Common use of Stockholder Meeting; Proxy Material Clause in Contracts

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the Company shall cause the Company Stockholder Meeting to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and (ii) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreement.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall cause a meeting of its stockholders (the Company Stockholder Meeting "COMPANY STOCKHOLDER MEETING") to be duly called and held as soon as reasonably practicable following the clearance of the Company Proxy Statement by the SEC for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote Merger. The Board of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, provided that the Board of Directors of the Company shall be permitted may elect not to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) make, may withdraw or may modify in a manner adverse to Buyer and Merger Subsidiary Parent such recommendation (including, without limitation, by approving, recommending or endorsing a Superior Proposal) if the Board of Directors of the Company determines in good faith after considering advice from outside counsel, that such action is required to comply with its fiduciary duties under law. Unless the Board of Directors of the Company has withdrawn or modified its recommendation to the Company's stockholders that they give in compliance with this Agreement, the Company Stockholder Approvalshall use its reasonable efforts to solicit from its stockholders proxies in favor of the approval and adoption of this Agreement and the Merger. In connection with such meeting, but in each of cases the Company shall (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially its reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and meeting, (ii) unless, subject to (A) the extent permitted by proviso to the second sentence of this Section 5.02, 6.02 and subject to (B) Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation6.03(b), use commercially its reasonable efforts to solicit proxies in favor of obtain the approval necessary approvals by its stockholders of this Agreement and the MergerMerger (the "COMPANY STOCKHOLDER APPROVAL") and (iii) otherwise comply with all legal requirements applicable to such meeting, provided that including establishing a record date (which date shall be as soon as practicable following the obligation date of the SEC's clearance of the Company Proxy Statement). No amendment to cause the Company Proxy Statement and the proxy to shall be mailed to the Company's stockholders is subject to the Board of Directors of made by the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after without consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this AgreementParent.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the (a) The Company shall cause (i) take all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders (the “Company Stockholder Meeting to be duly called and held as soon as reasonably practicable Meeting”) for the purpose of voting on having this Agreement adopted by the approval and stockholders of the Company in accordance with applicable Law as promptly as reasonably practicable after the SEC clears the Company Proxy Statement, (ii) use commercially reasonable efforts to solicit the adoption of this Agreement by the stockholders of the Company, and (iii) subject to the Merger unless a vote immediately succeeding sentence, include in the Company Proxy Statement the recommendation of the Board of Directors of the Company that the stockholders of the Company is not required by New York Lawadopt this Agreement (the “Recommendation”). Subject to the provisions The Board of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and not directly or indirectly (A) withdraw (or modify or qualify in a manner adverse to Parent or Merger Sub), or publicly propose to withdraw (or modify or qualify in a manner adverse to Parent or Merger Sub), the Merger by the Company's stockholders at Recommendation or (B) take any other action or make any other public statement in connection with the Company Stockholder Meeting, and will include Meeting inconsistent with such recommendation Recommendation (any action described in the Company Proxy Statementthis clause (A) or (B) being referred to as a “Recommendation Withdrawal”); provided, however, that, consistent with its fiduciary duties set forth in Section 5.04that at any time prior to obtaining the Requisite Stockholder Vote, the Board of Directors of the Company (following the recommendation of the Special Committee if such committee still exists) may effect a Recommendation Withdrawal (subject to the Company having complied with its obligations under Section 7.4) if such Board of Directors (following the recommendation of the Special Committee, if such committee still exists) determines in good faith (after consultation with outside counsel) that failure to take such action could violate its fiduciary duties under applicable Law. Notwithstanding any Recommendation Withdrawal, unless this Agreement is terminated pursuant to and in accordance with Section 9.1, this Agreement shall be permitted submitted to (i) not recommend the stockholders of the Company at the Company Stockholders Meeting for the purpose of adopting this Agreement. If, at any time prior to the Effective Time, any information relating to the Company's stockholders that they give , Parent or Merger Sub or any of their respective Affiliates should be discovered by the Company, Parent or Merger Sub which should be set forth in an amendment or supplement to the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders Proxy Statement, so that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other proxy materials for such Company Stockholder Meeting and (ii) unlessparties and, to the extent permitted required by the second sentence of this Section 5.02, and subject to Section 5.04applicable Law, the Board of Directors Company shall not recommend disseminate an appropriate amendment thereof or supplement thereto describing such information to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreement’s stockholders.

Stockholder Meeting; Proxy Material. Subject (a) If following the Acceptance Time and, to the provisions of Section 5.04extent applicable, any Subsequent Offering Period, the Short Form Threshold has not been reached, the Company shall cause prepare a proxy statement or information statement for the Company Stockholder Meeting (together with any amendments and supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote of and this Agreement, with the intention that the Proxy Statement be filed with the SEC and, after clearance from the SEC, printed and mailed to the stockholders of the Company is not required by New York Law. Subject as promptly as practicable following the Acceptance Time and, to the provisions of Section 5.04extent applicable, any Subsequent Offering Period. Parent, Merger Subsidiary and their counsel shall be given a reasonable opportunity to review and comment on the Directors of Proxy Statement before it is filed with the SEC, and the Company shall recommend approval give due consideration to any reasonable comments made by Parent, Merger Subsidiary and adoption of this Agreement their counsel. The Company shall include the Company Board Recommendation and the Merger by Fairness Opinion, together with a summary thereof in accordance with Item 1015(b) of Regulation M-A under the 1934 Act (regardless of whether such item is applicable), in the Proxy Statement. The Company's stockholders at , on the Company Stockholder Meetingone hand, and will include such recommendation Parent and Merger Subsidiary, on the other hand, agree to promptly correct any information provided by it for use in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that it shall have become (or shall have become known to be) false or misleading in any material respect or as otherwise required by Applicable Law, and the Company has complied agrees to cause the Proxy Statement, as so corrected, to be filed with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take SEC and, if any such action or inactioncorrection is made following the mailing of the Proxy Statement, mailed to holders of Shares, in each case as and to the extent required by the 1934 Act. The Company will (i) in connection shall provide Parent, Merger Subsidiary and their counsel with copies of any written comments, and shall inform them of any oral communications, that the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially reasonable efforts or its counsel may receive from time to have cleared by time from the SEC as promptly as practicable and thereafter mail to or its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and (ii) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and staff with respect to which the Proxy Statement promptly after the Company's Board ’s receipt of Directors determinessuch comments, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means and any offer written or proposal for a merger, consolidation or tender or exchange offer or other business combination involving oral responses thereto by the Company or its counsel. Parent, Merger Subsidiary and their counsel shall be given a reasonable opportunity to review and comment on any Subsidiary of such written responses and the Company or shall give due consideration to the acquisition of any substantial debt or equity interest inreasonable comments made by Parent, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this AgreementMerger Subsidiary and their counsel.