Common use of California Permit; Fairness Hearing Clause in Contracts

California Permit; Fairness Hearing. Promptly after the execution of this Agreement, the Company and Parent shall prepare and cause to be filed with the California Commissioner of Corporations (the “California Commissioner”) a permit application under Section 25121 of the California Corporations Code, and a related information statement or other disclosure document (the “Permit Application”), and shall request a hearing (the “Fairness Hearing”) on the fairness of the terms and conditions of the Merger pursuant to Section 25142 of the California Corporations Code. The parties to this Agreement shall use all commercially reasonable efforts to cause the California Commissioner to approve the fairness of the terms and conditions of the Merger at such a Fairness Hearing (the “Fairness Approval”); provided, however, that neither party shall be required to modify any of the terms of the Merger in order to cause the California Commissioner to approve the fairness of such terms and conditions. The Company shall provide and include in the Permit Application such information relating to the Company as may be required pursuant to the rules of the California Commissioner. Each of Parent and the Company shall (i) notify the other promptly of the receipt of any comments from the California Commissioner and of any request by the California Commissioner for amendments or supplements to the Permit Application or for additional information, and (ii) shall supply the other with copies of all correspondence with the California Commissioner with respect to the Permit Application. Neither Parent nor the Company shall file any amendment or supplement to the Permit Application to which the other shall have reasonably objected. Whenever any event occurs that should be set forth in an amendment or supplement to the Permit Application, Parent or the Company, as the case may be, shall promptly inform the other of such occurrence and shall cooperate in filing with the California Commissioner or its staff, and, if appropriate, mailing to the stockholders of the Company entitled to vote on the transactions contemplated by this Agreement, such amendment or supplement.

California Permit; Fairness Hearing. Promptly after Parent and the Company shall use their commercially reasonable efforts to file, within seven (7) Business Days following the execution of this Agreement, the Company all necessary documents, and Parent shall prepare and cause use its commercially reasonable efforts to be filed with apply to obtain a permit (a “California Permit”) from the California Commissioner of Corporations of the State of California (after a hearing before such Commissioner) pursuant to Sections 25121 and 25142 of the California Corporate Securities Law of 1968 (the “California CommissionerFairness Hearing Law”), so that the issuance of Parent Common Stock in the Merger shall be exempt from registration under the Securities Act, pursuant to the exemption provided by Section 3(a)(10) a permit application under Section 25121 of the California Corporations Codethereof, and the Company shall prepare, with the cooperation of Parent, a related information statement or other disclosure document (the “Information Statement”) for filing with the California Permit Application”)application. The Company shall cooperate with, and shall request a hearing (the “Fairness Hearing”) on the fairness of the terms and conditions of the Merger pursuant to Section 25142 of provide information to, Parent in connection with Parent’s application for the California Corporations CodePermit. The parties Company and Parent will respond to this Agreement shall any comments from the California Department of Corporations and work together in good faith and use all their commercially reasonable efforts to cause have the California Commissioner to approve the fairness of the terms and conditions of the Merger at Permit granted as soon as practicable after such a Fairness Hearing (the “Fairness Approval”)filing; provided, however, that neither no party shall be required to modify any of the terms of this Agreement or the Merger Merger, or the transactions contemplated hereby or thereby, in order to cause obtain the California Commissioner to approve the fairness of such terms and conditions. The Company shall provide and include in the Permit Application such information relating to the Company as may be required pursuant to the rules of the California CommissionerPermit. Each of Parent and the Company shall (i) notify agrees to provide promptly to the other promptly such information concerning its business and financial statements and affairs as, in the reasonable judgment of Parent or its counsel, may be required or appropriate under the receipt of Fairness Hearing Law and applicable securities Laws for inclusion in the Information Statement, or in any comments from the California Commissioner and of any request by the California Commissioner for amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other’s counsel and auditors in preparation of the Information Statement. Anything to the Permit Application or for additional informationcontrary contained herein notwithstanding, and (ii) the Company shall supply not include in the other with copies of all correspondence with the California Commissioner Information Statement any information with respect to Parent or its Affiliates, the Permit Applicationform and content of which shall not have been approved by Parent prior to such inclusion. Neither As promptly as practical after the date of this Agreement, Parent nor and the Company shall file any amendment or supplement prepare and make such filings as are required under applicable blue sky laws relating to the Permit Application to which the other shall have reasonably objected. Whenever any event occurs that should be set forth in an amendment or supplement to the Permit Application, Parent or the Company, as the case may be, shall promptly inform the other of such occurrence and shall cooperate in filing with the California Commissioner or its staff, and, if appropriate, mailing to the stockholders of the Company entitled to vote on the transactions contemplated by this Agreement, such amendment or supplement. The Company shall use its commercially reasonable efforts to assist Parent as may be necessary to comply with the securities and blue sky Laws relating to the transactions contemplated by this Agreement.

