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

Stockholders’ Meeting; Proxy Statement. (a) If required by the DGCL in order to consummate the Merger, the Company, acting through the Company Board, shall, in accordance with applicable law and the Company Certificate of Incorporation and Company Bylaws, (i) duly call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable following consummation of the Offer for the purpose of considering and taking action on the adoption of this Agreement and the approval of the Merger (the “Stockholders’ Meeting”), (ii) file a proxy or information statement with the SEC in accordance with the Exchange Act (the “Proxy Statement”) and shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC, and (iii) include in the Proxy Statement (A) the recommendation of the Company Board that the stockholders of the Company approve and adopt this Agreement; provided that such recommendation may be withdrawn, modified or amended to the extent the Company Board determines that the failure to do so would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law (as determined by the Company Board in good faith after consultation with counsel), and (B) the Fairness Opinion (to the extent not withdrawn). The Proxy Statement shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. The Proxy Statement shall not, at the time of mailing thereof and at the time of the Stockholders’ Meeting, contain an untrue statement of a material fact 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. Parent, Purchaser and the Company shall also take any action required to be taken under Blue Sky Laws or state securities laws in connection with the Merger. Parent, Purchaser and the Company shall cooperate with each other in taking such action and in the preparation of the Proxy Statement. Parent and its counsel shall be given reasonable opportunity to review the Proxy Statement and any amendments thereto prior to dissemination of the Proxy Statement to holders of shares of Company Common Stock. The Company shall provide Parent and its counsel with a copy of any written comments or telephonic notification of any oral comments the Company may receive from the SEC or its staff with respect to the Proxy Statement promptly after the receipt thereof. The Company shall provide Parent and its counsel with a reasonable opportunity, to the extent practicable, to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Proxy Statement. At the Stockholders’ Meeting, Parent and Purchaser shall cause any shares of Company Common Stock acquired by Purchaser in the Offer to be voted in favor of the approval and adoption of this Agreement and the Merger.

Stockholders’ Meeting; Proxy Statement. (a) If required by As promptly as reasonably practicable following the DGCL in order to consummate the Mergerdate hereof, the Company, acting through the Company Board, shall, in accordance with applicable law and the Company Certificate of Incorporation and Company Bylaws, shall (i) duly take all action necessary to call, give notice of, convene and hold a meeting of its the Company’s stockholders as promptly as practicable following consummation of (including any adjournment or postponement thereof, the Offer “Company Stockholders Meeting”) for the purpose of considering adopting this Agreement, and taking action on the adoption of this Agreement and the approval of the Merger (the “Stockholders’ Meeting”), (ii) in connection with the Company Stockholders Meeting, by January 8, 2013 prepare and file a proxy or information statement with the SEC in accordance a proxy statement (together with the Exchange Act (all amendments and supplements thereto, the “Proxy Statement”) relating to the Merger and shall use its reasonable best efforts this Agreement and furnish the information required to have the Proxy Statement cleared by the SEC, and (iii) include in the Proxy Statement (A) the recommendation of the Company Board that be provided to the stockholders of the Company approve pursuant to the DGCL and adopt this Agreement; provided that such recommendation the Exchange Act. Parent will provide the Company with any information concerning Parent or Merger Sub as may be withdrawn, modified or amended to the extent the Company Board determines that the failure to do so would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law (as determined reasonably requested by the Company Board in good faith after consultation with counsel)order to effectuate the preparation and filing of the Proxy Statement, and (B) the Fairness Opinion (to the extent not withdrawn). The Proxy Statement shall comply as to form in all material respects otherwise assist and cooperate with the requirements of the Exchange Act and the rules and regulations thereunder. The Proxy Statement shall not, at the time of mailing thereof and at the time of the Stockholders’ Meeting, contain an untrue statement of a material fact 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. Parent, Purchaser and the Company shall also take any action required to be taken under Blue Sky Laws or state securities laws in connection with the Merger. Parent, Purchaser and the Company shall cooperate with each other in taking such action and in the preparation of the Proxy Statement. Parent and its counsel shall be given reasonable opportunity to review the Proxy Statement and the resolution of any amendments thereto comments from the SEC referred to below. Promptly