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall cause a meeting of its stockholders (the Company Stockholder Meeting Meeting) to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York LawMerger. Subject to the provisions of Section 5.04, the The Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's Companys stockholders at (the Company Stockholder Meeting, Approval) and will shall include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, provided that the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's Companys stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's Companys stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Companys Board of Directors determines to take any such action or inaction. The Company will (i) in i)in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially all reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting meeting and (ii) unless, to the extent permitted by the second first sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's Companys stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable best efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's Companys stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. Xxxxxxx Xxxxx confirmation of its opinion referred to in Section 3.02 3.04 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" Proposal means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's Companys stockholders taken as a whole than the transactions contemplated by this the Agreement and with respect to which the Company's Companys Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" Proposal means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or any Subsidiary of any Company Subsidiarythe Company, other than the transactions contemplated by this Agreement.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall cause a meeting of its stockholders (the “Company Stockholder Meeting Meeting”) to be duly called and held as soon as reasonably practicable following the clearance of the Company Proxy Statement by the SEC for the purpose of voting on obtaining the approval Company Stockholder Approval. Without limiting the generality of the foregoing, the Company’s obligations pursuant to the preceding sentence shall not be affected by any Adverse Recommendation Change. Notwithstanding the foregoing, if the Company properly exercises its right to terminate this Agreement pursuant to and adoption in accordance with Section 10.01(d), the Company’s obligations pursuant to the first sentence of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York LawSection 6.02 shall terminate. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.046.03(b), the Board of Directors of the Company shall be permitted to recommend adoption of this Agreement by the Company’s stockholders and shall not (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval approval or adoption of any Acquisition Proposal, (ii) determine that this Agreement or the Merger is no longer advisable, (iii) withdraw or modify in a any manner adverse to Buyer and Parent or Merger Subsidiary its the recommendation to of this Agreement, the Company's Merger or any of the other transactions contemplated hereby, (iv) recommend that the stockholders that they give of the Company Stockholder Approvalreject this Agreement, but in each the Merger or any of cases the other transactions contemplated hereby or (iv) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines resolve, agree or propose publicly to take any such actions (each such action or inactionbeing referred to as an “Adverse Recommendation Change”). The Company will (i) in In connection with the Company Stockholder Meeting, the Company shall (i) promptly prepare and file with the SEC, shall use commercially its reasonable best efforts to have cleared by the SEC as promptly as practicable and shall thereafter mail to its stockholders as promptly as reasonably practicable the Company Proxy Statement and all other proxy materials for such the Company Stockholder Meeting and Meeting, (ii) unless, use its reasonable best efforts to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give obtain the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse and (iii) otherwise comply with all legal requirements applicable to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementmeeting.

Stockholder Meeting; Proxy Material. Subject to As promptly as practicable after the provisions date of Section 5.04this Agreement (and in any event within 15 Business Days after the date hereof), the Company shall file the Company Proxy Statement with the SEC in preliminary form as required by the 1934 Act, and shall use all reasonable efforts to have the Company Proxy Statement cleared by the SEC. The Company shall obtain and furnish the information required to be included in the Proxy Statement, shall provide Parent and Merger Subsidiary with any comments that may be received from the SEC or its staff with respect thereto, shall respond promptly to any such comments made by the SEC or its staff with respect to the Company Proxy Statement, and shall cause the Company Proxy Statement in definitive form to be mailed to the Company’s stockholders at the earliest practicable date. If at any time prior to obtaining the Company Stockholder Meeting Approval, any information relating to the Merger, the Company, Parent, Merger Subsidiary or any of their respective Affiliates, directors or officers should be discovered by the Company or Parent that should be set forth in an amendment or supplement to the Company Proxy Statement so that such document would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto and the Company shall promptly file with the SEC an appropriate amendment or supplement describing such information and, to the extent required by Applicable Law, disseminate such amendment or supplement to the stockholders of the Company. Notwithstanding the foregoing, prior to filing or mailing the Company Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall give Parent, Merger Subsidiary and their counsel a reasonable opportunity to review and comment on such document or response and shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Subsidiary and their counsel. The Company shall establish a record date and cause a meeting of its stockholders (the “Company Stockholder Meeting”) to be duly called and held as soon promptly as reasonably practicable after the Company Proxy Statement is cleared by the SEC for mailing to the Company’s stockholders for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote Merger. Except in the case of stockholders of the Company is not required an Adverse Recommendation Change specifically permitted by New York Law. Subject to the provisions of Section 5.046.02(b), the Board of Directors of the Company shall (i) recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting’s stockholders, and will (ii) include such recommendation in the Company Proxy StatementStatement and (iii) publicly reaffirm such recommendation to its stockholders at least two (2) Business Days prior to the Company Stockholder Meeting after a request to do so by Parent or Merger Subsidiary; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of if the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer receives an Acquisition Proposal and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent Parent requests that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal reaffirm its recommendation less than seven (as defined below7) is pending at the time the Company's Board of Directors determines Business Days prior to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file the Company shall have the right to postpone the Company Stockholder Meeting to the seventh (7th) Business Day from the date of Parent’s request to reaffirm its recommendation. An Adverse Recommendation Change made in compliance with Section 6.02(b) will not constitute a breach by the SECCompany of this Agreement. In connection with such meeting, the Company shall (i) use its commercially reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable obtain the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting Approval and (ii) unless, otherwise comply in all material respects with all legal requirements applicable to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementmeeting.

