Common use of Stockholders Meeting Clause in Contracts

Stockholders Meeting. The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of considering, as seven separate proposals, (i) the adoption of this Agreement; (ii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend to the stockholders of the Company that the stockholders adopt this Agreement and approve each of the Governance Proposals and the Stockholder Rights Proposal. The Special Committee and the Board of Directors of the Company shall not withdraw such recommendation; provided, however, that the Special Committee or the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendations.

Stockholders Meeting. The Company shallUnless the Board of Directors (or a duly authorized committee thereof) has made a Change of Recommendation, as soon as practicable following the date Company, acting through its Board of Directors (or a duly authorized committee thereof), shall promptly (but no later than ten (10) Business Days after the later of (a) confirmation by the SEC that the SEC has no further comments on the Proxy Statement or that it will not review the Proxy Statement and (b) the No-Shop Period Start Date, subject to the last sentence of this AgreementSection 6.3) take all reasonable action required under the DGCL, the Certificate of Incorporation, the Bylaws and the applicable requirements of the NYSE necessary to duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of consideringadopting this Agreement (including any adjournment or postponement thereof permitted by this Agreement, as seven separate proposalsthe “Stockholders Meeting”); provided that the Company may postpone, recess or adjourn such meeting for up to thirty (30) days (i) to the adoption of this Agreement; extent required by Law, (ii) the approval of an amendment to the Restated Certificate of Incorporation of if the Company has notified Parent pursuant to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iiiSection 6.1(e) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide that the Board of Directors into three Term (or a duly authorized committee thereof) intends to effect a Change of Office Classes Recommendation or to terminate this Agreement pursuant to Section 8.1(d)(ii), (iii) to allow reasonable additional time to solicit additional proxies to the "Staggered Board Proposal"); extent the Company reasonably believes necessary in order to obtain the Company Requisite Vote, (iv) the approval of an amendment to the Restated Certificate of Incorporation if as of the Company eliminating time for which the ability Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Stockholders Meeting Proposal"); or (v) to allow reasonable additional time for the approval filing and dissemination of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and any supplemental or amended disclosure which the Board of Directors (or a duly authorized committee thereof) has determined in good faith after consultation with outside counsel is necessary under applicable Law or fiduciary duty for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting. The Company, acting through its Board of Directors (or a duly authorized committee thereof), shall except as permitted by Section 6.1(e), (a) include in the Proxy Statement the Recommendation and, subject to the consent of the Company shall recommend Financial Advisor, the written opinion of the Financial Advisor, dated as of the date hereof, as to the stockholders fairness of the Per Share Merger Consideration from a financial point of view and (b) use its reasonable best efforts to obtain the Company Requisite Vote; provided that the stockholders adopt this Agreement and approve each of the Governance Proposals and the Stockholder Rights Proposal. The Special Committee and the Board of Directors (or a duly authorized committee thereof) may make a Change of Recommendation in accordance with Section 6.1(e) and, following such Change of Recommendation, may fail to (i) include in the Proxy Statement the Recommendation or (ii) use such reasonable best efforts. The Company shall, upon reasonable request by Parent, keep Parent informed with respect to proxy solicitation results. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not withdraw such recommendation; provided, however, that be required to hold the Special Committee or the Board of Directors may withdraw, change or modify such recommendation Stockholders Meeting if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendationsthis Agreement is terminated.

Stockholders Meeting. The Whether or not the Board of Directors of the Company shall, as soon as practicable following shall take any action permitted by the date third sentence of this AgreementSection 6.5, duly call, give notice of, convene and hold the Company shall cause a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of considering, as seven separate proposals, (i) voting on the adoption of this Agreement; . The Board of Directors of the Company shall (i) include in the Proxy Statement/Prospectus the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority necessary vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification in favor of the adoption of a stockholder rights plan to become effective upon the consummation this Agreement by its stockholders. The Board of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation Directors of the Company increasing shall not withdraw, amend, modify or qualify in a manner adverse to Parent the authorized capital stock Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and Requisite Vote, the Board of Directors of the Company shall recommend be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the stockholders Company shall have been made after the date of the Company that the stockholders adopt this Agreement by any person other than Parent or its affiliates and approve each such proposal is pending at the time of the Governance Proposals such action and the Stockholder Rights Proposal. The Special Committee and (C) the Board of Directors of the Company shall not withdraw such recommendation; providedhave concluded in good faith, howeveron the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the Special Committee financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors may is required to withdraw, change amend or modify such recommendation if the Company Board Recommendation in order to prevent it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate from breaching its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendationsunder the DGCL.

Stockholders Meeting. The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "“Stockholders Meeting"”) for the purpose of considering, as seven eight separate proposals, (i) the adoption of this Agreement; (ii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "“Written Consent Proposal"”); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "“Staggered Board Proposal"”); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's ’s stockholders to call a special meeting of the stockholders (the "“Special Meeting Proposal"”); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's ’s stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's ’s Certificate of Incorporation (the "“Supermajority Voting Proposal"”), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "“Stockholder Rights Plan Proposal") and ”); (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "“Authorized Capital Increase Proposal"”); and (viii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to change the name of the Company to “Eagle Materials Inc.” (the “Name Change Proposal”). The Special Committee and the Board of Directors of the Company shall recommend to the stockholders of the Company that the stockholders adopt this Agreement and approve each of the Governance Proposals Proposals, the Authorized Capital Increase Proposal, the Name Change Proposal and the Stockholder Rights Proposal. The Special Committee and the Board of Directors of the Company shall not withdraw such recommendation; provided, however, that the Special Committee or the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendations.

