer and its counsel. The Information Statement shall, in form and substance to 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 the Stockholders in accordance substance, comply with this Section 5.06(b) shall be subject to Parent’s advance review and reasonable approvalall requirements under applicable Laws.

Stockholders Consent. (a) As The Company shall use its reasonable best efforts to obtain, as promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following from and after the execution and delivery of this Agreement by all PartiesAgreement, (i) the Requisite Stockholder Approval in accordance with applicable law, the Company Certificate of Incorporation and the Bylaws and (ii) the written consent of holders of at least 66% of the outstanding shares of Preferred Stock, voting as a single class on an as-converted to Class A Common Stock basis, to automatically convert such Preferred Stock into Class A Common Stock, which shall obtain be conditioned upon and effective immediately prior to the Requisite Company Vote pursuant to written consents Effective Time, in accordance with Article Fourth, Section 5 of its Stockholders (the “Written Consent”)Certificate of Incorporation. The materials submitted Requisite Stockholder Approval shall be irrevocable with respect to such all shares of Company Capital Stock that are owned beneficially or of record by the applicable consenting Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consentor as to which they have, directly or indirectly, the Company shall deliver a copy of such Written Consent right to Parentvote or direct the voting thereof. (b) Promptly followingImmediately following the execution of this Agreement by MergerCo, but Parent, as the sole stockholder of MergerCo, shall adopt and approve, in no event than accordance with applicable Law, this Agreement by written consent as permitted by its certificate of incorporation and bylaws. (c) Within five (5) Business Days after, receipt of after the Written Consentdate at which the Requisite Stockholder Approval is obtained by the Company, the Company shall prepare and mail a notice circulate to such non-consenting Stockholders an information statement (the “Stockholder NoticeInformation Statement”) ), a request for waiver of dissenter’s rights, and a consent solicitation with respect to every Stockholder that did not execute certain matters in connection with the Written Consenttransactions contemplated by this Agreement, and shall use reasonable best efforts to solicit waivers and consents thereto. The Stockholder Notice Information Statement shall (i) include the required notice under the DGCL that the holders of Company Common Stock are or may be a statement entitled to assert dissenters’ rights under such Law in connection with the Merger. The Company will promptly advise Parent if at any time prior to the effect Effective Time the Company shall obtain knowledge of any facts that the Company believes make it necessary to amend or supplement the Information Statement in order to make the statements contained therein not misleading or to comply with applicable Law. The Information Statement shall inform the holders of Company Capital Stock that the Company Board unanimously determined recommended that the Second holders of Company Capital Stock approve the Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement and the Transactions, including the Second Merger, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement and the Transactions, including the Second Mergershall, in accordance with the requirements of Section 228(e) of the DGCL and DGCL, notify any holder of Company Common Stock who did not execute the bylaws Requisite Stockholder Approval of the Company and (iii) notify such corporate action taken by those Stockholders of their dissent and appraisal rights pursuant who did execute the Requisite Stockholder Approval. Any materials to Section 262 of the DGCL. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 Stockholders by the Stockholders Company prior to the Effective Time, in accordance with this Section 5.06(b) 7.1(c), shall be subject to Parent’s advance review and reasonable approvalreview.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day The Company shall use its reasonable best efforts to obtain, within fifteen (15) days following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents of its Stockholders the Stockholders, acceptable to Parent (the “Written Consent”). The materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five (5) Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b7-111-103(2)(a) of the DGCL CBCA and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e7-107-104(5.5) of the DGCL CBCA and the bylaws of the Company and (iii) notify such Stockholders of their dissent and appraisal rights pursuant to Section 262 0-000-000 of the DGCLCBCA. The Stockholder Notice shall include therewith a copy of Section 262 0-000-000 et seq. of Delaware the CBCA of Colorado Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to start the twenty (20) day applicable statutory period during which a Stockholder must demand appraisal of such Stockholder’s 's Common Stock as contemplated by Section 262(d)(2) 0-000-000 of the DGCLCBCA. All materials submitted to the Stockholders in accordance with this Section 5.06(b5.04(b) shall be subject to Parent’s 's advance review and reasonable approval.