after its preparation and prior to dissemination its filing with the SEC, the Company shall provide a copy of the Proxy Statement to holders of shares of Company Common StockParent and shall provide Parent with a reasonable opportunity to review and comment on the Proxy Statement, and will consider for inclusion into the Proxy Statement reasonable comments timely received from Parent or its legal counsel. The Company shall provide give Parent and its counsel with a copy notice of any written comments or telephonic notification of any oral comments on the Company may receive Proxy Statement received from the SEC or its staff with respect to the Proxy Statement promptly after the receipt thereof. The Company shall provide Parent and its counsel with a reasonable opportunity, to the extent practicable, to participate in all other communications with from the SEC and its staff, including any meetings and telephone conferences, relating to the Proxy Statement, and the Company will provide Parent a reasonable opportunity to review and comment on any response to such comments or any amendment to the Proxy Statement, and, subject to such review and comment by Parent, shall reasonably promptly respond to SEC comments, if any. At If (i) at any time prior to the Stockholders’ Company Stockholders Meeting, any event should occur relating to the Company or any of the Subsidiaries that should be set forth in an amendment of, or a supplement to, the Proxy Statement, the Company shall promptly inform Parent, and (ii) if at any time prior to the Company Stockholders Meeting, any event should occur relating to Parent or Merger Sub that should be set forth in an amendment of, or a supplement to, the Proxy Statement, Parent will promptly inform the Company, and Purchaser in the case of (i) or (ii) the Company and Parent, will, upon learning of such event, promptly prepare, and the Company shall file with the SEC and, if required, mail such amendment or supplement to the Company’s stockholders; provided, prior to such filing, the Company and Parent shall consult with each other with respect to such amendment or supplement. So long as the Company Board shall not have effected a Change of Recommendation, the Proxy Statement shall include the Company Recommendation and the opinion of the Financial Advisor referred to in Section 4.19. The Company shall cause any shares of Company Common Stock acquired by Purchaser in the Offer Proxy Statement to be voted in favor mailed to the Company’s stockholders as promptly as practicable after the resolution of any comments from the approval and SEC. The Company shall use commercially reasonable efforts to solicit proxies from the Company’s stockholders for adoption of this Agreement and the MergerAgreement.

Stockholders’ Meeting; Proxy Statement. (a) If required by the DGCL in order to consummate the Merger, the Company, acting through the Company Board, shall, in accordance with applicable law and the Company Certificate of Incorporation and Company Bylaws, (i) duly call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable following consummation of the Offer for the purpose of considering and taking action on the adoption of this Agreement and the approval of the Merger (the “"Stockholders’ ' Meeting”"), (ii) file a proxy or information statement with the SEC in accordance with the Exchange Act (the “"Proxy Statement”") and shall use its reasonable best efforts to have the Proxy Statement cleared by the SEC, and (iii) include in the Proxy Statement (A) the recommendation of the Company Board that the stockholders of the Company approve and adopt this Agreement; provided that such recommendation may be withdrawn, modified or amended to the extent the Company Board determines that the failure to do so would be inconsistent with its fiduciary duties to the Company’s 's stockholders under applicable law (as determined by the Company Board in good faith after consultation with counsel), and (B) the Fairness Opinion (to the extent not withdrawn). The Proxy Statement shall comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. The Proxy Statement shall not, at the time of mailing thereof and at the time of the Stockholders’ ' Meeting, contain an untrue statement of a material fact 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. Parent, Purchaser and the Company shall also take any action required to be taken under Blue Sky Laws or state securities laws in connection with the Merger. Parent, Purchaser and the Company shall cooperate with each other in taking such action and in the preparation of the Proxy Statement. Parent and its counsel shall be given reasonable opportunity to review the Proxy Statement and any amendments thereto prior to dissemination of the Proxy Statement to holders of shares of Company Common Stock. The Company shall provide Parent and its counsel with a copy of any written comments or telephonic notification of any oral comments the Company may receive from the SEC or its staff with respect to the Proxy Statement promptly after the receipt thereof. The Company shall provide Parent and its counsel with a reasonable opportunity, to the extent practicable, to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Proxy Statement. At the Stockholders’ ' Meeting, Parent and Purchaser shall cause any shares of Company Common Stock acquired by Purchaser in the Offer to be voted in favor of the approval and adoption of this Agreement and the Merger.