Stockholders Meeting. The Company shall, as soon as practicable following the date in accordance with applicable law and its Amended and Restated Certificate of this Agreement, Incorporation and By-laws duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, the "Company Special Meeting") of its stockholders (the "Stockholders Meeting") for the purpose of considering, approving and adopting the agreement of merger (as seven separate proposals, (isuch term is used in Section 251 of the DGCL) the adoption of set forth in this Agreement; , approving the Merger and approving the Charter Amendment, in each case by the holders of a majority of the outstanding shares of Company Common Stock (iiwith the holders of Company Class A Common Stock and the holders of Company Class B Common Stock voting together as a single class) and the approval affirmative vote of an amendment to the Restated Certificate holders of Incorporation a majority of the outstanding shares of each of the Company to eliminate the ability of stockholders to act by written consent Class A Common Stock and Company Class B Common Stock voting as separate classes (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase ProposalApproval"). The Company agrees to use its reasonable efforts to cause the Company Special Committee and Meeting to occur within seventy-five (75) days after the date on which the Registration Statement becomes effective, but not earlier than twenty (20) business days after the date the Proxy Statement is first mailed to stockholders. The Company shall include in the Proxy Statement the recommendation of its Board of Directors ("Company Board Recommendation") that its stockholders vote in favor of the Company Stockholder Approval, subject to the duties of the Board of Directors of the Company shall recommend to make any further disclosure to the stockholders (which shall not, unless expressly stated, constitute a withdrawal or adverse modification of such recommendation) and subject to the Company that the stockholders adopt right to withdraw, modify or change such recommendation in accordance with Section 5.10 of this Agreement and approve each of the Governance Proposals and the Stockholder Rights ProposalAgreement. The Special Committee and If the Board of Directors of the Company shall not withdraw such recommendation; providedwithdraws, however, that the Special Committee modifies or changes its recommendation of this Agreement or the Board of Directors may withdraw, change Merger in a manner adverse to Parent or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties resolves to the stockholders do any of the foregoing, the Company by not withdrawingshall nevertheless remain obligated to call, changing or modifying such recommendationsgive notice of, convene and hold the Company Special Meeting.

Stockholders Meeting. The Company shall, as soon as practicable following No later than ten (10) days from the later of the date of this AgreementAgreement or Seller's receipt of Purchaser's information to be included in the Information Statement (as such term is defined below), duly callthe Seller and Purchaser shall finalize an information statement relating to the approval of the Transactions by the Seller's stockholders (the "Information Statement"). The Seller and Purchaser shall provide and include in the Information Statement such information relating to the Seller and Purchaser and the Seller's stockholders as required pursuant to the provisions of applicable securities and corporate laws (including, give notice ofwithout limitation, convene Rule 502 under the Securities Act). The Seller shall, in accordance with its certificate of incorporation and bylaws and the applicable requirements of the Delaware General Corporation Law, call and hold a special meeting of its stockholders (the "Stockholders Meeting") as promptly as practicable for the purpose of considering, as seven separate proposals, (i) permitting them to consider and to vote upon and approve the adoption of this Agreement; (ii) the approval of an amendment to the Restated Certificate of Incorporation principal terms of the Company to eliminate the ability of stockholders to act by written consent Transactional Documents (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase ProposalSeller Stockholders' Meeting"). The Special Committee and the Board of Directors Seller shall cause a copy of the Company shall recommend Information Statement to be mailed to each stockholder of the Seller. As promptly as practicable after the delivery of copies of the Information Statement to all stockholders of the Company Seller, the Seller shall use all commercially reasonable efforts to cause each of such stockholders who is not an "accredited investor" (as defined in Rule 501 under the Securities Act) to appoint a "purchaser representative" (as defined in Rule 501 under the Securities Act) in connection with evaluating the merits and risks of investing in Purchaser Common Stock and to cause each of such stockholders to execute and deliver to Purchaser a stockholder representation letter in the form prepared by the Purchaser and reasonably acceptable to the Seller. In lieu of calling and holding the Seller Stockholders' Meeting, the Seller may solicit written consents in accordance with its certificate of incorporation and bylaws and the applicable requirements of the Delaware General Corporation Law (and the parties hereto acknowledge that the stockholders adopt Seller currently intends to do so). Purchaser will reasonably cooperate with the Seller with respect to the matters set forth in this Agreement and approve each of the Governance Proposals Section 4.9. Purchaser and the Stockholder Rights Proposal. The Special Committee Seller will each promptly provide all information relating to its business or operations necessary for inclusion in the Information Statement to satisfy all requirements of applicable state and the Board of Directors of the Company shall not withdraw such recommendation; provided, however, that the Special Committee or the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably federal securities and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendationscorporate laws.

Stockholders Meeting. The Each of the Company and Parent shall, as soon as practicable following the date in accordance with applicable law and their respective Certificate or Articles of this Agreement, Incorporation and By-laws duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, shall be referred to as the "Parent Special Meeting" or the "Company Special Meeting," as the case may be, and, together as the "Special Meetings") of its respective stockholders for the 30 35 purpose of, in the case of the Company, approving and adopting the agreement of merger (as such term is used in Section 251 of the DGCL) set forth in this Agreement and approving the Merger by the holders of a majority of the outstanding shares of Company Common Stock (the "Stockholders MeetingCompany Stockholder Approval") for and in the purpose case of considering, as seven separate proposalsParent, (i) approving the adoption issuance of this Agreement; (ii) the approval shares of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend Parent Common Stock to the stockholders of the Company that in the stockholders adopt this Agreement and approve each Merger by the holders of a majority of the Governance Proposals outstanding shares of Parent Common Stock actually present and voting and (ii) electing the Stockholder Rights Proposal. The Special Committee and the Director Nominees (as defined in Section 5.17) to Parent's Board of Directors by a plurality vote of the holders of Parent Common Stock (collectively, the "Parent Stockholder Approval"). Parent and the Company agree to use their reasonable efforts to cause the Special Meetings to occur within sixty (60) days after the date on which the Registration Statement becomes effective but not sooner than twenty (20) business days after the date the Joint Proxy Statement is first mailed to stockholders. Each of Parent and the Company shall include in the Joint Proxy Statement the recommendation of their Boards of Directors that stockholders vote in favor of the Company Stockholder Approval or the Parent Stockholder Approval, as the case may be; in each case subject to the duties of the respective Boards of Directors to make any further disclosure to the stockholders (which shall not withdraw not, unless expressly stated, constitute a withdrawal or adverse modification of such recommendation; provided) and, howeversubject to the right to change such recommendation or terminate this Agreement following receipt of a Company Superior Proposal or Parent Superior Proposal, that as applicable, or subject to the right to change such recommendation in accordance with Section 5.20. Each of Parent and the Company agrees to cooperate and use its respective best efforts to hold the Parent Special Committee or Meeting and the Company Special Meeting on the same day. If the Company's Board of Directors may withdrawwithdraws, change modifies or modify such changes its recommendation if it determines reasonably and in good faith that the Special Committee of this Agreement or the Board of Directors will violate its fiduciary duties Merger in a manner adverse to the stockholders Parent or resolves to do any of the foregoing, the Company by not withdrawingshall remain obligated to call, changing or modifying such recommendationsgive notice of, convene and hold the Company Special Meeting.