Stockholders Consent. (a) As promptly The Company shall use its reasonable best efforts to obtain, as soon as reasonably practicable but not later than 11:59 p.m. Central Time on the first Business Day following after the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain Requisite Stockholder Approval in accordance with applicable law, the Requisite Company Vote pursuant to written consents Certificate of its Stockholders (Incorporation and the “Written Consent”)Bylaws of the Company. The materials submitted Requisite Stockholder Approval shall be irrevocable with respect to such all shares of Company Stock that are owned beneficially or of record by the applicable consenting Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consentor as to which they have, directly or indirectly, the Company shall deliver a copy of such Written Consent right to Parentvote or direct the voting thereof. (b) Promptly followingIn the event that there are any holders of Company Stock who do not sign the Requisite Stockholder Approval, but at Parent’s request (in no event than five its sole discretion), within ten (10) Business Days after, receipt of after the Written Consentdate on which the Company obtained the Requisite Stockholder Approval, the Company shall prepare and mail a notice circulate to such non-consenting Stockholders an information statement (the “Stockholder NoticeInformation Statement”) to every Stockholder that did not execute in connection with the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) Company’s solicitation of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement and the Transactions, including the Second Merger, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption acknowledgement of this Agreement and the Transactions, including Merger from such Stockholders. The Information Statement shall include the Second required notice under the DGCL that the holders of Company Common Stock are or may be entitled to assert dissenters’ rights under such Law in connection with the Merger. The Company will promptly advise Parent if at any time prior to the Effective Time the Company shall obtain knowledge of any facts that might make it necessary to amend or supplement the Information Statement in order to make the statements contained therein not misleading or to comply with applicable Law. The Information Statement shall explain that the board of directors of the Company unanimously recommended that the holders of Company Common Stock approve the Merger and shall, in accordance with the requirements of Section 228(e) of the DGCL and DGCL, notify any holder of Company Common Stock who did not execute the bylaws Requisite Stockholder Approval of the Company and (iii) notify such corporate action taken by those Stockholders of their dissent and appraisal rights pursuant to Section 262 of who did execute the DGCL. The Requisite Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law Approval, and all such other information as Parent shall reasonably request, and shall . Any materials to be sufficient in form and substance to 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 Stockholders by the Stockholders Company in accordance with this Section 5.06(b6.11(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day Company shall use its commercially reasonable efforts to obtain, within ten (10) days following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents Consents of its the Stockholders in form satisfactory to Purchaser (the “Written Consent”). The materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to ParentPurchaser. (b) Promptly following, but in no event more than five three (3) Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL Utah Act and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL Utah Act and the bylaws of the Company and (iii) notify such Stockholders of their dissent and appraisal dissenters’ rights pursuant to Section 262 of the DGCLUtah Act. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to start the twenty (20) day period during which a Stockholder must demand appraisal of dissenters’ rights relating to such Stockholder’s Company Common Stock as contemplated by Section 262(d)(2) of the DGCLUtah Act. All materials submitted to the Stockholders in accordance with this Section 5.06(b5.4(b) shall be subject to ParentPurchaser’s advance review and reasonable approval.

Stockholders Consent. (ai) As promptly as practicable but not later than 11:59 p.m. Central Time on During the first Business Day following the execution and delivery of this Agreement by all PartiesPre-Closing Period, the Company shall take all action necessary in accordance with this Agreement, the DGCL, the Company Charter and the Company Bylaws to obtain and shall obtain, as promptly as practicable following the Requisite execution hereof (but in any event within 24 hours following the execution hereof), the Company Vote Stockholder Written Consent via written consent sufficient for the Required Company Stockholder Approvals in lieu of a meeting pursuant to written consents Section 228 of the DGCL, for purposes of (i) adopting this Agreement and approving the Merger, (ii) acknowledging that such adoption and approval of the Merger and the other Contemplated Transactions given thereby is irrevocable and that such stockholder is aware it may have the right to demand appraisal for its Stockholders shares pursuant to Section 262 of the DGCL, a copy of which was attached thereto, and that such stockholder has received and read a copy of Section 262 of the DGCL, and (iii) acknowledging that by its approval of the “Written Consent”). The materials submitted Merger it is not entitled to such Stockholders appraisal or dissenters’ rights with respect to its shares in connection with the Written Consent Merger and thereby waives any rights to receive payment of the fair value of its capital stock under the DGCL. Under no circumstances shall include the Company Board Recommendation. Promptly following receipt assert