Common use of Stockholders’ Meeting; Proxy Statement Clause in Contracts

Stockholders’ Meeting; Proxy Statement. (a) The Company shall, in accordance with applicable law and the Restated Certificate of Incorporation and the By-laws of the Company duly call, give notice of, convene and hold a meeting of its stockholders (the "Special Meeting") as promptly as reasonably practicable after the date hereof for the purpose of considering and taking action upon this Agreement, the Charter Amendment and such other matters as may be appropriate at the Special Meeting. (b) As soon as reasonably practicable following the date of this Agreement, the Company shall prepare and file with the SEC, and Merger Company and Finance Company shall cooperate with the Company in such preparation and filing, an S-4 and a preliminary proxy statement and the parties shall file, if necessary, any other statement or schedule relating to this Agreement and the transactions contemplated hereby and use their respective commercially reasonable efforts to furnish the information required to be included by the SEC in the S-4, the Proxy Statement (as hereinafter defined) and any such statement or schedule. After consultation with Merger Company, the Company shall respond promptly to any comments made by the SEC with respect to the S-4 or the preliminary proxy statement and cause a definitive proxy statement (the "Proxy Statement") to be mailed to its stockholders and the parties shall respond promptly to any comments with respect to any other statement or schedule filed by them. No filing of, or amendment or supplement to, the S-4, or the Proxy Statement or any other statement or schedule will be made by the Company without providing Merger Company a reasonable opportunity to review and comment thereon, and no filing of any statement or schedule will be made by Merger Company or Finance Company without providing the Company a reasonable opportunity to review and comment thereon. If at any time after the date the S-4 is declared effective by the SEC or otherwise becomes effective and prior to the Special Meeting any information relating to the Company, Merger Company or Finance Company, or any of their respective affiliates, officers or directors, should be discovered by the Company, Merger Company or Finance Company which is required to be set forth in an amendment or supplement to the S-4, the Proxy Statement or any other statement or schedule, so that none of the S-4, the Proxy Statement and any such statement or schedule will include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not

Stockholders’ Meeting; Proxy Statement. (a) Promptly following the Agreement Date (and, in any event, within fifteen (15) Business Days following the Agreement Date (unless the failure to file in such time period is caused by the failure of Parent to provide, or cause to be provided, such information regarding itself, its Subsidiaries (including Merger Subsidiary) or its Affiliates, as required by Law to be included in the Proxy Statement and as requested by the Company, in which case, the Company will file the Proxy Statement promptly but, in any event, within two (2) Business Days following the receipt of such required and/or requested information), the Company shall prepare the Proxy Statement and file it with the SEC. Prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company agrees to provide Merger Subsidiary, Parent and their counsel a reasonable opportunity to review and comment on such document prior to the filing, mailing or other submission thereof with the SEC, and the Company shall give reasonable and good faith consideration to any comments made by Merger Subsidiary, Parent and their counsel that are provided in a timely manner. The Company (and Parent, as applicable) shall use commercially reasonable efforts to respond as promptly as reasonably practicable to and resolve all comments received from the SEC or its staff concerning the Proxy Statement and shall cause the Proxy Statement to be mailed to its stockholders as promptly as reasonably practicable after establishing the Record Date. The Company shall (i) notify Parent promptly upon (but, in any event, within twenty-four (24) hours of) the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement, (ii) provide Merger Subsidiary, Parent and their counsel an opportunity to participate with the Company or its counsel in any material discussions or meetings with any Governmental Authority or its staff regarding such comments and/or requests if and to the extent permitted by applicable Law and such Governmental Authority or its staff and (iii) supply Parent with copies of all material correspondence between the Company or any of its Representatives, on the one hand, and the SEC, or its staff, on the other hand, with respect to the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and Merger Subsidiary shall use commercially reasonable efforts to cooperate with the Company in connection with the preparation and filing of the Proxy Statement, including furnishing, upon request, as promptly as reasonably practicable to the Company in writing any and all information relating to it as may be required to be set forth in the Proxy Statement under applicable Law. The Proxy Statement will comply as to its form in all material respects with the requirements of the Exchange Act applicable thereto as of the date of such filing with the SEC. (b) If at any time prior to the Stockholders Meeting, any event or circumstance relating to the Company, Parent, or any of their respective Affiliates should be discovered by the Company or Parent that, pursuant to the Securities Act, Exchange Act or other applicable Law, should be set forth in an amendment or a supplement to the Proxy Statement, such party shall promptly inform the other parties hereto. If at any