Stockholders Meeting. (a) The Company Company, acting through the Board, shall, as soon as practicable following in accordance with applicable Law and the date Company’s Certificate of this AgreementIncorporation and By-laws, (i) duly call, give notice of, convene and hold a special meeting of its stockholders (as promptly as practicable after the "Stockholders Meeting") date of this Agreement for the purpose of considering, as seven separate proposalstaking action on, (i) the adoption of this Agreement; (ii) and voting on the approval of an amendment the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) Transactions, which require the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend to the stockholders of the Company that (such meeting, including any adjournment or postponement thereof, the “Stockholders’ Meeting”), (ii) submit the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders adopt this Agreement and approve each of the Governance Proposals Company, to a vote of the Company’s stockholders, and (iii) subject to Section 7.01(b), (A) include in the Stockholder Rights Proposal. The Special Committee and Proxy Statement the recommendation of the Board of Directors of (the Company shall not withdraw such recommendation; provided, however, “Board Recommendation”) that the Special Committee or the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to the stockholders of the Company approve the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company (such approval by not withdrawingthe Company’s stockholders, changing the “Stockholder Approval”) and (B) use all reasonable efforts to obtain the Stockholder Approval, including postponing or modifying such recommendationsadjourning the Stockholders’ Meeting to obtain a quorum or to solicit additional proxies or calling, giving notice of, convening and holding additional Stockholders’ Meetings. At the Stockholders’ Meeting, no matters shall be noticed or submitted to the stockholders other than the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company or a proposal to adjourn or postpone the meeting, for purposes of soliciting additional proxies in favor of the approval of the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company. The Company shall call, give notice of, convene and hold the Stockholders’ Meeting and submit the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company.

Stockholders Meeting. The Company shall, as (a) As soon as practicable following the date acquisition by Merger Sub of the Minimum Shares pursuant to the Offer, the Company, acting through the Company Board, shall, in accordance with applicable law, its Certificate of Incorporation and Bylaws and subject to the other provisions of this AgreementSection 7.1(a), to the extent necessary to consummate the Merger, promptly and duly call, give notice of, convene and hold as soon as practicable a meeting of its stockholders the holders of Common Stock (the "Stockholders Company Stockholder Meeting") for the purpose of consideringvoting to approve and adopt this Agreement and the transactions contemplated hereby and (i) recommend that the holders of the Common Stock accept the Offer and tender all of their shares of Common Stock to Purchaser and approve this Agreement and the transactions contemplated hereby, as seven separate proposalsincluding the Merger, which recommendation shall be included in the Proxy Statement, if any, and (ii) take all reasonable and lawful action to solicit and obtain such approval. The Company Board shall not withdraw, amend or modify in a manner adverse to Parent its recommendation referred to in clause (i) of the preceding sentence (or announce publicly its intention to do so) provided that the disclosure of (x) the receipt of an Alternative Transaction or (y) the fact that the Company Board is considering such Alternative Transaction or reviewing it with its advisers (to the extent the Company Board shall have determined in good faith that any such disclosure is required by law or any applicable securities exchange requirement) shall not by itself constitute such a withdrawal, modification or amendment. Notwithstanding the foregoing, prior to the acceptance for payment of the Minimum Shares pursuant to the Offer, the Company Board shall be permitted to (A) withdraw, amend or modify its recommendation (or publicly announce its intention to do so) of this Agreement and the transactions contemplated hereby, including the Offer and the Merger, in a manner adverse to Parent or (B) approve or recommend or enter into an agreement with respect to a Superior Transaction if: (i) the adoption of this AgreementCompany has complied with Section 7.3; (ii) a Superior Transaction shall have been proposed by any Person other than Parent and such proposal is pending at the approval time of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal")such action; (iii) the approval Company Board shall have determined in good faith, based on the advice of an amendment its outside legal counsel, that the failure to the Restated Certificate of Incorporation withdraw, amend or modify its recommendation or to approve or recommend or enter into such Superior Transaction would constitute a breach of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal")Board's fiduciary duties under applicable law; and (iv) the approval Company shall have notified Parent of an amendment to such Superior Transaction proposal at least three Business Days in advance of such action. No action by the Restated Certificate Company Board permitted by the preceding sentence (each, a "Permitted Action") shall constitute a breach of Incorporation this Agreement by the Company. (b) Notwithstanding the preceding paragraph or any other provision of this Agreement, in the event Merger Sub owns 90% or more of the Company eliminating the ability outstanding shares of each class of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (following expiration of the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of Offer, the Company shall recommend not be required to call the Company Stockholder 27 29 Meeting or to file or mail the Proxy Statement, and the parties hereto shall, at the request of Parent and subject to Article VIII, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable following such expiration without a meeting of stockholders of the Company that the stockholders adopt this Agreement and approve each in accordance with Section 253 of the Governance Proposals and the Stockholder Rights ProposalDGCL. The Special Committee and the Board of Directors of (c) If required by applicable law, as soon as practicable following Parent's request, the Company shall not withdraw such recommendation; providedfile with the SEC under the Exchange Act and the rules and regulations promulgated thereunder, howeverand shall use its reasonable best efforts to have cleared by the SEC, that the Special Committee or the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties Proxy Statement with respect to the stockholders Company Stockholder Meeting. Parent, Purchaser and the Company will cooperate with each other in the preparation of the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and Purchaser will furnish to the Company the information relating to it required by not withdrawingthe Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement. The Company agrees to use its reasonable best efforts, changing or modifying after consultation with the other parties hereto, to respond promptly to any comments made by the SEC with respect to the Proxy Statement and any preliminary version thereof filed by it and cause such recommendationsProxy Statement to be mailed to the Company's stockholders at the earliest practicable time. SECTION 7.2.