that any other approval or consent is necessary by its stockholders to approve this Merger, the conversion of the Company Series A and Series B Preferred Stock into Company Common Stock, the other Contemplated Transactions or this Agreement. The Company shall use best efforts to ensure that all Company Stockholder Written Consents are obtained in compliance with all applicable Laws, and shall not waive or revoke any Company Stockholder Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (bii) Promptly followingThe Company agrees that, but in no event than five Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be the Company’s Board of Directors shall recommend that the holders of Company Common Stock and Company Preferred Stock take action by written consent to approve the Merger and shall use commercially reasonable efforts to solicit such approval within the timeframe set forth in Section 5.2(a)(i) above, and (ii) the statement or information provided to the holders of Company Common Stock and Company Preferred Stock shall include a statement to the effect that the Board of Directors of the Company recommends that the Company’s stockholders take action by written consent to approve the Merger (the recommendation of the Company’s Board of Directors that the Company’s stockholders approve the Merger being referred to as the “Company Board unanimously determined that Recommendation”). (iii) In connection with the Second Merger is advisable in accordance with Section 251(b) solicitation of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted Company Stockholder Written Consent from its stockholders to adopt this Agreement and approve the Transactions, including the Second Merger, the Company shall furnish to Parent, as soon as practicable upon the delivery and effectiveness of the Company Stockholder Written Consent, a copy of such executed Company Stockholder Written Consent. (iiiv) provide Promptly after the Stockholders date hereof, the Company shall deliver (in any manner permitted by applicable Laws) to whom it is sent with each Company Stockholder the notice of the actions taken in the Written Consent, including the Company Stockholders’ approval and adoption of this Agreement and the consummation of the Contemplated Transactions, including the Second Merger, in accordance compliance with Section Sections 228(e) and 262 of the DGCL and the bylaws of DGCL. Thereafter, the Company shall provide to its stockholders who did not execute a Company Stockholders Written Consent applicable and (iii) notify such Stockholders of appropriate notices regarding their dissent and appraisal or dissenters’ rights pursuant to under Section 262 of the DGCL. The Stockholder Notice , which notice shall include therewith a copy of Section 262 of Delaware Law and comply with all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b) shall be subject to Parent’s advance review and reasonable approvalapplicable Laws.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on The Company, acting through the first Business Day Company Board, immediately following the execution and delivery of this Agreement by all Partiesthe Company, shall request, in accordance with applicable law, that following the execution of this Agreement the Company’s stockholders approve this Agreement by written consent, as permitted by the Company shall obtain the Requisite Company Vote pursuant to written consents of its Stockholders Organizational Documents (the “Written Consent”) and take all actions reasonably necessary to approve the performance of the Company’s obligations hereunder, including, without limitation, the Merger and the Transactions. The Company shall use its best efforts to obtain Written Consents satisfactory to achieve the Required Vote (together with executed Letter Agreements (as defined below) from the applicable Letter Agreement Shareholders) no later than 11:59 p.m. MST as of the date hereof and, furthermore, will use its reasonable best efforts to obtain Written Consents from all other holders of Company Capital Stock prior to the Closing and to satisfy the condition to Closing in Section 6.1(l). The materials submitted to such Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written ConsentIn addition, the Company shall deliver not accept any such Written Consents prior to obtaining from each of the Letter Agreement Shareholders, and delivering to Buyer, a letter agreement in the form set forth as Exhibit C hereto (the “Letter Agreement”), which representation letter sets forth such stockholders status as an “accredited investor” within the meaning of the Securities Act. In addition, the Company shall send, pursuant to Sections 228 and 262(d) of the DGCL, a written notice to all the Company Stockholders who did not execute such Written Consent informing them that this Agreement and the Merger were adopted and approved by the Company Stockholders and that appraisal rights are available for their shares of Company Capital Stock pursuant to Section 262 of the DGCL (which notice shall include a copy of such Section 262), and shall promptly inform Buyer of the date on which such notice was sent. The Company, Buyer and Merger Co. shall assist and cooperate in the preparation of such written notice and accompanying materials, which shall include a description of the Transactions, a summary of the terms relating to the indemnification obligations of the shareholders of the Company, the escrow arrangements and the authority of the Indemnification Representative, and a statement that the adoption of this Agreement by the Company Stockholders constituted approval of such terms. Buyer shall have the right to review and reasonably approve such disclosure information and the Company shall consider in good faith all comments made by Buyer. The Company’s obligation to obtain Written Consent Consents in accordance with this Section 3.9(a) shall not be limited to Parentor otherwise affected by the commencement, disclosure, announcement or submission to Company of any