Stockholder Meeting; Proxy Material. Subject (a) If approval of the Company Stockholders is required under Delaware Law in order to consummate the provisions Merger (other than pursuant to Section 253 of Section 5.04the DGCL), the Company shall cause duly call and shall use its commercially reasonable efforts to hold a meeting of its stockholders (the “Company Stockholder Meeting to be duly called and held as soon as reasonably practicable Stockholders Meeting”) for the purpose of voting on obtaining the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at Company Stockholders required to satisfy the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties conditions set forth in Section 5.049.1(a) as promptly as practicable after the SEC clears the Proxy Materials. In connection with the Company Stockholders Meeting, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meetingas promptly as practicable, promptly prepare and file with the SECSEC the Proxy Materials to the Merger and the other transactions contemplated hereby; (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will provide copies of such comments to Parent and Purchaser promptly upon receipt; (iii) as promptly as reasonably practicable, prepare and file (after Parent and Purchaser have had a reasonable opportunity to review and comment on) any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law; (iv) use its commercially reasonable efforts to have cleared by the SEC as promptly as practicable SEC, and will thereafter mail to its stockholders as promptly as practicable reasonably practicable, the Company Proxy Statement Materials and all other customary proxy or other materials for meetings such as the Company Stockholder Meeting and Stockholders Meeting; (iiv) unless, to the extent permitted required by the second sentence of this Section 5.02applicable Law, as promptly as reasonably practicable prepare, file and subject to Section 5.04, the Board of Directors shall not recommend distribute to the Company's stockholders that they give Company Stockholders any supplement or amendment to the Proxy Materials if any event shall occur which requires such action at any time prior to the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse Stockholders Meeting; and (vi) otherwise comply with all requirements of Law applicable to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement Company Stockholders Meeting and the Merger. The Company will provide Parent and Purchaser an opportunity to review and comment upon the Proxy Materials, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having or any amendments or supplements thereto, or any SEC comments received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect thereto, prior to which filing the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation same with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this AgreementSEC.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the (a) The Company shall cause the Company Stockholder Special Meeting of its stockholders to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York LawMerger. Subject to the provisions of Section 5.04, the Directors The directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at stockholders, shall not withdraw or modify such recommendation and shall take all lawful action to solicit such approval; provided that the Board of Directors of the Company Stockholder Meetingmay fail to make or may withdraw or modify such recommendation, and will include such recommendation in but only to the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, extent that the Board of Directors of the Company shall be permitted have concluded in good faith after consultation with outside counsel that such action is required to (i) not recommend to prevent the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines of the Company from breaching its fiduciary duties to take any such action or inactionthe stockholders of the Company under applicable law. The Company will (i) in In connection with the any Company Stockholder Meeting, promptly the Company will (a) as soon as practicable prepare and file with the SEC, use commercially its reasonable best efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and meeting, (iib) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer use its recommendation, use commercially reasonable best efforts to solicit proxies in favor of obtain the approval necessary approvals by its stockholders of this Agreement and the Mergertransactions contemplated hereby, provided that and (c) otherwise comply in all material respects with the obligation requirements of the Company Exchange Act and the Securities Act, as applicable, and the rules and regulations of the SEC thereunder applicable to cause the Company Proxy Statement and the proxy solicitation of proxies for the Special Meeting (including any requirement to be mailed to amend or supplement the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement). The Proxy Statement if shall include the Board recommendation of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary favor of the Company or Merger, unless otherwise required by the acquisition of any substantial debt or equity interest in, or a substantial portion fiduciary duties of the assets of, the Company or of any Company Subsidiary, other than the transactions directors under applicable law as contemplated by this Agreementhereby.

Stockholder Meeting; Proxy Material. Subject (a) If this Agreement is required by the MBCL to be approved by the provisions of Section 5.04Company's stockholders, then the Company shall cause a meeting of its stockholders (the Company Stockholder Meeting "Stockholders' Meeting") to be duly called and held as soon as --------------------- reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote transactions contemplated hereby. The Board of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall shall, subject to the terms of Section 5.3(b), recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at stockholders. In connection with such meeting, the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, shall promptly prepare and file with the SEC, use commercially all reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and meeting, (ii) unless, shall notify Parent of the receipt of any comments of the SEC with respect to the extent permitted Proxy Statement and of any requests by the second sentence SEC for any amendment or supplement thereto or for additional information and shall provide to Parent promptly copies of this Section 5.02all correspondence between the Company or any representative of the Company and the SEC, (iii) shall give Parent and its counsel the opportunity to review the Proxy Statement prior to its being filed with the SEC and shall give Parent and its counsel the opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information and replies to comments prior to their being filed with, or sent to, the SEC, (iv) shall, subject to Section 5.04, the fiduciary duties of its Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendationas advised by counsel, use commercially all reasonable efforts to solicit proxies in favor of obtain the approval necessary approvals by its stockholders of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement hereby and (v) shall otherwise comply with respect all legal requirements applicable to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementmeeting.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall cause a meeting of its stockholders (the “Company Stockholder Meeting Meeting”) to be duly called and held as soon as reasonably practicable for to allow the purpose of voting Company stockholders to vote on the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York LawMerger. Subject to the provisions of Section 5.046.03, the Special Committee and Board of Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's ’s stockholders and the Company Proxy Statement shall include such recommendation. Notwithstanding anything to the contrary contained herein, unless this Agreement is theretofore terminated in accordance with Section 10.01, the Company shall submit this Agreement to its stockholders for adoption at the Company Stockholder Meeting. In connection with such meeting, the Company shall (i) (A) promptly, in consultation with Parent, prepare and file the Company Proxy Statement with the SEC, (B) notify Parent promptly following the receipt of any comments from the SEC and of any request by the SEC for amendments or supplements to the Company Proxy Statement or for any additional information and shall consult with Parent regarding, and will include such recommendation in supply Parent with copies of, all correspondence between the Company or any of its representatives, on the one hand, and the SEC, on the other hand, with respect to the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth (C) as promptly as practicable after comments are received from the SEC in Section 5.04, the Board of Directors respect of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify Proxy Statement, in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approvalconsultation with Parent, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, SEC any required amendments to the Company Proxy Statement and (D) use commercially its reasonable best efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other related proxy materials for such Company Stockholder Meeting and such, (ii) unless, use its reasonable best efforts to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give obtain the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse and (iii) otherwise comply with all legal requirements applicable to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this AgreementStockholder Meeting.