Stockholders Meeting. The If the adoption of this Agreement by the Company’s stockholders is required by applicable Law, the Company shall, as soon promptly as reasonably practicable following after the later of (i) the Offer Closing Date, (ii) the Offer Termination Date and (iii) the date on which the SEC (or the staff of this Agreementthe SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of NASDAQ and the Restated Certificate of Incorporation and the Bylaws of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders “Stockholders’ Meeting"”) for the purpose of consideringobtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(d) (but, as seven separate proposalsfor the avoidance of doubt, (i) unless this Agreement is terminated pursuant to Section 8.1, any such Adverse Recommendation Change shall not relieve the Company of its obligation to give notice of, convene and hold a meeting of its stockholder in accordance with this Section 6.3), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Notwithstanding anything to the contrary contained in this Agreement; , the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) with Parent’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, and (ii) if as of the approval time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of an amendment Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting. Notwithstanding the foregoing, if, following the Offer Closing and the exercise, if any, of the Top-Up Option, Parent and its affiliates shall own at least ninety percent (90%) of the outstanding shares of Company Common Stock, the parties hereto shall take all necessary and appropriate action, including with respect to the Restated Certificate transfer to Acquisition Sub of Incorporation any shares of Company Common Stock held by Parent or its affiliates, to cause the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan Merger to become effective upon as soon as practicable after the consummation Offer Closing without the Stockholders’ Meeting in accordance with Section 253 of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend to the stockholders of the Company that the stockholders adopt this Agreement and approve each of the Governance Proposals and the Stockholder Rights Proposal. The Special Committee and the Board of Directors of the Company shall not withdraw such recommendation; provided, however, that the Special Committee or the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendationsDGCL.

Stockholders Meeting. The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold hold, a meeting of its stockholders (the "Stockholders Meeting") for the purpose of considering, as seven four separate proposals, (i) the adoption of this Agreement; (ii) the approval of an amendment to the Restated Certificate of Incorporation of the Company establishing a range for the number of directors on the Surviving Corporation's Board of Directors from six to eliminate nine, the ability actual number to be determined exclusively by resolution of stockholders the Surviving Corporation's Board of Directors, a provision that prohibits the alteration or repeal of this provision without the vote of at least 66- 2/3% of the total voting power of the outstanding shares of the Surviving Corporation's voting stock, voting together as a single class, and related provisions in Article Twelfth of the Certificate of Incorporation as set forth in Exhibit A-1 hereto to act by written consent become effective in the Merger at the Effective Time (the "Written Consent ProposalBoard Size Amendment"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company providing for a requirement that the approval of 66- 2/3% of the total voting power of the outstanding shares of the Surviving Corporation's common stock is necessary to divide approve any merger or consolidation, any sale, lease, exchange or other disposition of all or substantially all of the Surviving Corporation's assets and, unless approved by two-thirds of the Surviving Corporation's Board of Directors into three Term Directors, any issuance of Office Classes voting securities of the Surviving Corporation that would require stockholder approval and related provisions in Article Thirteenth of the Certificate of Incorporation as set forth in Exhibit A-1 hereto to become effective in the Merger at the Effective Time (the "Staggered Board ProposalSupermajority Voting Amendment"); ) and (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating providing for an increase in authorized capital and the ability creation of a new Class C Common Stock having one-tenth ( 1/10) of one vote per share and related provisions in Article Fourth of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan as set forth in Exhibit A-1 hereto to become effective upon in the consummation of Merger at the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company Effective Time (the "Authorized Capital Increase ProposalAmendment"). The Special Committee Company hereby represents and warrants to Harcourt General that a committee of independent directors of the Company's Board of Directors has approved the Merger, this Agreement, the Board Size Amendment, the Supermajority Voting Amendment and the Authorized Capital Amendment, has determined that the Merger, this Agreement, the transactions contemplated by the Distribution Agreement, the Board Size Amendment, the Supermajority Voting Amendment and the Authorized Capital Amendment are advisable and favorable to and, therefore, fair to and in the best interests of the Company shall recommend to the stockholders of the Company other than Harcourt General, and has recommended that the stockholders adopt this Agreement and approve each of the Governance Proposals and the Stockholder Rights Proposal. The Special Committee and the Board of Directors of the Company vote in favor of the adoption of this Agreement, the Board Size Amendment, the Supermajority Voting Amendment and the Authorized Capital Amendment. The Company shall, through a committee of independent directors of its Board of Directors, continue to recommend to its stockholders adoption of this Agreement, the Board Size Amendment, the Supermajority Voting Amendment and the Authorized Capital Amendment and shall not withdraw such recommendation; provided, however, that the Special Committee or the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendations.

Stockholders Meeting. The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of considering, as seven separate proposals, (i) the adoption of this Agreement; (ii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and Whether or not the Board of Directors of the Company shall recommend take any action permitted by the third sentence of this Section 4.5, the Company shall cause a meeting of its Stockholders (the “Stockholders’ Meeting”) to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on the adoption of this Agreement or, subject to approval of Bionik, the Company shall solicit written consents of the applicable stockholders in lieu of a Stockholders’ Meeting. The Board of Directors of the Company that shall (i) include in the stockholders adopt proxy statement or other soliciting document prepared therefor its recommendation in favor of adoption of this Agreement (the “Board Recommendation”) and approve each (ii) use its reasonable best efforts to obtain the necessary votes in favor of the Governance Proposals and the Stockholder Rights Proposaladoption of this Agreement by its Stockholders. The Special Committee and Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Bionik the Board Recommendation (or announce its intention to do so), except that, prior to the receipt of the Company Requisite Vote, the Board of Directors of the Company shall not withdraw such recommendation; providedbe permitted to withhold, howeverwithdraw, that amend, modify or materially qualify in a manner adverse to Bionik the Special Committee or Board Recommendation and shall be released from its obligations under clauses (i) and (ii) above, following two Business Days’ prior notice to Bionik, but only if (A) the Company has complied in all respects with Section 4.4 of this Agreement, and (B) after consulting with outside legal counsel, the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or to include the Board of Directors will violate Recommendation or not withhold, withdraw, amend, modify or qualify the Board Recommendation would be inconsistent with its fiduciary duties to the stockholders Stockholders of the Company by not withdrawing, changing or modifying such recommendationsunder applicable law.