Acquisition Proposal. (b) Promptly following, but in no event than five Business Days after, receipt Subject to Section 3.9(c): (i) the Board of the Written Consent, Directors of the Company shall prepare unanimously recommend that the Company’s stockholders vote in favor of and mail a notice (adopt and approve this Agreement and the “Stockholder Notice”) to every Stockholder that did not execute Merger in connection with obtaining the Written Consent. The Stockholder Notice Consents; (ii) any Written Notices sent to the Company Stockholders in accordance with this Section 3.9 shall (i) be include a statement to the effect that the Board of Directors of the Company Board has unanimously determined recommended that the Second Merger is advisable Company’s Stockholders vote in accordance with Section 251(b) favor of the DGCL and in the best interests of the Stockholders adopt and unanimously approved and adopted approve this Agreement and the TransactionsMerger; and (iii) neither the Board of Directors of the Company nor any committee thereof shall withdraw, including amend or modify, or propose or resolve to withdraw, amend or modify in a manner adverse to Buyer, the Second unanimous recommendation of the Board of Directors of the Company that the Company Stockholders vote in favor of and adopt and approve this Agreement and the Merger. For purposes of this Agreement, said recommendation of the Board of Directors shall be deemed to have been modified in a manner adverse to Buyer if said recommendation shall no longer be unanimous. (c) Nothing in this Agreement shall prevent the Board of Directors of the Company, prior to the time the Required Vote is obtained, from withholding, withdrawing, amending or modifying its unanimous recommendation in favor of the Merger if (i) a Superior Offer (as defined below) is made to the Company and is not withdrawn, (ii) provide neither the Stockholders to whom it is sent with notice Company nor any of its representatives shall have violated any of the actions taken restrictions set forth in the Written ConsentSection 3.4, including the approval and adoption of this Agreement and the Transactions, including the Second Merger, in accordance with Section 228(e) of the DGCL and the bylaws of the Company and (iii) notify the Board of Directors of the Company concludes in good faith, after consultation with its outside counsel, that, in light of such Stockholders Superior Offer, the failure to withhold, withdraw, amend or modify such recommendation would be inconsistent with the Board of their dissent Directors of the Company’s fiduciary obligations to the Company’s stockholders under applicable law; provided, however, that prior to taking any such action the Company shall have given Buyer at least 72 hours notice thereof and appraisal rights the opportunity to meet with the Company and its counsel. Nothing contained in this Section 3.9(c) shall limit the Company’s obligation to obtain Written Consents (regardless of whether the unanimous recommendation of the Board of Directors of the Company shall have been withdrawn, amended or modified). For purposes of this Agreement, “Superior Offer” shall mean an unsolicited, bona fide written offer made by a third party to consummate any of the following transactions: (i) a merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company pursuant to Section 262 which the stockholders of the DGCL. The Stockholder Notice shall include therewith Company immediately preceding such transaction hold less than a copy majority of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient the equity interest in form and substance to start the twenty (20) day period during which a Stockholder must demand appraisal surviving or resulting entity of such Stockholdertransaction; (ii) a sale or other disposition by the Company of assets (excluding inventory and used equipment sold in the ordinary course of business) representing in excess of a majority of the fair market value of the Company’s Common Stock as business immediately prior to such sale, or (iii) the acquisition by any person or group (including by way of an exchange offer or issuance by the Company), directly or indirectly, of beneficial ownership or a right to acquire beneficial ownership of shares representing in excess of a majority of the voting power of the then outstanding shares of capital stock of the Company, in each case on terms that the Board of Directors of the Company determines, in its reasonable judgment (based on written advice of a financial advisor of nationally recognized reputation) to be more favorable to the Company Stockholders from a financial point of view than the terms of the Merger; provided, however, that any such offer shall not be deemed to be a “Superior Offer” if any financing required to consummate the transaction contemplated by Section 262(d)(2) such offer is not committed and is not likely in the judgment of the DGCLCompany’s Board of Directors to be obtained by such third party on a timely basis. All materials submitted to the Stockholders in accordance with this This Section 5.06(b3.9(c) shall terminate and be subject to Parent’s advance review and reasonable approvalof no further force or effect following the receipt of the Required Vote.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following the execution and delivery of this Agreement by all Parties, the The Company shall use its reasonable best efforts to obtain the Requisite Company Vote pursuant to written consents of its the Stockholders (the “Written Consent”). The materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five three (3) Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the 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 include therewith a copy of Section 262 of Delaware Law DGCL and all such other information as required by Law or as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b5.01(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day The Company shall use commercially reasonable efforts to obtain, within seventeen (17) days following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents of its Stockholders the Stockholders, and, if applicable, the Preferred Stock Director, in the form attached hereto as Exhibit D (the “Written Consent”). The disclosure materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board RecommendationRecommendation with respect to the Merger and the Special Committee Recommendation with respect to the Taxable Distribution Transaction and shall also describe the material terms of the Merger and the Taxable Distribution Transaction (the “Information Statement”). Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly Assuming that the Company obtains the Requisite Company Vote, promptly following, but in no event later than five Business Days after, receipt of eleven (11) days after submitting the Written ConsentConsents to the Stockholders for approval, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be include a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement and the Transactions, including the Second Merger, (ii) include a statement to the effect that the Special Committee unanimously determined that the Taxable Distribution Transaction is advisable and in the best interest of the Stockholders (other than Riverwood Capital and each other Eligible Stockholder who elects to participate in the Taxable Distribution Transaction) and unanimously approved and adopted the Taxable Distribution Transaction, (iii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger, the Taxable Distribution Transaction and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the bylaws of the Company Company, and (iiiiv) notify such the Stockholders of their dissent and appraisal rights pursuant to Section 262 of the DGCLDGCL with respect to the Merger. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b5.04(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (ai) As promptly as practicable but not Promptly after the Registration Statement has been declared effective under the Securities Act, and in any event no later than 11:59 p.m. Central Time on the first five (5) Business Day following the execution and delivery of this Agreement by all PartiesDays thereafter, the Company shall obtain the Requisite Company Vote Stockholder Written Consent executed by the Company Minimum Holders and sufficient for the Company Stockholder Approval in lieu of a meeting pursuant to written consents Section 228 of the DGCL, for purposes of (i) adopting this Agreement and approving the Merger and all other transactions contemplated hereby, including the conversion of the Company Preferred Stock into Company Common Stock as of immediately prior to the Effective Time, (ii) acknowledging that such adoption and approval of the Merger and the conversion of the Company Preferred Stock into Company Common Stock given thereby as of immediately prior to the Effective Time is irrevocable and that such stockholder is aware it may have the right to demand appraisal for its Stockholders shares pursuant to Section 262 of the DGCL, a copy of which was attached thereto, and that such stockholder has received and read a copy of Section 262 of the DGCL, and (iii) acknowledging that by its approval of the “Written Consent”). The materials submitted Merger it is not entitled to such Stockholders appraisal or dissenters’ rights with respect to its shares in connection with the Written Consent Merger and thereby waives any rights to receive payment of the fair value of its capital stock under the DGCL. Under no circumstances shall include the Company assert that any other approval or consent is necessary by its stockholders to approve the Merger or the conversion of the Company Preferred Stock into Company Common Stock or this Agreement. (ii) Except in the case of a Company Change in Recommendation made in compliance with Section 4.5(a)(iv), the Company agrees that (i) the Company Board of Directors shall recommend that the Company’s stockholders vote (or take action by written consent) to adopt and approve this Agreement and the Contemplated Transactions and shall use commercially reasonable efforts to solicit such approval within the time set forth in Section 5.2(a) (the recommendation of the Company’s Board of Directors that the Company’s stockholders approve the Merger being referred to as the “Company Board Recommendation”); and (ii) the Company Board Recommendation shall not be withdrawn or modified (and the Company’s Board of Directors shall not publicly propose to withdraw or modify the Company Board Recommendation. Promptly ) in a manner adverse to Orion, and no resolution by the Company’s Board of Directors or any committee thereof to withdraw or modify the Company Board Recommendation in a manner adverse to Orion or to adopt, approve or recommend (or publicly propose to adopt, approve or recommend) any Company Acquisition Proposal shall be adopted or proposed. (iii) Unless the Company Board of Directors has effected a Company Change of Recommendation made in compliance with Section 4.5 and terminated this Agreement to enter into a definitive agreement with respect to a Company Superior Offer pursuant to Section 9.1(l), the Company’s obligation to solicit the consent of its stockholders to sign the Company Stockholders Written Consent in accordance with Section 5.2(a) shall not be limited or otherwise affected by the commencement, disclosure, announcement or submission of any Company Acquisition Proposal or by any Company Change in Recommendation. (iv) In connection with the solicitation of the Company Stockholder Written Consent from its stockholders to adopt this Agreement and approve the Merger, the Company shall furnish to Orion, as promptly as possible, and in any event within five (5) Business Days after receiving notice from Orion that the Registration Statement shall have been declared effective under the Securities Act, a copy of such executed Company Stockholder Written Consent. (v) Reasonably promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five Business Days after, receipt of the Stockholder Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder stockholder of the Company that did not execute the Company Stockholder Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Board of Directors of the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders stockholders of the Company and unanimously approved and adopted this Agreement Agreement, the Merger and the other Contemplated Transactions, including the Second Merger, (ii) provide the Stockholders stockholders of the Company to whom it is sent with notice of the actions taken in the Company Stockholder Written Consent, including the adoption and approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other Contemplated Transactions in accordance with Section 228(e) of the DGCL and the bylaws of the Company Charter and Company Bylaws and (iii) notify such Stockholders include a description of their dissent and the appraisal rights pursuant to Section 262 of the Company’s stockholders available under the DGCL. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all , along with such other information as Parent shall reasonably request, is required thereunder and shall be sufficient in form and substance pursuant to 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 DGCLapplicable Law. All materials (including any amendments thereto) submitted to the Stockholders stockholders of the Company in accordance with this Section 5.06(b5.2(a)(v) shall be subject to ParentOrion’s advance review and reasonable approval.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day The Company shall use its reasonable best efforts to obtain, immediately following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents of its the Stockholders (the “Written Consent”). The materials submitted to such Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five ten Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the 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 include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b5.05(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (a) The Company shall take all action necessary in accordance with this Agreement, the DGCL and the Company’s Organizational Documents, as applicable, to secure by 5:00 p.m. Eastern time on the first day following the date hereof (i) the approval of this Agreement by written consent of the Stockholders executed by the requisite number of Stockholders in accordance with the Company’s Organizational Documents and the DGCL, including (A) the holders of shares of Company Capital Stock (voting as a single class) representing a majority of votes that may be cast by the holders of all outstanding shares of Company Capital Stock and (B) the holders of shares of Series A Preferred Shares and the holders of shares of Series B Preferred Shares (voting as a single class) representing a majority of votes that may be cast by the holders of all outstanding shares of Series A Preferred Shares and Series B Preferred Shares (the “Company Requisite Vote”) and (ii) execution of the Consent Agreement by Stockholders holding no less than 75% of the Company Capital Stock. Immediately following receipt thereof, but in no event later than 5:00 p.m. Eastern time on the first day following the date hereof, the Company shall use its best efforts to deliver to Buyer (A) a copy of the Company Written Consent, duly executed by the requisite Stockholders and (B) copies of the Consent Agreement executed by Stockholders holding at least 75% of the Company Capital Stock. As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following the execution receipt of the Company Written Consent, the Company will send a communication to those Stockholders, if any, who did not execute the Company Written Consent, which communication shall be subject to Buyer’s prior review and delivery approval, and the Company shall use its best efforts to obtain an executed Letter of Transmittal from each Equityholder. (b) The Company Board shall unanimously recommend that the Stockholders vote in favor of the approval of the Merger and adoption of this Agreement by all Parties, pursuant to the Company shall obtain the Requisite Company Vote pursuant to written consents of its Stockholders (the “Written Consent”). The materials submitted Any information statement or other disclosure document distributed to such the Stockholders in connection with the Written Consent transactions contemplated by this Agreement shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board has unanimously determined recommended that the Second Merger is advisable Stockholders vote in accordance with Section 251(b) favor of the DGCL and in the best interests approval of the Stockholders and unanimously approved and adopted this Agreement and the Transactions, including the Second Merger, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval Merger and adoption of this Agreement and the Transactions, including the Second Merger, in accordance with Section 228(e) of the DGCL and the bylaws of pursuant to the Company and Written Consent. (iiic) notify such Stockholders Immediately following the execution of their dissent and appraisal rights pursuant to Section 262 this Agreement by Merger Sub, Buyer, as sole stockholder of the DGCL. The Stockholder Notice Merger Sub, shall include therewith a copy of Section 262 of Delaware Law and take all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders action necessary in accordance with this Section 5.06(bAgreement, the DGCL and their respective Organizational Documents to adopt and approve this Agreement by written consent (the “Buyer Written Consent”). (d) Each party shall provide to the other any information for inclusion in preparation for the Company Written Consent or Buyer Written Consent, as applicable, that may be subject to Parent’s advance review required under applicable Law and reasonable approvalthat is reasonably requested by the other party.