Stockholder Meeting; Proxy Material. Subject (a) Each of the Company and Parent shall cooperate with each other in the preparation of the proxy statement (including the letter to shareholders, notice of meeting and form of proxy, the “Proxy Statement”) (including the preliminary Proxy Statement) and any amendment or supplement to the provisions of Section 5.04, preliminary Proxy Statement. As promptly as practicable the Company shall cause prepare and file with the Company Stockholder Meeting to be duly called SEC and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless CSC a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company preliminary Proxy Statement; provided, however, thatthat the Company shall furnish such preliminary Proxy Statement to Parent and give Parent and its legal counsel a reasonable opportunity to review such preliminary Proxy Statement prior to filing with the SEC and shall accept all reasonable additions, consistent deletions or changes suggested by Parent in connection therewith. The Company shall notify Parent of the receipt of any comments of the SEC staff with respect to the preliminary Proxy Statement and of any requests by the SEC for any amendment or supplement thereto or for additional information and shall provide to Parent, as promptly as reasonably practicable, copies of all written correspondence between the Company or any representative of the Company and the SEC with respect to the Proxy Statement. If comments are received from the SEC staff with respect to the preliminary Proxy Statement, the Company shall respond as promptly as reasonably practicable to the com- ments of the SEC. The Company shall provide Parent and its fiduciary duties set forth legal counsel with a reasonable opportunity to review any amendment or supplement to each of the preliminary and the definitive Proxy Statement prior to filing with the SEC and shall accept all reasonable additions, deletions or changes suggested by Parent in Section 5.04connection therewith. Parent shall promptly provide the Company with such information as may be required to be included in the Proxy Statement or as may be reasonably required to respond to any comment of the SEC staff. After all the comments received from the SEC have been cleared by the SEC staff and all information required to be contained in the Proxy Statement has been included therein by the Company, the Company shall file the definitive Proxy Statement with the SEC and CSC and cause the Proxy Statement to be mailed (including by electronic delivery if permitted) as promptly as reasonably practicable, to its holders of record, as of the record date established by the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and (ii) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreement.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall cause a meeting of its stockholders (the Company Stockholder Meeting "COMPANY STOCKHOLDER MEETING") to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York LawMerger. Subject to the provisions of Section 5.047.3(b), the Board of Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meetingstockholders. In connection with such meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend promptly provide Parent with the information relating to the Company and Company Bank that is required to be included in the Registration Statement (including, without limitation all financial information relating to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse ), use its reasonable best efforts to Buyer and Merger Subsidiary its recommendation to cause the Company's stockholders that they give independent registered public accounting firm to provide any consents necessary for the Company Stockholder Approvalfiling of the Registration Statement, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable after the effectiveness of the Registration Statement the Company Proxy Statement (which shall be filed as part of the Registration Statement and will include Parent's prospectus) and all other proxy materials for such the Company Stockholder Meeting and Meeting, (ii) unless, use its best efforts to obtain the extent permitted necessary approvals by the second sentence its stockholders of this Section 5.02Agreement, the Merger and the transactions contemplated hereby, subject to Section 5.047.3(b) and (iii) otherwise comply with all legal requirements applicable to the Company Stockholder Meeting. Unless this Agreement has been terminated in accordance with the terms of Article 11, this Agreement and the Board of Directors Merger shall not recommend be submitted to the Company's stockholders that they give at the Company Stockholder Approval Meeting whether or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that not the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by at any time that this Agreement or the Merger is no longer advisable and with respect to which recommends that the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary stockholders of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementreject it.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the (a) The Company shall cause duly call and shall use its commercially reasonable efforts to hold a meeting of its stockholders (the Company Stockholder Meeting to be duly called and held as soon as reasonably practicable “Stockholders’ Meeting”) for the purpose of voting on obtaining the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's Company stockholders at required to satisfy the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties conditions set forth in Section 5.048.1(a) as promptly as practicable following the date of this Agreement. In connection with the Stockholders’ Meeting, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with as promptly as practicable following the Company Stockholder Meetingdate of this Agreement, promptly prepare and file with the SECSEC the Proxy Materials to the Merger and the other transactions contemplated hereby; (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will provide copies of such comments to Parent and Merger Sub promptly upon receipt; (iii) as promptly as reasonably practicable, prepare and file (after Parent and Merger Sub have had a reasonable opportunity to review and comment on) any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law; (iv) use its commercially reasonable efforts to have cleared by the SEC as promptly as practicable SEC, and will thereafter mail to its stockholders as promptly as practicable reasonably practicable, the Company Proxy Statement Materials and all other customary proxy or other materials for meetings such Company Stockholder Meeting and as the Stockholders’ Meeting; (iiv) unless, to the extent permitted required by the second sentence of this Section 5.02applicable Law, as promptly as reasonably practicable prepare, file and subject to Section 5.04, the Board of Directors shall not recommend distribute to the Company's Company stockholders that they give any supplement or amendment to the Company Stockholder Approval or Proxy Materials if any event shall have withdrawn or modified in a manner adverse occur which requires such action at any time prior to Buyer its recommendation, use commercially reasonable efforts the Stockholders’ Meeting; and (vi) otherwise comply with all requirements of Law applicable to solicit proxies in favor of the approval of this Agreement Stockholders’ Meeting and the Merger. The Company will provide Parent and Merger Sub an opportunity to review and comment upon the Proxy Materials, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having or any amendments or supplements thereto, or any SEC comments received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect thereto, prior to which filing the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation same with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this AgreementSEC.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the 4.3.1 The Company shall cause a meeting of its stockholders (the “Company Stockholder Meeting Meeting”) to be duly called and held as soon as reasonably practicable following the date of this Agreement (but in any event, no later than sixty (60) days after the date that the Company Proxy Statement is mailed to the Company stockholders) for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote of stockholders of obtaining the Company is not required by New York LawStockholder Approval. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04any Adverse Recommendation Change, the Board of Directors of the Company and Special Committee of the Company shall be permitted to (i) not each recommend to the Company's stockholders that they give approval of the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give ’s stockholders, and the Company Stockholder Approval, but in each of cases (i) and (ii) only if and Proxy Statement shall include a statement to the extent effect that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The of the Company will (i) and the Special Committee of the Company have recommended that the Company’s stockholders vote in connection with factor of the adoption of this Agreement at the Company Stockholder Meeting. In connection with such meeting, the Company (i) shall promptly prepare and file with the Securities and Exchange Commission (the “SEC”), and in any event within fifteen (15) days after the date of this Agreement, and shall use commercially its reasonable efforts to have cleared by the SEC as promptly as practicable and shall thereafter mail to its stockholders as promptly as practicable practicable, the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and meeting, (ii) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer use its recommendation, use commercially reasonable efforts to solicit proxies in favor of obtain the approval of this Agreement and the Merger, provided that the obligation necessary approvals by its stockholders of the Company Stockholder Approval, and (iii) shall otherwise comply with all Laws applicable to cause such meeting. The Company shall provide the Holder with a copy of the preliminary proxy statement and all modifications and amendments thereto, and shall consult with and provide the Holder with a reasonable opportunity to review and