Stockholders Meeting. The Company shall, as soon as practicable following the date in accordance with applicable Law and its certificate of this Agreement, duly call, give notice ofincorporation and by-laws, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of considering, as seven separate proposals, (i) the adoption of this Agreement; (ii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders Stockholders (the "Special Meeting Proposal"“Stockholders Meeting”) as promptly as practicable after the date of mailing of the Proxy Statement (and in any event, subject to the provisos to this sentence, no more than thirty (30) days after such date of mailing) to consider and vote upon the adoption of this Agreement and, subject to Section 5.4, shall use its reasonable best efforts, consistent with customary practice, to solicit the Stockholder Approval (it being understood that the Parent shall also be entitled to take any reasonable lawful action to solicit the Stockholder Approval); (v) provided, that such solicitation activities may include cooperating with the approval of an amendment Parent in making presentations to proxy advisory firms or other similar Persons making a recommendation with respect to the Restated Certificate of Incorporation transactions contemplated hereby; provided, further, that the Company may postpone, delay or adjourn the Stockholders Meeting (i) with the consent of the Company requiring a supermajority vote of the Company's stockholders entitled Parent (not to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"be unreasonably withheld, conditioned or delayed), (viii) for the ratification of the adoption absence of a stockholder rights plan quorum, (iii) to become effective upon allow reasonable additional time for the consummation preparation and filing of the Distribution (the "Stockholder Rights Plan Proposal"any supplemental or amended disclosure that is prepared and filed in accordance with Section 5.2(a) and (vii) for such supplemental or amended disclosure to be disseminated and reviewed by the approval of an amendment Stockholders prior to the Restated Certificate Stockholders Meeting, or (iv) if in the good faith judgment of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors (after consultation with its outside legal counsel), failure to adjourn, delay or postpone the Stockholders Meeting would reasonably be expected to be inconsistent with the fiduciary duties of the Company shall recommend to the stockholders of the Company that the stockholders adopt this Agreement and approve each of the Governance Proposals and the Stockholder Rights Proposal. The Special Committee and the Board of Directors under applicable Law; provided, further, that the Parent may require the Company to postpone or adjourn the Stockholders Meeting one time (but in no event to a date that is less than two (2) Business Days prior to the End Date), unless prior to any such postponement or adjournment the Company shall have received an aggregate number of proxies voting for the adoption of this Agreement (and which have not been withdrawn) sufficient such that, if the shares of Common Stock subject to such proxies are not otherwise voted at the Stockholders Meeting so as to withdraw such proxies, the condition set forth in Section 6.1(a) will be satisfied at the Stockholders Meeting. Without the prior written consent of the Parent, the adoption of this Agreement and matters related to the transactions contemplated hereby (including the Merger) shall be the only matters which the Company shall propose to be acted on by the Stockholders at the Stockholders Meeting. The Company shall establish a record date for purposes of determining Stockholders entitled to notice of and vote at the Stockholders Meeting (the “Record Date”) on or prior to the date on which the Proxy Statement is mailed to the Stockholders pursuant to Section 5.2. Once established, the Company shall not withdraw such recommendation; providedchange the Record Date or establish a different record date for the Stockholders Meeting without the prior written consent of the Parent (not to be unreasonably withheld, howeverconditioned or delayed), that the Special Committee or unless the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith (after consultation with its outside legal counsel) that it is required to do so by applicable Law or pursuant to the Company’s certificate of incorporation or by-laws. In the event that the Special Committee date of the Stockholders Meeting as originally called is for any reason postponed or adjourned or otherwise delayed, the Company agrees that, unless the Parent shall have otherwise approved in writing, it shall implement such postponement or adjournment or other delay in such a way that the Company does not establish a new record date for the Stockholders Meeting, as so postponed, adjourned or delayed, except as required by applicable Law or the Board Company’s certificate of Directors will violate its fiduciary duties incorporation or by-laws. The Company shall, upon the reasonable request of the Parent, advise the Parent periodically (and at least on a daily basis on each of the last seven (7) Business Days prior to the stockholders date of the Stockholders Meeting) as to the aggregate tally of the proxies received by the Company by not withdrawingwith respect to the Stockholder Approval. Unless this Agreement has been terminated pursuant to and in accordance with Article VII, changing or modifying such recommendationsand notwithstanding any Change of Recommendation, this Agreement shall be submitted to the Stockholders for the purpose of obtaining the Stockholder Approval.

Stockholders Meeting. The Company Company, acting through the Board, shall, as soon as practicable following in accordance with applicable Law and the date Company’s Certificate of this AgreementIncorporation and By-laws, (a) duly call, give notice of, convene and hold a special meeting of its stockholders (as promptly as practicable after the "Stockholders Meeting") date of this Agreement for the purpose of considering, as seven separate proposalstaking action on, and voting on the issuance of the Purchased Securities (the “Stockholders’ Meeting”), (b) the Company shall submit the issuance of the Purchased Securities to a vote of the Company’s stockholders and (c) subject to Section 6.04(d), (i) include in the adoption of this Agreement; (ii) Proxy Statement the approval of an amendment to the Restated Certificate of Incorporation recommendation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend to that the stockholders of the Company that approve the issuance of the Purchased Securities (such approval by the Company’s stockholders, the “Stockholder Approval”) and (ii) use all reasonable efforts to obtain the Stockholder Approval, including, without limitation, postponing or adjourning the Stockholders’ Meeting to obtain a quorum or to solicit additional proxies or calling, giving notice of, convening and holding additional Stockholders’ Meetings. At the Stockholders’ Meeting, no matters shall be noticed or submitted to the stockholders adopt this Agreement and approve each other than the issuance of the Governance Proposals and Purchased Securities or a proposal to adjourn or postpone the Stockholder Rights Proposalmeeting, including for purposes of soliciting additional proxies in favor of the approval of the issuance of the Purchased Securities. The Special Committee Company shall call, give notice of, convene and hold the Stockholders’ Meeting and submit the issuance of the Purchased Securities to a vote of the Company’s Stockholders, regardless of the commencement, disclosure, announcement or submission to it of any Acquisition Proposal (whether or not a Superior Proposal), any furnishing of information, discussions or negotiations with respect thereto, or any decision or action by the Board of Directors to change, withhold or withdraw its recommendation in respect of the issuance of the Purchased Securities. The Company shall not withdraw such recommendation; provided, however, that the Special Committee or the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties submit to the vote of its stockholders of the Company by any Acquisition Proposal (whether or not withdrawing, changing or modifying such recommendationsa Superior Proposal).