Stockholders Consent. (a) As The Company shall use its reasonable best efforts to obtain, as promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following from and after the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain Requisite Stockholder Approval in accordance with applicable law, the Requisite Company Vote pursuant to written consents Certificate of its Stockholders (Incorporation and the “Written Consent”)Bylaws. The materials submitted Requisite Stockholder Approval shall be irrevocable with respect to such all shares of Company Capital Stock that are owned beneficially or of record by the applicable consenting Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consentor as to which they have, directly or indirectly, the Company shall deliver a copy of such Written Consent right to Parentvote or direct the voting thereof. (b) Promptly followingImmediately following the execution of this Agreement by MergerCo, but Parent, as sole stockholder of MergerCo, shall adopt and approve, in no event than five Business Days afteraccordance with applicable law, receipt this Agreement by written consent as permitted by its certificate of incorporation and bylaws. (c) Within ten (10) days after the Written Consentdate at which Requisite Stockholder Approval is obtained by the Company, the Company shall prepare and mail a notice circulate to such non-consenting Stockholders an information statement (the “Stockholder NoticeInformation Statement”) ), a request for waiver of dissenter’s rights, and a consent solicitation with respect to every Stockholder that did not execute certain matters in connection with the Written Consenttransactions contemplated by this Agreement, and shall use reasonable best efforts to solicit waivers and consents thereto. The Stockholder Notice Information Statement shall (i) include the required notice under the DGCL that the holders of Common Stock are or may be a statement entitled to assert dissenters’ rights under such Law in connection with the Merger. The Company will promptly advise Parent if at any time prior to the effect Effective Time the Company shall obtain knowledge of any facts that might make it necessary to amend or supplement the Information Statement in order to make the statements contained therein not misleading or to comply with applicable Law. The Information Statement shall inform the Company’s stockholders that the Board of Directors of the Company Board unanimously determined recommended that the Second holders of Common Stock approve the Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement and the Transactions, including the Second Merger, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement and the Transactions, including the Second Mergershall, in accordance with the requirements of Section 228(e) of the DGCL and DGCL, notify any holder of Common Stock who did not execute the bylaws Requisite Stockholder Approval of the Company and (iii) notify such corporate action taken by those Stockholders of their dissent and appraisal rights pursuant who did execute the Requisite Stockholder Approval. Any materials to Section 262 of the DGCL. The Stockholder Notice shall include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 Stockholders by the Stockholders Company in accordance with this Section 5.06(b7.1(c) shall be subject to Parent’s advance review and reasonable approvalreview.

Stockholders Consent. (a) As Within twenty-four hours (with originals to follow promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day following the thereafter) after execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain deliver to Buyer the Requisite Company Vote Stockholder Consent pursuant to written consents of its the necessary Stockholders listed in the Disclosure Schedule, in the form attached hereto as Exhibit C (the “Written Consent”). The materials submitted to such Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event more than five Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the 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 include therewith a copy of Section 262 of Delaware Law the DGCL and all such other information as Parent Buyer shall reasonably request, and shall be sufficient in form and substance to start the twenty (20) 20 day period during which a Stockholder must demand appraisal of such Stockholder’s Company Common Stock as contemplated by Section 262(d)(2) of the DGCL. All materials submitted to the Stockholders in accordance with this Section 5.06(b5.7(b) shall be subject to ParentBuyer’s advance review and reasonable approval. (c) The Company shall (a) no later than five Business Days prior to the Closing Date, solicit from each “disqualified individual” with respect to the Company (within the meaning of Section 280G(c) of the Code) who has received or will receive any payment or benefits that would constitute a “parachute payment” (within the meaning of Section 280G(b)(2)(A) of the Code) a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G Benefits”) so that all remaining payments and/or benefits, if any, shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G of the Code) and (b) no later than three Business Days prior to the Closing Date, with respect to each individual who agrees to the waiver described in clause (a), submit to a stockholder vote (along with adequate disclosure satisfying the requirements of Section 280G(b)(5)(B)(ii) of the Code and any regulations promulgated thereunder) the right of any such “disqualified individual” to receive or retain the Waived 280G Benefits. Prior to soliciting such waivers and approval materials, the Company shall provide drafts of such waivers and approval materials to Buyer for its reasonable