Stockholders’ Meeting; Proxy Statement. (a) If Promptly following the Agreement Date (and, in any event, within fifteen (15) Business Days following the Agreement Date (unless the failure to file in such time period is caused by the failure of Parent to provide, or cause to be provided, such information regarding itself, its Subsidiaries (including Merger Subsidiary) or its Affiliates, as required by Law to be included in the DGCL in order to consummate the Merger, Proxy Statement and as requested by the Company, acting through in which case, the Company Board, shallwill file the Proxy Statement promptly but, in accordance any event, within two (2) Business Days following the receipt of such required and/or requested information), the Company shall prepare the Proxy Statement and file it with applicable law the SEC. Prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company agrees to provide Merger Subsidiary, Parent and their counsel a reasonable opportunity to review and comment on such document prior to the filing, mailing or other submission thereof with the SEC, and the Company Certificate of Incorporation shall give reasonable and good faith consideration to any comments made by Merger Subsidiary, Parent and their counsel that are provided in a timely manner. The Company Bylaws(and Parent, (ias applicable) duly call, give notice of, convene shall use commercially reasonable efforts to respond as promptly as reasonably practicable to and hold a meeting of resolve all comments received from the SEC or its staff concerning the Proxy Statement and shall cause the Proxy Statement to be mailed to its stockholders as promptly as reasonably practicable following consummation after establishing the Record Date. The Company shall (i) notify Parent promptly upon (but, in any event, within twenty-four (24) hours of) the receipt of any comments from the Offer SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the purpose of considering and taking action on the adoption of this Agreement and the approval of the Merger (the “Stockholders’ Meeting”)Proxy Statement, (ii) file a proxy or information statement provide Merger Subsidiary, Parent and their counsel an opportunity to participate with the SEC Company or its counsel in accordance any material discussions or meetings with any Governmental Authority or its staff regarding such comments and/or requests if and to the Exchange Act (the “Proxy Statement”) extent permitted by applicable Law and shall use such Governmental Authority or its reasonable best efforts to have the Proxy Statement cleared by the SEC, staff and (iii) include supply Parent with copies of all material correspondence between the Company or any of its Representatives, on the one hand, and the SEC, or its staff, on the other hand, with respect to the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and Merger Subsidiary shall use commercially reasonable efforts to cooperate with the Company in connection with the preparation and filing of the Proxy Statement, including furnishing, upon request, as promptly as reasonably practicable to the Company in writing any and all information relating to it as may be required to be set forth in the Proxy Statement (A) the recommendation of the Company Board that the stockholders of the Company approve and adopt this Agreement; provided that such recommendation may be withdrawn, modified or amended to the extent the Company Board determines that the failure to do so would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law (as determined by the Company Board in good faith after consultation with counsel), and (B) the Fairness Opinion (to the extent not withdrawn)Law. The Proxy Statement shall will comply as to its form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder. The Proxy Statement shall not, at the time of mailing thereof and at the time applicable thereto as of the Stockholders’ Meeting, contain an untrue statement date of a material fact 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. Parent, Purchaser and the Company shall also take any action required to be taken under Blue Sky Laws or state securities laws in connection such filing with the Merger. Parent, Purchaser and the Company shall cooperate with each other in taking such action and in the preparation of the Proxy Statement. Parent and its counsel shall be given reasonable opportunity to review the Proxy Statement and any amendments thereto prior to dissemination of the Proxy Statement to holders of shares of Company Common Stock. The Company shall provide Parent and its counsel with a copy of any written comments or telephonic notification of any oral comments the Company may receive from the SEC or its staff with respect to the Proxy Statement promptly after the receipt thereof. The Company shall provide Parent and its counsel with a reasonable opportunity, to the extent practicable, to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Proxy Statement. At the Stockholders’ Meeting, Parent and Purchaser shall cause any shares of Company Common Stock acquired by Purchaser in the Offer to be voted in favor of the approval and adoption of this Agreement and the MergerSEC.