Stockholders Meeting. The Each of the Company and Parent shall, as soon as practicable following in accordance with applicable law and their respective Certificate or Articles of Incorporation and the date of this Agreement, By-Laws duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, shall be referred to as the "Parent Special Meeting" or the "Company Special Meeting," as the case may be, and, together as the "Special Meetings") of its respective stockholders (the "Stockholders Meeting") as soon as practicable for the purpose of consideringof, as seven separate proposals, (i) in the adoption of this Agreement; (ii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote case of the Company's stockholders entitled to vote thereon to amend certain provisions , approving and adopting the agreement of merger (as such term is used in Section 251 of the Surviving Corporation's Certificate DGCL) set forth in this Agreement and approving the Merger, and in the case of Incorporation (Parent, approving the "Supermajority Voting Proposal"), (vi) the ratification issuance of the adoption shares of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend Parent Common Stock to the stockholders of the Company that in the stockholders adopt this Agreement and approve each Merger, by the holders of, in the case of the Governance Proposals Company, a majority of the outstanding shares of Company Common Stock and, in the case of Parent, a majority of the outstanding shares of Parent Common Stock actually present and voting (the "Company Stockholder Approval" and the "Parent Stockholder Rights ProposalApproval," as the case may be). The Special Committee Parent and the Board Company agree to use their reasonable efforts to cause the Special Meetings to occur within forty-five (45) days after the date on which the Registration Statement becomes effective. Each of Parent and the Company shall include in the Joint Proxy Statement the recommendation of their Boards of Directors that stockholders vote in favor of the Company shall not withdraw such recommendation; provided, however, that the Special Committee Stockholder Approval or the Board Parent Stockholder Approval, as the case may be; in each case subject to the duties of the respective Boards of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to make any further disclosure to the stockholders (which shall not, unless expressly stated, constitute a withdrawal or adverse modification of such recommendation) and, in the case of the Company by not withdrawingCompany, changing subject to the right to change such recommendation or modifying such recommendationsterminate this Agreement following receipt of a Superior Proposal as defined in Section 5.10.

Stockholders Meeting. The (a) Unless there shall be a Change in the Company shallBoard Recommendation (as defined below), as soon as practicable following the date of this Agreement, Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders on a date as soon as reasonably practicable (the "Company Stockholders Meeting") for the purpose of consideringobtaining the required approval of its stockholders with respect to the transactions contemplated by this Agreement, as seven separate proposals, (i) and shall take all lawful action to solicit the adoption of this Agreement; (ii) , by the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority requisite vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee its stockholders; and the Board of Directors of the Company shall recommend make the Company Board Recommendation, and shall not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Parent such recommendation or the stockholders approval of the Company that the stockholders adopt Merger or this Agreement or take any action or make any statement in connection with the Company Stockholders Meeting inconsistent with such recommendation or approval (collectively, a "Change in the Company Board Recommendation"); provided the foregoing shall not prohibit accurate disclosure (and approve each such disclosure shall not be deemed to be a Change in the Company Board Recommendation) of material factual information regarding the business, financial condition or results of operations of Parent or the Company or the fact that an Acquisition Proposal has been made, the identity of the Governance Proposals and party making such proposal or the Stockholder Rights Proposal. The Special Committee and material terms of such proposal (provided, that the Board of Directors of the Company shall does not withdraw withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Parent its recommendation), to the extent such recommendationinformation, facts, identity or terms is required to be disclosed under applicable law; providedand, howeverprovided further, that the Special Committee or the Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to the stockholders of the Company by may make a Change in the Company Board Recommendation pursuant to SECTION 5.4 hereof. If there is a Change in the Company Board Recommendation and/or this Agreement is terminated, this Agreement need not withdrawing, changing or modifying such recommendationsbe submitted to a vote of the Company's stockholders.

Stockholders Meeting. The Each of the Company and Parent shall, as soon as practicable following in accordance with applicable law and their respective Certificate or Articles of Incorporation and the date of this Agreement, By-Laws duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, shall be referred to as the "PARENT SPECIAL MEETING" or the "COMPANY SPECIAL MEETING," as the case may be, and, together as the "SPECIAL MEETINGS") of its respective stockholders (the "Stockholders Meeting") as soon as practicable for the purpose of consideringof, as seven separate proposals, (i) in the adoption of this Agreement; (ii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote case of the Company's stockholders entitled to vote thereon to amend certain provisions , approving and adopting the agreement of merger (as such term is used in Section 251 of the Surviving Corporation's Certificate DGCL) set forth in this Agreement and approving the Merger, and in the case of Incorporation (Parent, approving the "Supermajority Voting Proposal"), (vi) the ratification issuance of the adoption shares of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend Parent Common Stock to the stockholders of the Company that in the stockholders adopt this Agreement and approve each Merger, by the holders of, in the case of the Governance Proposals Company, a majority of the outstanding shares of Company Common Stock and, in the case of Parent, a majority of the outstanding shares of Parent Common Stock actually present and voting (the "COMPANY STOCKHOLDER APPROVAL" and the Stockholder Rights Proposal"PARENT STOCKHOLDER APPROVAL," as the case may be). The Special Committee Parent and the Board Company agree to use their reasonable efforts to cause the Special Meetings to occur within forty-five (45) days after the date on which the Registration Statement becomes effective. Each of Parent and the Company shall include in the Joint Proxy Statement the recommendation of their Boards of Directors that stockholders vote in favor of the Company shall not withdraw such recommendation; provided, however, that the Special Committee Stockholder Approval or the Board Parent Stockholder Approval, as the case may be; in each case subject to the duties of the respective Boards of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to make any further disclosure to the stockholders (which shall not, unless expressly stated, constitute a withdrawal or adverse modification of such recommendation) and, in the case of the Company by not withdrawingCompany, changing subject to the right to change such recommendation or modifying such recommendationsterminate this Agreement following receipt of a Superior Proposal as defined in Section 5.10.