California Permit; Fairness Hearing. Promptly after SumTotal shall use its commercially reasonable efforts to file as soon as practicable an application intended to satisfy the execution of this Agreement, the Company and Parent shall prepare and cause to be filed with the California Commissioner of Corporations (the “California Commissioner”) a permit application under Section 25121 requirements of the California Corporations Code, Code with the California Department of Corporations and a related information statement or other disclosure document (the “Permit Application”), and shall request a hearing (be held as soon as practicable to apply to obtain a California Permit from the “Fairness Hearing”) on the fairness Commissioner of Corporations of the terms and conditions State of California so that the issuance of SumTotal Common Stock in the First Merger shall be exempt from registration under the Securities Act, pursuant to the exemption provided by Section 25142 3(a)(10) thereof. Each of SumTotal, Merger Sub and Pathlore shall cooperate with each other in the preparation and submission of any and all documents and materials required by the California Department of Corporations Codein connection therewith. The parties Each of SumTotal and Pathlore shall be solely responsible for any statement, information or omission in such materials relating to this Agreement shall it or its affiliates based upon written information furnished by it. Pathlore and SumTotal will respond to any comments from the California Department of Corporations and work together in good faith and use all commercially reasonable efforts to cause have the California Commissioner to approve the fairness of the terms and conditions of the Merger at Permit granted as soon as practicable after such a Fairness Hearing (the “Fairness Approval”)filing; provided, however, that neither no party shall be required to modify any of the terms of this Agreement or the Merger Mergers, or the transactions contemplated hereby, in order to cause obtain the California Commissioner Permit. Additionally, Pathlore shall prepare for filing with the California Permit application, with the cooperation of SumTotal, a related information statement or other disclosure document for the offer and issuance of the shares of SumTotal Common Stock to approve be received by the fairness holders of such terms and conditions. The Company shall provide and include Pathlore Common Stock in the Permit Application such information relating to First Merger (the Company as may be required pursuant to the rules of the California Commissioner“Information Statement”). Each of Parent and the Company SumTotal shall (i) notify the other Pathlore promptly of upon the receipt of any comments from the California Commissioner Department of Corporations or its staff or any other governmental officials and of any request by the California Commissioner Department of Corporations or its staff or any other governmental officials for amendments or supplements to the application for the California Permit Application or any filing pursuant to Section 5.10 or for additional information, information and (ii) shall supply the other Pathlore with copies of all such correspondence. SumTotal shall provide Pathlore with a reasonable opportunity to review and comment on any and all correspondence with between SumTotal or any of its representatives, on the one hand, and the California Commissioner Department of Corporations or its staff or any other governmental officials, on the other hand, with respect to the application for the California Permit Applicationor any filing pursuant to Section 5.10 before such correspondence is submitted and will provide Pathlore with copies of any such correspondence. Neither Parent nor Each party shall if practicable consult with the Company other party prior to contacting the California Department of Corporations regarding the Mergers to provide the other party with a reasonable opportunity to consult on the substance of such communications. SumTotal shall file use all reasonable efforts to cause all documents it is responsible for filing with the California Department of Corporations or other regulatory authorities under this Section 5.2 to comply in all material respects with all applicable requirements of law and the rules and regulations promulgated thereunder. SumTotal shall provide Pathlore with a reasonable opportunity to review and comment on any amendment or supplement to the application for the California Permit Application prior to which the other shall have reasonably objected. Whenever any event occurs that should be set forth in an amendment or supplement to the Permit Application, Parent or the Company, as the case may be, shall promptly inform the other of filing such occurrence and shall cooperate in filing with the California Commissioner Department of Corporations, and will provide a copy of all filings made with the California Department of Corporations. Each of SumTotal and Pathlore agrees to provide promptly to the other such information concerning its business and financial statements and affairs as, in its respective reasonable judgment or the reasonable judgment of its respective counsel, may be required or appropriate under the Fairness Hearing Law and applicable Laws for inclusion in the Information Statement or in the application for the California Permit, or in any amendments or supplements to either of them, and to cause its respective counsel and auditors to cooperate with the other’s counsel and auditors in preparation of the Information Statement (with respective auditors providing consent if necessary). Anything to the contrary contained herein notwithstanding, neither Pathlore nor SumTotal shall include in the application for the California Permit or the Information Statement any information with respect to the other or its staffaffiliates, andthe form and content of which shall not have been approved by such other party prior to such inclusion. As promptly as practical after the date of this Agreement, if appropriate, mailing SumTotal shall prepare and make such filings as are required under applicable blue sky laws relating to the stockholders of the Company entitled to vote on the transactions contemplated by this Agreement, such amendment or supplement. Pathlore shall use its reasonable efforts to assist SumTotal as may be necessary to comply with the securities and blue sky Laws relating to the transactions contemplated by this Agreement.