review and approval (which approval will not be unreasonably withheld, conditioned or delayed) no later than two Business Days prior to soliciting such waivers and soliciting such approval. If any of the Waived 280G Benefits fail to be approved in accordance with the requirements of Section 280G(b)(5)(B) as contemplated above, such Waived 280G Benefits shall not be made, provided or retained, as the case may be. Prior to the Closing, the Company shall deliver to Buyer evidence reasonably acceptable to Buyer that a vote of the stockholders of the Company was solicited in accordance with the foregoing provisions of this Section 5.7(c) and that either (i) the requisite number of votes of the stockholders of the Company was obtained with respect to the Waived 280G Benefits (the “280G Approval”) or (ii) the 280G Approval was not obtained, and, as a consequence, the Waived 280G Benefits shall not be made, provided or retained, as the case may be.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on Taking into account the first Business Day covenants of the Majority Shareholders set forth in Section 10.15, the Company shall use its reasonable best efforts to obtain, within five (5) calendar days following the execution and delivery of this Agreement by all PartiesAgreement, the necessary consent of holders of Company Series A Convertible Preferred Stock to convert all such stock into Company Common Stock. The Company shall obtain also use its reasonable best efforts to obtain, within five (5) days following the execution and delivery of this Agreement, the Requisite Company Vote pursuant to written consents of its the Stockholders listed on Section 5.04 of the Disclosure Schedules in the form attached hereto as Exhibit E (the “Written Consent”). The materials submitted to such Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five Business Days after, receipt The Letter of the Written Consent, the Company Transmittal shall prepare and mail contain a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be include a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the 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 include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b5.04(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first The Company shall use its reasonable best efforts to obtain, within two (2) Business Day Days following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents of its the Stockholders in a form which is acceptable to Parent (the “Written Consent”). The materials submitted to such the Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event more than five (5) Business Days after, receipt of the Written Consent, the Company shall prepare and mail a notice (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL CCC and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL CCC and the bylaws of the Company and (iii) notify such Stockholders of their dissent and appraisal rights pursuant to Section 262 Chapter 13 of the DGCLCCC. The Stockholder Notice shall include therewith a copy of Section 262 Chapter 13 of Delaware Law the CCC and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to start the twenty (20) day period during which a Stockholder must demand appraisal of such Stockholder’s Company Common Stock as contemplated by Section 262(d)(2) of the DGCLCCC. All materials submitted to the Stockholders in accordance with this Section 5.06(b6.06(b) shall be subject to Parent’s advance review and reasonable approval.

Stockholders Consent. (a) As promptly as practicable but not later than 11:59 p.m. Central Time on the first Business Day The Company shall use its reasonable best efforts to obtain, immediately following the execution and delivery of this Agreement by all PartiesAgreement, the Company shall obtain the Requisite Company Vote pursuant to written consents of its the Stockholders (the “Written Consent”). The materials submitted to such Stockholders in connection with the Written Consent shall include the Company Board Recommendation. Promptly following receipt of the Written Consent, the Company shall deliver a copy of such Written Consent to Parent. (b) Promptly following, but in no event than five ten (10) Business Days after, receipt of the Written Consent, the Company shall prepare and file with the SEC a preliminary notice on Schedule 14C and shall, within ten (10) Business Days after confirmation that the SEC has completed its review of such preliminary notice, mail a definitive notice on Schedule 14C (the “Stockholder Notice”) to every Stockholder that did not execute the Written Consent. The Stockholder Notice shall (i) be a statement to the effect that the Company Board unanimously determined that the Second Merger is advisable in accordance with Section 251(b) of the DGCL and in the best interests of the Stockholders and unanimously approved and adopted this Agreement Agreement, the Merger and the Transactions, including the Second Mergerother transactions contemplated hereby, (ii) provide the Stockholders to whom it is sent with notice of the actions taken in the Written Consent, including the approval and adoption of this Agreement Agreement, the Merger and the Transactions, including the Second Merger, other transactions contemplated hereby in accordance with Section 228(e) of the DGCL and the 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 include therewith a copy of Section 262 of Delaware Law and all such other information as Parent shall reasonably request, and shall be sufficient in form and substance to 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 the Stockholders in accordance with this Section 5.06(b5.05(b) shall be subject to Parent’s advance review and reasonable approval.