time before the Stockholders Meeting, any such event or circumstance is discovered by the Company or Parent, then, in each case, the Company shall, reasonably promptly after becoming aware thereof, amend or supplement, as applicable and in accordance with Section 5.4(a), the Proxy Statement to include disclosure of such fact or event. Each of Parent and the Company agree to use reasonable best efforts to correct any information provided by or on behalf of it for use in the Proxy Statement that shall have become false or misleading or that omits to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. (c) The Company shall use commercially reasonably efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable after the Proxy Statement is first filed with the SEC. As promptly as practicable after the SEC confirms that it has no further comments on the Proxy Statement, the Company shall use commercially reasonable efforts to establish, in accordance with applicable law Law, the applicable Company Charter Documents, and the Restated Certificate of Incorporation and the By-laws of the Company Nasdaq rules, a record date for, duly call, give notice of, convene and hold a meeting of its stockholders (including any adjournment or postponement thereof, the "Special “Stockholders Meeting"”) as promptly as reasonably practicable after the date hereof for the purpose of considering and taking action upon this Agreement, obtaining the Charter Amendment and such other matters as may be appropriate at Company Stockholder Approval. Notwithstanding anything to the Special Meeting. (b) As soon as reasonably practicable following the date of contrary in this Agreement, the Company may only postpone or adjourn the Stockholders Meeting (i) for the absence of a quorum, (ii) after reasonable consultation with Parent, to allow reasonable additional time for any supplemental or amended disclosure that the Company has determined in good faith (after consultation with outside legal counsel) is reasonably necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting or (iii) after reasonable consultation with Parent, to allow additional solicitation of votes in order to obtain the Company Stockholder Approval. Subject to Section 5.3, the Company Board shall prepare and file with the SECmake, and Merger Company and Finance Company shall cooperate with include in the Proxy Statement, the Company in such preparation Board Recommendation and filingshall use its reasonable best efforts to obtain the Company Stockholder Approval and to take all other action reasonably necessary or advisable to secure the vote or consent of the stockholders of the Company required by the applicable Company Charter Documents, an S-4 and a preliminary proxy statement the Nasdaq rules and the parties DGCL. Notwithstanding anything to the contrary in this Agreement, regardless of whether the Company Board shall file, if necessary, any other statement or schedule relating to this Agreement and the transactions contemplated hereby and use their respective commercially reasonable efforts to furnish the information required to be included by the SEC in the S-4, the Proxy Statement (as hereinafter defined) and any such statement or schedule. After consultation with Merger Companyhave made a Change of Recommendation, the Company shall respond promptly to any comments made by the SEC with respect to the S-4 or the preliminary proxy statement and cause submit this Agreement for a definitive proxy statement (the "Proxy Statement") to be mailed vote to its stockholders at the Stockholders Meeting unless this Agreement has been validly terminated in accordance with its terms. (d) The Company shall, in consultation with Parent, establish a record date (that is as early as reasonably practicable and in compliance with applicable Law) for purposes of determining the parties shall respond promptly holders of Company Common Stock entitled to any comments with respect to any other statement or schedule filed by themnotice of and vote at the Stockholders Meeting (the “Record Date”). No filing of, or amendment or supplement toOnce the Company has established the Record Date, the S-4Company shall not change such Record Date or establish a different record date for the Stockholders Meeting without the prior written consent of Parent, unless required to do so by applicable Law. In the event that the date of the Stockholders Meeting as originally called is adjourned, postponed or the Proxy Statement or any other statement or schedule will be made by otherwise delayed in accordance with Section 5.4(b), the Company without providing Merger Company a reasonable opportunity agrees that, unless Parent shall have otherwise approved in writing (such approval not to review and comment thereonbe unreasonably withheld, and no filing of any statement conditioned or schedule will be made by Merger Company or Finance Company without providing delayed), the Company shall implement such adjournment, postponement or other delay in such a reasonable opportunity to review and comment thereon. If at any time after way that the date Company does not establish a new Record Date for the S-4 is declared effective Stockholders Meeting, as so adjourned, postponed or delayed, except as may be required by the SEC or otherwise becomes effective and prior to the Special Meeting any information relating to the Company, Merger Company or Finance Company, or any of their respective affiliates, officers or directors, should be discovered by the Company, Merger Company or Finance Company which is required to be set forth in an amendment or supplement to the S-4, the Proxy Statement or any other statement or schedule, so that none of the S-4, the Proxy Statement and any such statement or schedule will include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, notapplicable Law.