California Permit; Fairness Hearing. Promptly after Parent and the Company shall use their commercially reasonable efforts to file, subject to the availability of all necessary information, by the later to occur of (x) seven (7) Business Days following the execution of this AgreementAgreement and (y) three (3) Business Days following the filing of Parent’s Form 10-K with the SEC for the fiscal year ended December 31, the Company 2006, all necessary documents, and Parent shall prepare and cause use its commercially reasonable efforts to be filed with apply to obtain a permit (a “California Permit”) from the California Commissioner of Corporations of the State of California (after a hearing before such Commissioner) pursuant to Sections 25121 and 25142 of the California Corporate Securities Law of 1968 (the “California CommissionerFairness Hearing Law”), so that the issuance of Parent Common Stock in the Merger shall be exempt from registration under the Securities Act, pursuant to the exemption provided by Section 3(a)(10) a permit application under Section 25121 of the California Corporations Codethereof, and the Company shall prepare, with the cooperation of Parent, a related information statement or other disclosure document (the “Information Statement”) for filing with the California Permit Application”)application. The Company shall cooperate with, and shall request a hearing (the “Fairness Hearing”) on the fairness of the terms and conditions of the Merger pursuant to Section 25142 of provide information to, Parent in connection with Parent’s application for the California Corporations CodePermit. The parties Company and Parent will respond to this Agreement shall any comments from the California Department of Corporations and work together in good faith and use all their commercially reasonable efforts to cause have the California Commissioner to approve the fairness of the terms and conditions of the Merger at Permit granted as soon as practicable after such a Fairness Hearing (the “Fairness Approval”)filing; provided, however, that neither no party shall be required to modify any of the terms of this Agreement or the Merger Merger, or the transactions contemplated hereby or thereby, in order to cause obtain the California Commissioner to approve the fairness of such terms and conditions. The Company shall provide and include in the Permit Application such information relating to the Company as may be required pursuant to the rules of the California CommissionerPermit. Each of Parent and the Company shall (i) notify agrees to provide promptly to the other promptly such information concerning its business and financial statements and affairs as, in the reasonable judgment of Parent or its counsel, may be required or appropriate under the receipt of Fairness Hearing Law and applicable securities Laws for inclusion in the Information Statement, or in any comments from the California Commissioner and of any request by the California Commissioner for amendments or supplements thereto, and to cause its counsel and auditors to cooperate with the other’s counsel and auditors in preparation of the Information Statement. Anything to the Permit Application or for additional informationcontrary contained herein notwithstanding, and (ii) the Company shall supply not include in the other with copies of all correspondence with the California Commissioner Information Statement any information with respect to Parent or its Affiliates, the Permit Applicationform and content of which shall not have been approved by Parent prior to such inclusion. Neither As promptly as practical after the date of this Agreement, Parent nor and the Company shall file any amendment or supplement prepare and make such filings as are required under applicable blue sky laws relating to the Permit Application to which the other shall have reasonably objected. Whenever any event occurs that should be set forth in an amendment or supplement to the Permit Application, Parent or the Company, as the case may be, shall promptly inform the other of such occurrence and shall cooperate in filing with the California Commissioner or its staff, and, if appropriate, mailing to the stockholders of the Company entitled to vote on the transactions contemplated by this Agreement, such amendment or supplement. The Company shall use its commercially reasonable efforts to assist Parent as may be necessary to comply with the securities and blue sky Laws relating to the transactions contemplated by this Agreement.