Stockholders Meeting. (a) The Company Company, acting through its Board of Directors, shall, as soon as practicable following the date of this Agreement, in accordance with applicable law (i) duly call, give notice of, convene and hold a special meeting (the "Special Meeting") of its stockholders (and submit this Agreement to a vote of the "Stockholders Meeting") for Company's stockholders as promptly as practicable following the purpose of considering, as seven separate proposals, (i) the adoption execution and delivery of this Agreement; (ii) as promptly as practicable following the execution and delivery of this Agreement, subject to review of the subject proxy materials by the Securities and Exchange Commission ("SEC") and notification (either orally or in writing) to the Company that the SEC has no further comments relating to such proxy materials, distribute a letter to stockholders, notice of meeting, proxy statement and form of proxy to stockholders of the Company in connection with the Merger (collectively, including any amendments or supplements thereto, the "Proxy Statement"), and include in the Proxy Statement, (A) the recommendation of the Board of Directors that stockholders of the Company vote in favor of the approval of an amendment the Merger Agreement and (B) the written opinions of Xxxxxxxx Wertheim & Co. Incorporated ("Xxxxxxxx Xxxxxxxx") and Xxxxx Xxxxxx Inc. ("Xxxxx Xxxxxx") that the Merger Consideration is fair to the Restated Certificate of Incorporation stockholders of the Company to eliminate the ability from a financial point of stockholders to act by written consent (the "Written Consent Proposal")view; (iii) as promptly as practicable following the approval execution and delivery of an amendment this Agreement, file with the SEC a preliminary form of the Proxy Statement to be sent to the Restated Certificate of Incorporation stockholders of the Company relating to divide the Board solicitation of Directors into three Term stockholder votes at the Special Meeting, which Proxy Statement shall include all information concerning the Company, Parent and Acquisition required to be set forth therein pursuant to the Securities Exchange Act of Office Classes 1934, as amended (the "Staggered Board Proposal1934 Act")) and the applicable rules and regulations thereunder (the "1934 Act Rules" and, together with the 1934 Act, the "Exchange Act") in connection with the transactions contemplated by this Agreement; (iv) the approval of an amendment to the Restated Certificate of Incorporation file a definitive form of the Proxy Statement which shall reflect compliance with comments and requests in accordance with the Exchange Act from the SEC as the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal")and Parent shall deem appropriate; (v) distribute such definitive Proxy Statement to its stockholders in accordance with applicable law; and (vi) take all such other action reasonably necessary or appropriate to obtain the lawful approval of an amendment to this Agreement by the Restated Certificate of Incorporation of the Company requiring a supermajority vote stockholders of the Company's stockholders entitled to vote thereon to amend certain provisions of . Notwithstanding the Surviving Corporation's Certificate of Incorporation (foregoing, the "Supermajority Voting Proposal")Special Meeting need not be called or held and, (vi) the ratification of the adoption of a stockholder rights plan to become effective upon the consummation of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment prior to the Restated Certificate Special Meeting, the recommendation of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend may be withdrawn, modified or amended to the stockholders extent that, as a result of the Company that the stockholders adopt this Agreement and approve each commencement or receipt of the Governance Proposals and the Stockholder Rights Proposal. The Special Committee and an Acquisition Proposal (as hereinafter defined in Section 5.2(a)) which constitutes a Superior Proposal (as hereinafter defined in Section 5.2(d)), the Board of Directors of the Company shall not withdraw such recommendation; provideddetermines in good faith, howeverafter receipt of advice from independent legal counsel to the Company, that the Special Committee or the Board failure to so act would result in a breach of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendationsunder applicable law.

Stockholders Meeting. The Unless the Board of Directors of the Company shallhas made a Change of Recommendation, as soon as practicable the Company, acting through its Board of Directors (or a committee thereof), shall promptly following confirmation by the date SEC that the SEC has no further comments on the Proxy Statement (but subject to the last sentence of this AgreementSection 6.8), take all action required under the NRS, the Articles of Incorporation, the Bylaws and the applicable requirements of the New York Stock Exchange necessary to duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of consideringapproving and adopting this Agreement (including any adjournment or postponement thereof, as seven separate proposalsthe “Stockholders Meeting”), with the record date and meeting date being selected after reasonable consultation with Parent; provided that the Company may postpone, recess, adjourn or cancel such meeting (i) to the adoption of this Agreement; extent required by Law, (ii) with the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); of Parent, (iii) to allow reasonable additional time to solicit additional proxies to obtain the approval of an amendment to the Restated Certificate of Incorporation Company Requisite Vote or (iv) if as of the Company time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) and voting to divide constitute a quorum necessary to conduct the business of the Stockholders Meeting. The Company, acting through its Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"or a committee thereof); (iv) the approval of an amendment , shall, subject to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"Section 6.6(b), (via) include in the ratification Proxy Statement the Recommendation, (b) reaffirm the Recommendation (which Recommendation shall, for avoidance of doubt, be in respect of this Agreement and the adoption Merger, as may be modified pursuant to any changes to the terms of this Agreement irrevocably offered in writing by Parent pursuant to, and in accordance with Section 6.6(b)(iii) or Section 6.6(c), as applicable) within five (5) Business Days after a stockholder rights plan request therefor by Parent following the date on which any Acquisition Proposal or material modification thereto is received by the Company or is published, sent or communicated to become effective upon the consummation Company’s stockholders (or, if the Stockholders Meeting is scheduled to be held within five (5) Business Days, within one (1) Business Day, if possible, before the Stockholder Meeting) (provided that Parent may not make any such request on more than one (1) occasion in respect of the Distribution (the "Stockholder Rights Plan Proposal"each Acquisition Proposal or material modification thereof) and (viic) the approval of an amendment use its reasonable best efforts to the Restated Certificate of Incorporation of obtain the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and Requisite Vote, including by soliciting proxies therefor; provided that the Board of Directors of the Company may fail to include the Recommendation in the Proxy Statement or withdraw, modify, qualify or change the recommendation, or formally resolve to effect or publicly announce an intention to effect any of the foregoing solely in accordance with Section 6.6(b)(iii) or Section 6.6(c) and following such Change of Recommendation, may fail to use such reasonable best efforts. Notwithstanding the foregoing, without the prior written consent of Parent, the Stockholder Meeting will not be postponed or adjourned (A) by more than 10 calendar days at a time without the prior written consent (which consent shall recommend not be unreasonably withheld or delayed) of Parent; or (B) with respect to Section 6.8(iii), by more than 30 calendar days after the date on which the Stockholder Meeting was (or was required to be) originally scheduled. In no event will the record date of the Stockholder Meeting be changed without Parent’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless required by applicable Law. Notwithstanding anything to the stockholders of the Company that the stockholders adopt contrary contained in this Agreement and approve each of the Governance Proposals and the Stockholder Rights Proposal. The Special Committee and the Board of Directors of Active.22007448.8.doc Agreement, the Company shall not withdraw such recommendation; provided, however, that be required to hold the Special Committee or the Board of Directors may withdraw, change or modify such recommendation Stockholders Meeting if it determines reasonably and this Agreement is validly terminated in good faith that the Special Committee or the Board of Directors will violate accordance with its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendationsterms.