comment thereon, prior to filing or delivery to the SEC. The Company shall consider in good faith any and all comments received from the Holder with respect to the preliminary proxy statement and all modification and amendments thereto for inclusion in such preliminary proxy statement, modification or amendment. The Company shall notify the Holder promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Company Proxy Statement or for additional information and shall supply the Holder with copies of all material correspondence between the Company or any of its Representatives, on the one hand, and the proxy SEC or its staff, on the other hand, with respect to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if or the Board of Directors requests Transactions, and shall consult with the Holder prior to responding to any such a confirmationcomments or requests. For purposes of this Agreement, "Superior Proposal" means If at any bona fide Acquisition Proposal, on terms that the Board of Directors of time prior to the Company determines Stockholder Meeting there shall occur any event that should be set forth in its reasonable good faith judgment are more favorable an amendment or supplement to the Company's Company Proxy Statement, the Company shall promptly prepare and mail to its stockholders taken as a whole than the transactions contemplated by this Agreement and with respect such an amendment or supplement. The Company shall not mail any Company Proxy Statement, or any amendment or supplement thereto, to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this AgreementHolder reasonably and timely objects.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04Unless and until this Agreement is terminated in accordance with Article 10, the Company shall cause a meeting of its stockholders (the “Company Stockholder Meeting Meeting”) to be duly called and held as soon as reasonably practicable for the purpose of voting on obtaining the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04Stockholder Vote, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, even if the Board of Directors of the Company or the Special Committee determines at any time after the date of this Agreement that this Agreement is no longer advisable or recommends that the stockholders of the Company vote against its adoption. Subject to the last sentence of Section 6.3(b), the Company Proxy Statement shall be permitted to (i) not recommend include disclosure of the approval and declaration of advisability by the Board of Directors of the Company of this Agreement and the Merger and the recommendation of the Board of Directors of the Company and the Special Committee to the Company's ’s stockholders that they give vote in favor of the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each adoption of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inactionAgreement. The Company will (i) in In connection with the Company Stockholder Meeting, the Company will (i) promptly prepare and file with the SEC, use commercially its reasonable best efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and meeting, (ii) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's solicit from its stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval adoption of this Agreement and use its reasonable best efforts to obtain the Merger, provided necessary adoption by its stockholders of this Agreement (it is understood and agreed that the obligation withdrawal or modification of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to recommendation of the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation and the Special Committee in accordance with the second sentence of its opinion referred this Section 6.2 and the provisions of Section 6.3(b) shall not be a violation this clause (ii)) and (iii) otherwise comply with all legal requirements applicable to in Section 3.02 as of the date scheduled for mailing of Company Stockholder Meeting. The Company shall permit Parent and Merger Subsidiary and their counsel to review and provide comments to the Company Proxy Statement if before it is filed with the Board of Directors requests SEC. The Company will incorporate any such a confirmationcomments that are reasonable into the Company Proxy Statement. For purposes of this AgreementIn addition, "Superior Proposal" means the Company shall provide Parent and Merger Subsidiary and their counsel any bona fide Acquisition Proposalcomments or other communications, on terms whether written or oral, that the Board of Directors of Company may receive from time to time from the Company determines in SEC or its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and staff with respect to which the Company Proxy Statement promptly after the receipt of such comments or other communications and shall give Parent and Merger Subsidiary and their counsel a reasonable opportunity to review and suggest responses to such comments or other communications. After the Company Stockholder Meeting has been duly noticed by the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer it will not adjourn or proposal for a merger, consolidation or tender or exchange offer or other business combination involving postpone the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, Stockholder Meeting (other than an adjournment for lack of a quorum) without the transactions contemplated by this Agreementprior written consent of Parent.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the (a) The Company shall cause duly call and hold a meeting of its shareholders (the Company Stockholder Meeting to be duly called and held as soon as reasonably practicable "COMPANY SHAREHOLDER MEETING") for the purpose of voting on obtaining the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at Company shareholders in accordance with applicable Law as promptly as reasonably practicable after the Company Stockholder Meeting, and will include such recommendation in SEC clears the Company Proxy Statement; provided, however, that, consistent Statement and the Schedule 13E-3. In connection with its fiduciary duties set forth in Section 5.04the Company Shareholder Meeting, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, as promptly as reasonably practicable prepare and file with the SECSEC the Company Proxy Statement relating to the Merger and the other transactions contemplated hereby, (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will provide copies of such comments to Parent and Merger Sub promptly upon receipt, (iii) as promptly as reasonably practicable prepare and file (after Parent and Merger Sub have had a reasonable opportunity to review and comment on) any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law, (iv) use commercially its reasonable best efforts to have cleared by the SEC as promptly as practicable and will thereafter mail to its stockholders shareholders as promptly as practicable reasonably practicable, the Company Proxy Statement and all other customary proxy or other materials for meetings such as the Company Stockholder Meeting and Shareholder Meeting, (iiv) unless, to the extent permitted required by applicable Law, as promptly as reasonably practicable prepare, file and distribute to the second sentence Company shareholders (in the case of this Section 5.02the Company Proxy Statement) any supplement or amendment to the Company Proxy Statement if any event shall occur which requires such action at any time prior to the Company Shareholder Meeting, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, (vi) otherwise use commercially reasonable efforts to solicit proxies in favor comply with all requirements of Law applicable to the approval of this Agreement Company Shareholder Meeting and the Merger, provided that . Parent and Merger Sub shall cooperate with the obligation Company in connection with the preparation and filing of the Company Proxy Statement, including furnishing the Company upon request with any and all information as may be required to cause be set forth in the Company Proxy Statement under the Exchange Act. The Company will provide Parent and the proxy Merger Sub a reasonable opportunity to be mailed to the Company's stockholders is subject to the Board of Directors of review and comment upon the Company having received from Jefferies & Co.Proxy Statement, Inc. confirmation of its opinion referred or any amendments or supplements thereto, prior to in Section 3.02 as of filing the date scheduled for mailing same with the SEC. In connection with the filing of the Company Proxy Statement if Statement, the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that Company and Parent and Merger Sub will cooperate to (i) concurrently with the Board of Directors preparation and filing of the Company determines in its reasonable good faith judgment are more favorable Proxy Statement, jointly prepare and file with the SEC the Schedule 13E-3 relating to the Company's stockholders taken as a whole than Merger and the other transactions contemplated by this Agreement hereby and furnish to each other all information concerning such party as may be reasonably requested in connection with the preparation of the Schedule 13E-3, (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to which such filings and will consult with each other prior to providing such response, (iii) as promptly as reasonable practicable after consulting with each other, prepare and file any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law, (iv) to have cleared by the Company's Board of Directors determinesSEC the Schedule 13E-3 and (v) to the extent required by applicable Law, in its reasonable good faith judgmentas promptly as reasonably practicable prepare, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means file and distribute to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company stockholders any supplement or amendment to the Schedule 13E-3 if any Subsidiary of event shall occur which requires such action at any time prior to the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this AgreementStockholders Meeting.