Stockholders’ Meeting; Proxy Statement. (a) The Company shall, in accordance with applicable law and the Restated Certificate of Incorporation and the By-laws of the Company duly call, give notice of, convene and hold a meeting of its stockholders (the "Special Meeting") as promptly as reasonably practicable after the date hereof for the purpose of considering and taking action upon this Agreement, the Charter Amendment and such other matters as may be appropriate at the Special Meeting. (b) As soon as reasonably practicable following the date of this Agreement, the Company shall prepare and file with the SEC, and Merger Company and Finance Company shall cooperate with the Company in such preparation and filing, an S-4 and a preliminary proxy statement and the parties shall file, if necessary, any other statement or schedule relating to this Agreement and the transactions contemplated hereby and use their respective commercially reasonable efforts to furnish the information required to be included by the SEC in the S-4, the Proxy Statement (as hereinafter defined) and any such statement or schedule. After consultation with Merger Company, the Company shall respond promptly to any comments made by the SEC with respect to the S-4 or the preliminary proxy statement and cause a definitive proxy statement (the "Proxy Statement") to be mailed to its stockholders and the parties shall respond promptly to any comments with respect to any other statement or schedule filed by them. No filing of, or amendment or supplement to, the S-4, or the Proxy Statement or any other statement or schedule will be made by the Company without providing Merger Company a reasonable opportunity to review and comment thereon, and no filing of any statement or schedule will be made by Merger Company or Finance Company without providing the Company a reasonable opportunity to review and comment thereon. If at any time after the date the S-4 is declared effective by the SEC or otherwise becomes effective and prior to the Special Meeting any information relating to the Company, Merger Company or Finance Company, or any of their respective affiliates, officers or directors, should be discovered by the Company, Merger Company or Finance Company which is required to be set forth in an amendment or supplement to the S-4, the Proxy Statement or any other statement or schedule, so that none of the S-4, the Proxy Statement and any such statement or schedule will include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, notnot misleading, the party which discovers such information shall promptly notify the other party hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by law, disseminated to the stockholders of the Company. Subject to the fiduciary obligations of the Board and applicable law, the Company shall include in the Proxy Statement the recommendation of the Board that stockholders of the Company adopt this Agreement. (c) Merger Company and Finance Company agree that (i) they will provide the Company with all information concerning Merger Company and Finance Company and their affiliates necessary or appropriate to be included in the Proxy Statement and (ii) at the Special Meeting or any postponement or adjournment thereof (or at any other meeting at which the Merger or this Agreement are considered by stockholders), they will vote, or cause to be voted, all of the Shares then owned by them, or any of their Subsidiaries and affiliates, if any, in favor of the approval and adoption of this Agreement.

Stockholders’ Meeting; Proxy Statement. (a) The Company shall, as promptly as reasonably practicable after the date of this Agreement (and in any event within fifteen (15) Business Days after the date hereof), prepare and file with the SEC the Proxy Statement which shall, subject to Section 5.3, include the Company Board Recommendation, and the Company and Parent shall jointly prepare and file with the SEC a Schedule 13E-3. The Company shall use reasonable best efforts to respond promptly to any comments by the SEC staff in respect of the Proxy Statement. Parent and Merger Sub shall provide to the Company such information as the Company may reasonably request for inclusion in the Proxy Statement. The Proxy Statement and Schedule 13E-3 shall comply as to form in all material respects with the applicable provisions of the Exchange Act and the rules and regulations thereunder. The Company will use its reasonable best efforts (with the assistance of, and after consultation with, Parent as provided by this Section 5.4(a)) to have the preliminary Proxy Statement cleared by the SEC as promptly as reasonably practicable after such filing and the Company shall use its reasonable best efforts to cause the Proxy Statement and Schedule 13E-3 to be mailed to the Company’s shareholders as promptly as reasonably practicable after the date on which Company learns that the preliminary Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon (and in any event within five (5) Business Days after the date thereof). Prior to filing or mailing the Proxy Statement or Schedule 13E-3 or filing any other required documents (or in each case, any amendment or supplement thereto) or responding to any comments of the SEC or its staff with respect thereto, the Company shall provide Parent with an opportunity to review and comment on such document or response and shall give good faith consideration to any comments made by Parent and its counsel. The Company will notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or Schedule 13E-3 or for additional information and will promptly supply Parent with copies of all correspondence between the Company and the SEC or its staff with respect to the Proxy Statement, Schedule 13E-3 or the Contemplated Transactions. (b) Each of the