Stockholders Meeting. The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of considering, as seven five separate proposals, : (ia) the adoption of this Agreement; (iib) the approval of an amendment to the Company's Restated Certificate of Incorporation placing limits on the size of the Company Company's board and requiring, subject to eliminate certain limitations, that board vacancies and newly created directorships be filled only by remaining board members (the "Board Size Proposal"); (c) the approval of an amendment to the Company's Restated Certificate of Incorporation eliminating the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iiid) the approval of an amendment to the Company's Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); and (ve) the approval of an amendment to the Company's Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Corporation By-Laws by stockholder action or to amend the Surviving Corporation Certificate of Incorporation (the "Supermajority Voting Proposal") in a manner that would affect matters covered by the Board Size Proposal, the Written Consent Proposal, the Special Meeting Proposal or the Supermajority Voting Proposal if adopted, all as set forth in Exhibit A-1(a) hereto (collectively, the "Governance Amendments"), (vi) the ratification of the adoption of a stockholder rights plan to become effective solely upon the consummation effectiveness of the Distribution (the "Stockholder Rights Plan Proposal") Merger. The Company shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend to the stockholders of the Company that the stockholders adopt this Agreement and approve each of the Governance Proposals Amendments and the Stockholder Rights Proposal. The Special Committee and the Board of Directors of the Company shall not withdraw withdraw, change or modify such recommendation; provided, however, that the Special Committee or the Company's Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith faith, after consultation with outside counsel, that it would be inconsistent with the Special Committee or the Board of Directors will violate its Board's fiduciary duties to the stockholders of the Company by not withdrawingto withdraw, changing change or modifying modify such recommendationsrecommendation.

Stockholders Meeting. The Whether or not the Board of Directors of the Company shall, as soon as practicable following shall take any action permitted by the date third sentence of this AgreementSECTION 6.5, duly call, give notice of, convene and hold the Company shall cause a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of considering, as seven separate proposals, (i) voting on the adoption of this Agreement; . The Board of Directors of the Company shall (i) include in the Proxy Statement/Prospectus the recommendation described in SECTION 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereof, the Exchange Ratio is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the approval of an amendment to the Restated Certificate of Incorporation of the Company to eliminate the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iii) the approval of an amendment to the Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); (v) the approval of an amendment to the Restated Certificate of Incorporation of the Company requiring a supermajority necessary vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Certificate of Incorporation (the "Supermajority Voting Proposal"), (vi) the ratification in favor of the adoption of a stockholder rights plan to become effective upon the consummation this Agreement by its stockholders. The Board of the Distribution (the "Stockholder Rights Plan Proposal") and (vii) the approval of an amendment to the Restated Certificate of Incorporation Directors of the Company increasing shall not withdraw, amend, modify or qualify in a manner adverse to Parent the authorized capital stock Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and Stockholder Approval, the Board of Directors of the Company shall recommend be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with SECTION 6.1, (b) an unsolicited bona fide written Transaction Proposal with respect to the stockholders Company shall have been made after the date of the Company that the stockholders adopt this Agreement by any person other than Parent or its affiliates and approve each such proposal is pending at the time of the Governance Proposals such action and the Stockholder Rights Proposal. The Special Committee and (C) the Board of Directors of the Company shall not withdraw such recommendation; providedhave concluded in good faith, howeveron the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in SECTION 6.1), or (ii) there has been any change in the Special Committee financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors may is required to withdraw, change amend or modify such recommendation if the Company Board Recommendation in order to prevent it determines reasonably and in good faith that the Special Committee or the Board of Directors will violate from breaching its fiduciary duties to the stockholders of the Company by not withdrawing, changing or modifying such recommendationsunder the DGCL.

Stockholders Meeting. The Company shall, as soon as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") for the purpose of considering, as seven six separate proposals, : (ia) the adoption of this Agreement; (iib) the approval of an amendment to the Company's Restated Certificate of Incorporation implementing a classified Board (the "Classified Board Proposal"); (c) the approval of an amendment to the Company's Restated Certificate of Incorporation placing limits on the size of the Company Company's board and requiring, subject to eliminate certain limitations, that board vacancies and newly created directorships be filled only by remaining board members (the "Board Size Proposal"); (d) the approval of an amendment to the Company's Restated Certificate of Incorporation eliminating the ability of stockholders to act by written consent (the "Written Consent Proposal"); (iiie) the approval of an amendment to the Company's Restated Certificate of Incorporation of the Company to divide the Board of Directors into three Term of Office Classes (the "Staggered Board Proposal"); (iv) the approval of an amendment to the Restated Certificate of Incorporation of the Company eliminating the ability of the Surviving Corporation's stockholders to call a special meeting of the stockholders (the "Special Meeting Proposal"); and (vf) the approval of an amendment to the Company's Restated Certificate of Incorporation of the Company requiring a supermajority vote of the Company's stockholders entitled to vote thereon to amend certain provisions of the Surviving Corporation's Corporation By-Laws by stockholder action or to amend the Surviving Corporation Certificate of Incorporation (the "Supermajority Voting Proposal") in a manner that would affect matters covered by the Classified Board Proposal, the Board Size Proposal, the Written Consent Proposal, the Special Meeting Proposal or the Supermajority Voting Proposal if adopted, all as set forth in Exhibit A-1(a) hereto (collectively, the "Governance Amendments"), (vi) the ratification of the adoption of a stockholder rights plan to become effective solely upon the consummation effectiveness of the Distribution (the "Stockholder Rights Plan Proposal") Merger. The Company shall, through its Board of Directors, recommend to its stockholders adoption of this Agreement and (vii) the approval of an amendment to the Restated Certificate of Incorporation of the Company increasing the authorized capital stock of the Company (the "Authorized Capital Increase Proposal"). The Special Committee and the Board of Directors of the Company shall recommend to the stockholders of the Company that the stockholders adopt this Agreement and approve each of the Governance Proposals Amendments and the Stockholder Rights Proposal. The Special Committee and the Board of Directors of the Company shall not withdraw withdraw, change or modify such recommendation; provided, however, that the Special Committee or the Company's Board of Directors may withdraw, change or modify such recommendation if it determines reasonably and in good faith faith, after consultation with outside counsel, that it would be inconsistent with the Special Committee or the Board of Directors will violate its Board's fiduciary duties to the stockholders of the Company by not withdrawingto withdraw, changing change or modifying modify such recommendationsrecommendation.