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall ----------------------------------- cause a meeting of its stockholders (the "Company Stockholder Meeting Meeting") to be duly called and held as soon as reasonably practicable for the purpose of voting on obtaining the stockholder approval required to satisfy the closing condition set forth in Section 11(b)(i) of this Agreement. Subject to the fiduciary obligations of the Company's directors under applicable Delaware law, the Company Proxy Statement (as defined in Section 10(d)) shall indicate the approval and adoption by the Board of Directors of the transactions contemplated by this Agreement and the Merger unless a vote recommendation of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give vote in favor of the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to approval of the Company's stockholders that they give transactions contemplated by this Agreement. In connection with such meeting, the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SECSEC (as defined in Section 10(d)), use commercially reasonable its best efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and meeting, (ii) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's solicit from its stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement the transactions contemplated hereby and use its best efforts to obtain the Mergernecessary approvals by its stockholders of the transactions contemplated hereby and (iii) otherwise comply with all legal requirements applicable to such meeting. The Company, provided that Viacom and ePresence shall cooperate with each other in the obligation preparation of the Company Proxy Statement, including, without limitation, as follows: (1) Viacom and ePresence shall furnish to cause the Company information reasonably required in connection with the Company Proxy Statement; and (2) the Company shall permit Viacom and ePresence to review all drafts of the Company Proxy Statement and the proxy any related materials prior to be mailed distribution to the Company's stockholders is subject to the Board of Directors of third parties or filing thereof, and the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred shall provide copies thereof to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests Viacom and ePresence reasonably prior to any such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer distribution or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementfiling.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall either (a) cause a meeting of its Stockholders (the "Company Stockholder Meeting Meeting") to be duly called and held as soon as reasonably practicable for the purpose purposes of voting on the approval approving and adoption of adopting this Agreement and the Merger unless and the conversion of all outstanding shares of Company Preferred Stock into Company Common Stock (the "Preferred Stock Conversion"); or (b) request the Stockholders to consent in writing without a vote meeting pursuant to Section 228 of stockholders of Delaware Law (the "Company is not required by New York Law. Subject Stockholder Consent") to the provisions Merger, this Agreement and the Preferred Stock Conversion, in either case as soon as reasonably practicable, and in no event more than 20 days following the date of Section 5.04, the this Agreement. The Board of Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at Stockholders and approval of the Company Stockholder Meeting, and will include such recommendation in Preferred Stock Conversion by the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors holders of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inactionPreferred Stock. The Company will (i) in In connection with the Company Stockholder Meeting, the Company will (i) promptly prepare and file with the SEC, use commercially reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders the Stockholders as promptly as practicable practicable, and in no event more than 5 days following the Company Proxy Statement date of this Agreement, a proxy statement and all other proxy materials for such Company Stockholder Meeting meeting ("Proxy Materials"), which materials must be submitted for review and comments by Parent not less than 2 days prior to mailing, (ii) unless, use its best efforts to obtain the extent permitted necessary approvals by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes Stockholders of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement hereby and the Preferred Stock Conversion, and (iii) otherwise comply with respect all legal requirements applicable to which such meeting. In connection with the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisorsCompany Stockholder Consent, the Person making such Acquisition Proposal has Company will (i) promptly prepare resolutions and related materials (the financial means to consummate such Acquisition Proposal. For purposes "Consent Solicitation Materials") and submit them for review and comments by Parent no more than 4 days following the date of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger(ii) use its best efforts to obtain the necessary consents by the Stockholders approving this Agreement, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementhereby and the Preferred Stock Conversion and (iii) otherwise comply with all legal requirements applicable to such consent solicitation. Such Proxy Materials and Consent Solicitation Materials shall not contain any untrue statement or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

Stockholder Meeting; Proxy Material. Subject (a) The Company shall (i) take all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholder Meeting") for the purpose of having this Agreement adopted by the stockholders of the Company in accordance with applicable Law as promptly as reasonably practicable after the SEC clears the Company Proxy Statement and the Schedule 13E-3, (ii) use reasonable best efforts to solicit the adoption of this Agreement by the stockholders of the Company, and (iii) subject to the provisions immediately succeeding sentence, include in the Company Proxy Statement the recommendation of Section 5.04the Board of Directors of the Company that the stockholders of the Company adopt this Agreement (the "Recommendation"). Neither the Board of Directors of the Company nor any committee thereof shall directly or indirectly (x) withdraw (or modify or qualify in a manner adverse to Parent or Merger Sub), or publicly propose to withdraw (or modify or qualify in a manner adverse to Parent or Merger Sub), the Company shall cause Recommendation or (y) take any other action or make any other public statement in connection with the Company Stockholder Meeting inconsistent with such Recommendation (any action described in this clause (x) or (y) being referred to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement"Recommendation Withdrawal"); provided, however, that, consistent with its fiduciary duties set forth in Section 5.04that at any time prior to obtaining the Requisite Stockholder Vote, the Board of Directors of the Company (acting through the Special Committee if such committee still exists) may effect a Recommendation Withdrawal (subject to the Company having complied with its obligations under Section 7.4) if such Board of Directors (or the Special Committee, as applicable) determines in good faith (after consultation with outside counsel) that failure to take such action could violate its fiduciary duties under applicable Law. Notwithstanding any Recommendation Withdrawal, unless this Agreement is terminated pursuant to, and in accordance with, Section 9.1, this Agreement shall be permitted submitted to (i) the stockholders of the Company at the Company Stockholders Meeting for the purpose of adopting this Agreement. If, at any time prior to the Effective Time, any information relating to the Company, Parent or Merger Sub or any of their respective Affiliates should be discovered by the Company, Parent or Merger Sub which should be set forth in an amendment or supplement to the Company Proxy Statement or Schedule 13E-3, as applicable, so that the Company Proxy Statement or Schedule 13E-3, as applicable, shall not recommend contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties and, to the extent required by applicable Law, the Company shall disseminate an appropriate amendment thereof or supplement thereto describing such information to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and (ii) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementstockholders.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the (a) The Company shall cause duly call and shall use its reasonable commercial efforts to hold a meeting of its stockholders (the Company Stockholder Meeting to be duly called and held as soon as reasonably practicable “Stockholders Meeting”) for the purpose of voting on obtaining the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's Company stockholders at required to satisfy the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties conditions set forth in Section 5.04, 8.1(a) as promptly as practicable after the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify conditions in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (iSections 8.2(c) and (iid) only if and to have expired or have been waived. In connection with the extent that Stockholders Meeting, the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) as promptly as practicable after the conditions in connection with the Company Stockholder MeetingSections 8.2(c) and (d) (i) have expired or have been waived, promptly prepare and file with the SECSEC the Proxy Materials to the Merger and the other transactions contemplated hereby, (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will provide copies of such comments to Parent and Merger Sub promptly upon receipt, (iii) as promptly as reasonably practicable, prepare and file (after Parent and Merger Sub have had a reasonable opportunity to review and comment on) any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law, (iv) use commercially its reasonable commercial efforts to have cleared by the SEC as promptly as practicable SEC, and will thereafter mail to its stockholders as promptly as practicable reasonably practicable, the Company Proxy Statement Materials and all other customary proxy or other materials for meetings such Company Stockholder Meeting and as the Stockholders Meeting, (iiv) unless, to the extent permitted required by applicable Law, as promptly as reasonably practicable prepare, file and distribute to the second sentence of this Section 5.02Company stockholders any supplement or amendment to the Proxy Materials if any event shall occur which requires such action at any time prior to the Stockholders Meeting, and subject to Section 5.04, the Board (vi) otherwise comply with all requirements of Directors shall not recommend Law applicable to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement Stockholders Meeting and the Merger. The Company will provide Parent and Merger Sub an opportunity to review and comment upon the Proxy Materials, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having or any amendments or supplements thereto, or any SEC comments received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect thereto, prior to which filing the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation same with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this AgreementSEC.