Company, Parent and Merger Sub agrees to promptly (i) correct any information provided by it specifically for use in the Proxy Statement or Schedule 13E-3 if and to the extent that such information will have become false or misleading in any material respect and (ii) supplement the information provided by it specifically for use in the Proxy Statement or Schedule 13E-3 to include any information that will become necessary in order to make the statements in the Proxy Statement or Schedule 13E-3, in light of the circumstances under which they were made, not misleading. Notwithstanding anything in the foregoing to the contrary, the Company makes no representation or warranty with respect to any information supplied by or on behalf of Parent, Merger Sub or any of their respective Affiliates or Representatives for inclusion (or incorporation by reference) in the Proxy Statement or Schedule 13E-3. The Company further agrees to cause the Proxy Statement or Schedule 13E-3 as so corrected or supplemented promptly to be filed with the SEC and to be disseminated to the holders of Shares and the holders of Company Stock Options and Company Equity Awards, in each case as and to the extent required by applicable Law. (c) Subject to the other provisions of this Agreement, the Company shall (i) take all action necessary in accordance with applicable law the DGCL and the Restated Certificate of Incorporation and the By-laws of the Company Organizational Documents to duly call, give notice of, convene and hold a meeting of its stockholders (the "Special Meeting") as promptly as reasonably practicable after following the date hereof mailing of the Proxy Statement or Schedule 13E-3 (and in no event later than the thirty-seventh (37th) day following the first mailing of the Proxy Statement or Schedule 13E-3) for the purpose of considering obtaining the Company Requisite Vote (the “Stockholders’ Meeting”), (ii) conduct a “broker search” in accordance with Rule 14a-13 of the Exchange Act and taking action upon this Agreementestablish a record date for the Stockholders’ Meeting, (iii) unless the Charter Amendment and such other matters as may be appropriate at Company Board shall have effected a Change of Board Recommendation in accordance with Section 5.3, (A) use all reasonable efforts to solicit from its stockholders proxies in favor of the Special Meeting. (b) As soon as reasonably practicable following the date approval of this AgreementAgreement and the Contemplated Transactions and (B) take all reasonable lawful action to solicit the Company Requisite Vote and (iv) be entitled, but not required, to postpone or adjourn the Stockholders’ Meeting to use all reasonable best efforts to solicit additional proxies and votes in favor of adoption of this Agreement if sufficient votes have not been obtained. Subject to the Company Board not having effected a Change of Board Recommendation, the Company shall prepare and file with (x) submit this Agreement to the SEC, and Merger Company and Finance Company shall cooperate with stockholders of the Company in such preparation as promptly as practicable for the purpose of obtaining the Company Requisite Vote at the Stockholders’ Meeting and filing, an S-4 and a preliminary proxy statement and the parties shall file, if necessary, (y) not submit any other statement or schedule relating to this Agreement and the transactions contemplated hereby and use their respective commercially reasonable efforts to furnish the information required to be included Acquisition Proposal for approval by the SEC in stockholders of the S-4Company. Except as required by applicable Law, once the Proxy Statement (as hereinafter defined) and any such statement or schedule. After consultation with Merger CompanyCompany has established the record date for the Stockholder’ Meeting, the Company shall respond promptly to any comments made by not change such record date or establish a different record date without the SEC with respect to the S-4 or the preliminary proxy statement and cause a definitive proxy statement prior written consent of Parent (the "Proxy Statement") not to be mailed to its stockholders and unreasonably withheld, conditioned or delayed). In the parties shall respond promptly to event that the date of the Stockholders’ Meeting as originally called is for any comments with respect to any other statement reason postponed or schedule filed by them. No filing of, or amendment or supplement toadjourned, the S-4Company agrees that unless Parent shall have otherwise approved (with such approval not to be unreasonably withheld, conditioned or the Proxy Statement delayed) in writing, it shall implement such postponement or any other statement or schedule will be made by adjournment in such a way that the Company without providing Merger Company does not establish a reasonable opportunity to review and comment thereonnew record date for the Stockholders’ Meeting, and no filing of any statement as so postponed or schedule will be made adjourned, except as required by Merger Company or Finance Company without providing the Company a reasonable opportunity to review and comment thereon. If at any time after the date the S-4 is declared effective by the SEC or otherwise becomes effective and prior to the Special Meeting any information relating to the Company, Merger Company or Finance Company, or any of their respective affiliates, officers or directors, should be discovered by the Company, Merger Company or Finance Company which is required to be set forth in an amendment or supplement to the S-4, the Proxy Statement or any other statement or schedule, so that none of the S-4, the Proxy Statement and any such statement or schedule will include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, notapplicable Law.