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall cause a meeting of its stockholders (the “Company Stockholder Meeting Meeting”) to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York LawMerger. Subject to the provisions of Section 5.047.3(b), the Board of Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting’s stockholders. In connection with such meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend promptly provide Parent with the information relating to the Company and Company Bank that is required to be included in the Registration Statement (including, without limitation all financial information relating to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse ), use its reasonable best efforts to Buyer and Merger Subsidiary its recommendation to cause the Company's stockholders that they give ’s independent registered public accounting firm to provide any consents necessary for the Company Stockholder Approvalfiling of the Registration Statement, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially reasonable efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable after the effectiveness of the Registration Statement the Company Proxy Statement (which shall be filed as part of the Registration Statement and will include Parent’s prospectus) and all other proxy materials for such the Company Stockholder Meeting and Meeting, (ii) unless, use its best efforts to obtain the extent permitted necessary approvals by the second sentence its stockholders of this Section 5.02Agreement, the Merger and the transactions contemplated hereby, subject to Section 5.04, the Board of Directors shall not recommend 7.3(b) and (iii) otherwise comply with all legal requirements applicable to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified Meeting. Unless this Agreement has been terminated in a manner adverse to Buyer its recommendationaccordance with the terms of Article 11, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to Merger shall be mailed submitted to the Company's ’s stockholders is subject to the Board of Directors of at the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that Stockholder Meeting whether or not the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by at any time that this Agreement or the Merger is no longer advisable and with respect to which recommends that the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary stockholders of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementreject it.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall cause a meeting of its stockholders (the "Company Stockholder Meeting Meeting") to be duly called and shall use its reasonable best efforts to ensure that such meeting is held as soon as reasonably practicable after the date of this Agreement for the purpose of voting on the adoption of this Agreement. In connection with such meeting, the Company will (i) as promptly as practicable following the date hereof prepare and file with the SEC, use its reasonable best efforts to have cleared by the SEC and thereafter mail to its stockholders as promptly as reasonably practicable, the Company Proxy Statement and all other proxy materials for such meeting and (ii) subject to the fiduciary obligations of the Company's Board of Directors, use its reasonable best efforts to obtain the necessary approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Lawits stockholders. Subject to the provisions of Section 5.04its fiduciary obligations, the Board of Directors of the Company shall recommend approval and adoption of this Agreement by its stockholders and take all lawful action (including the Merger by the Company's stockholders at the Company Stockholder Meeting, solicitation of proxies) to solicit such approval and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inactionadoption. The Company will (i) in connection with the Company Stockholder Meetingshall provide Parent an opportunity to review and comment on any filing with, promptly prepare and file with or amendment, supplement or correspondence to, the SEC, use commercially reasonable efforts to have cleared by . The Company shall advise Parent promptly after it receives correspondence from the SEC as promptly as practicable and thereafter mail relating to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials or requests by the SEC for such additional information. If at any time prior to the Company Stockholder Meeting any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, is discovered by the Company or Parent that should be set forth in an amendment or supplement to the Company Proxy Statement to ensure that the Company Proxy Statement does not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and (ii) unlessan appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent permitted required by the second sentence of this Section 5.02Law, and subject to Section 5.04, the Board of Directors shall not recommend disseminated to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and the Merger, provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreement.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the The Company shall cause a meeting of its stockholders (the Company Stockholder Meeting "COMPANY STOCKHOLDER MEETING") to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York LawMerger. Subject to the provisions of Section 5.04In connection with such meeting, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially reasonable its best efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and any amendments or supplements thereto and all other proxy materials for such meeting, (ii) use its reasonable best efforts (including postponing or adjourning the Company Stockholder Meeting and (ii) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit additional proxies in favor for a period of up to 30 days) to obtain the approval necessary approvals by its stockholders of this Agreement and the Merger, provided that the obligation transactions contemplated hereby and (iii) otherwise comply with all legal requirements applicable to such meeting. Approval of the Company to cause Merger will be presented as a single proposal in the Company Proxy Statement and will be conditioned solely upon the proxy to be mailed approval of the sale of NA Shares pursuant to the CompanyNA Merger Agreement. The Company shall provide Parent and its legal counsel with sufficient opportunity to comment upon the form and substance of the Company Proxy Statement (including any amendments or supplements thereto) prior to filing such with the SEC and the Company shall use its reasonable efforts to incorporate Parent's stockholders is subject reasonable comments into the Company Proxy Statement (including any amendments or supplements thereto). The Company shall provide to Parent copies of any comments received from the SEC in connection therewith and shall consult with Parent in responding to the SEC. Subject to Section 6.04(c), the Company Proxy Statement shall contain the unqualified recommendation of the Board of Directors of the Company having received from Jefferies & Co., Inc. confirmation of that its opinion referred to stockholders vote in Section 3.02 as favor of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes approval and adoption of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than Merger and the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementhereby.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the (a) The Company shall cause a meeting of its stockholders (the “Company Stockholder Meeting Meeting”) to be duly called and held as soon as reasonably practicable for the purpose of voting on the approval and adoption Company Stockholder Approval. The Board of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval. In connection with such meeting, but in each of cases the Company (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, shall promptly prepare and file with the SEC, shall use its commercially reasonable efforts to have cleared by the SEC as promptly as practicable and shall thereafter mail to its stockholders as promptly as practicable practicable, the Company Proxy Statement and all other proxy materials for such meeting, (ii) shall use its commercially reasonable efforts to obtain the necessary approvals by its stockholders of the Company Stockholder Approval, and (iii) shall otherwise comply with all legal requirements applicable to such meeting. The Company has been advised that all of its directors and executives currently intend to vote all shares owned by them in favor of the Company Stockholder Approval. The Company shall provide the Investor with a copy of the preliminary proxy statement and all modifications thereto prior to filing or delivery to the SEC and shall consult with the Investor in connection therewith. The Company shall notify the Investor promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Company Proxy Statement or for additional information and shall supply the Investor with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Company Proxy Statement or the Transactions. If at any time prior to the Company Stockholder Meeting there shall occur any event that should be set forth in an amendment or supplement to the Company Proxy Statement, the Company shall promptly prepare and (ii) unlessmail to its stockholders such an amendment or supplement. The Company shall not mail any Company Proxy Statement, or any amendment or supplement thereto, to which the extent permitted by Investor reasonably and timely objects. In the second sentence event that the Company Stockholder Approval necessary to permit the conversion of this Section 5.02the Senior Preferred Stock and the Junior Preferred Stock is not obtained at the Company Stockholder Meeting, the Company shall include a proposal to approve and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement and such issuance and, if necessary, a further amendment to the Merger, provided that the obligation Certificate of Incorporation of the Company to cause increase the Company Proxy Statement and the proxy authorized shares to be mailed an amount sufficient to the Company's stockholders is subject to the Board of Directors allow for conversion of the Company having received from Jefferies & Co.shares of Capital Stock and exercise of Warrants purchased by the Investor hereunder, Inc. confirmation at a meeting of its opinion referred to stockholders no less than once in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests each subsequent six-month period beginning on September 15, 2008 and until such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer approval is obtained or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this Agreementmade.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04, the (a) The Company shall cause duly call and shall use its reasonable best efforts to hold a meeting of its stockholders (the Company Stockholder Meeting to be duly called and held as soon as reasonably practicable "STOCKHOLDERS' MEETING") for the purpose of voting on obtaining the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York Law. Subject to the provisions of Section 5.04, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's Company stockholders at required to satisfy the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties conditions set forth in Section 5.048.1(a) as promptly as practicable. The Company agrees that, unless otherwise required by applicable Law, it shall hold the Stockholders' Meeting prior to its next Annual Meeting. In connection with the Stockholders Meeting, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meetingas promptly as practicable, promptly prepare and file with the SECSEC the Proxy Materials to the Merger and the other transactions contemplated hereby, (ii) respond as promptly as reasonably practicable to any comments received from the SEC with respect to such filings and will provide copies of such comments to Parent and Merger Sub promptly upon receipt, (iii) as promptly as reasonably practicable, prepare and file (after Parent and Merger Sub have had a reasonable opportunity to review and comment on) any amendments or supplements necessary to be filed in response to any SEC comments or as required by Law, (iv) use commercially its reasonable best efforts to have cleared by the SEC as promptly as practicable SEC, and will thereafter mail to its stockholders as promptly as practicable reasonably practicable, the Company Proxy Statement Materials and all other customary proxy or other materials for meetings such as the Stockholders Meeting, (v) to the extent required by applicable Law, as promptly as reasonably practicable prepare, file and distribute to the Company Stockholder stockholders any supplement or amendment to the Proxy Materials if any event shall occur which requires such action at any time prior to the Stockholders Meeting and (iivi) unless, otherwise comply with all requirements of Law applicable to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval of this Agreement Stockholders Meeting and the Merger. The Company will provide Parent and Merger Sub an opportunity to review and comment upon the Proxy Materials , provided that the obligation of the Company to cause the Company Proxy Statement and the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of the Company having or any amendments or supplements thereto, or any SEC comments received from Jefferies & Co., Inc. confirmation of its opinion referred to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if the Board of Directors requests such a confirmation. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of the Company determines in its reasonable good faith judgment are more favorable to the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect thereto, prior to which filing the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation same with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer or proposal for a merger, consolidation or tender or exchange offer or other business combination involving the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, other than the transactions contemplated by this AgreementSEC.

Stockholder Meeting; Proxy Material. Subject to the provisions of Section 5.04Unless and until this Agreement is terminated in accordance with Article 9, the Company shall cause a meeting of its stockholders (the “Company Stockholder Meeting Meeting”) to be duly called and held as soon as reasonably practicable for the purpose of voting on obtaining the Stockholder Vote, even if the Board of Directors of the Company or the Special Committee determines at any time after the date of this Agreement that this Agreement is no longer advisable or recommends that the stockholders of the Company vote against its adoption. Subject to Section 6.3(b)(iii), the Company Proxy Statement shall include disclosure of the approval and declaration of advisability by the Board of Directors of this Agreement and the Merger and the recommendation of the Board of Directors of the Company and the Special Committee to the Company’s stockholders that they vote in favor of the approval and adoption of this Agreement and the Merger unless a vote of stockholders of the Company is not required by New York LawMerger. Subject to the provisions of Section 5.04In connection with such meeting, the Directors of the Company shall recommend approval and adoption of this Agreement and the Merger by the Company's stockholders at the Company Stockholder Meeting, and will include such recommendation in the Company Proxy Statement; provided, however, that, consistent with its fiduciary duties set forth in Section 5.04, the Board of Directors of the Company shall be permitted to (i) not recommend to the Company's stockholders that they give the Company Stockholder Approval or (ii) withdraw or modify in a manner adverse to Buyer and Merger Subsidiary its recommendation to the Company's stockholders that they give the Company Stockholder Approval, but in each of cases (i) and (ii) only if and to the extent that the Company has complied with Section 5.04 and this Section 5.02 and a Superior Proposal (as defined below) is pending at the time the Company's Board of Directors determines to take any such action or inaction. The Company will (i) in connection with the Company Stockholder Meeting, promptly prepare and file with the SEC, use commercially its reasonable best efforts to have cleared by the SEC as promptly as practicable and thereafter mail to its stockholders as promptly as practicable the Company Proxy Statement and all other proxy materials for such Company Stockholder Meeting and meeting, (ii) unless, to the extent permitted by the second sentence of this Section 5.02, and subject to Section 5.04, the Board of Directors shall not recommend to the Company's solicit from its stockholders that they give the Company Stockholder Approval or shall have withdrawn or modified in a manner adverse to Buyer its recommendation, use commercially reasonable efforts to solicit proxies in favor of the approval and adoption of this Agreement and the Merger, provided that Merger and use its reasonable best efforts to obtain the obligation necessary approvals by its stockholders of this Agreement and the transactions contemplated hereby and (iii) otherwise comply with all legal requirements applicable to such meeting. The Company shall permit Parent and Merger Subsidiary and their counsel to cause review and provide comments to the Company Proxy Statement and before it is filed with the proxy to be mailed to the Company's stockholders is subject to the Board of Directors of SEC. The Company will incorporate any such comments that are reasonable into the Company having received Proxy Statement. In addition, the Company shall provide Parent and Merger Subsidiary and their counsel any comments or other communications, whether written or oral, that the Company may receive from Jefferies & Co., Inc. confirmation of time to time from the SEC or its opinion referred staff with respect to in Section 3.02 as of the date scheduled for mailing of the Company Proxy Statement if promptly after the Board receipt of Directors requests such comments or other communications and shall give Parent and Merger Subsidiary and their counsel a confirmationreasonable opportunity to review and suggest responses to such comments or other communications. For purposes of this Agreement, "Superior Proposal" means any bona fide Acquisition Proposal, on terms that the Board of Directors of After the Company determines in its reasonable good faith judgment are more favorable to Stockholder Meeting has been duly noticed by the Company's stockholders taken as a whole than the transactions contemplated by this Agreement and with respect to which the Company's Board of Directors determines, in its reasonable good faith judgment, after consultation with its financial advisors, the Person making such Acquisition Proposal has the financial means to consummate such Acquisition Proposal. For purposes of this Agreement, "Acquisition Proposal" means any offer it will not adjourn or proposal for a merger, consolidation or tender or exchange offer or other business combination involving postpone the Company or any Subsidiary of the Company or the acquisition of any substantial debt or equity interest in, or a substantial portion of the assets of, the Company or of any Company Subsidiary, Stockholder Meeting (other than an adjournment for lack of a quorum) without the transactions contemplated by this Agreementprior written consent of Parent.