Stockholders’ Meeting; Proxy Statement. (a) If required by The Company shall, as promptly as reasonably practicable after the DGCL date of this Agreement (and in order any event within fifteen (15) Business Days after the date hereof), prepare and file with the SEC the Proxy Statement which shall, subject to consummate the MergerSection 5.3, the Company, acting through include the Company BoardBoard Recommendation, shall, in accordance with applicable law and the Company Certificate of Incorporation and Company Bylaws, (i) duly call, give notice of, convene Parent shall jointly prepare and hold a meeting of its stockholders as promptly as practicable following consummation of the Offer for the purpose of considering and taking action on the adoption of this Agreement and the approval of the Merger (the “Stockholders’ Meeting”), (ii) file a proxy or information statement with the SEC in accordance with the Exchange Act (the “Proxy Statement”) and a Schedule 13E-3. The Company shall use its reasonable best efforts to have respond promptly to any comments by the SEC staff in respect of the Proxy Statement cleared by Statement. Parent and Merger Sub shall provide to the SEC, and (iii) include Company such information as the Company may reasonably request for inclusion in the Proxy Statement (A) the recommendation of the Company Board that the stockholders of the Company approve and adopt this Agreement; provided that such recommendation may be withdrawn, modified or amended to the extent the Company Board determines that the failure to do so would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law (as determined by the Company Board in good faith after consultation with counsel), and (B) the Fairness Opinion (to the extent not withdrawn)Statement. The Proxy Statement and Schedule 13E-3 shall comply as to form in all material respects with the requirements applicable provisions of the Exchange Act and the rules and regulations thereunder. The Company will use its reasonable best efforts (with the assistance of, and after consultation with, Parent as provided by this Section 5.4(a)) to have the preliminary Proxy Statement shall not, at cleared by the time of mailing thereof and at the time of the Stockholders’ Meeting, contain an untrue statement of a material fact 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. Parent, Purchaser SEC as promptly as reasonably practicable after such filing and the Company shall also take any action required use its reasonable best efforts to be taken under Blue Sky Laws or state securities laws in connection with the Merger. Parent, Purchaser and the Company shall cooperate with each other in taking such action and in the preparation of the Proxy Statement. Parent and its counsel shall be given reasonable opportunity to review cause the Proxy Statement and Schedule 13E-3 to be mailed to the Company’s shareholders as promptly as reasonably practicable after the date on which Company learns that the preliminary Proxy Statement will not be reviewed or that the SEC staff has no further comments thereon (and in any amendments thereto prior event within five (5) Business Days after the date thereof). Prior to dissemination of filing or mailing the Proxy Statement or Schedule 13E-3 or filing any other required documents (or in each case, any amendment or supplement thereto) or responding to holders any comments of shares of Company Common Stock. The the SEC or its staff with respect thereto, the Company shall provide Parent with an opportunity to review and comment on such document or response and shall give good faith consideration to any comments made by Parent and its counsel with a copy counsel. The Company will notify Parent promptly of the receipt of any written comments from the SEC or telephonic notification its staff and of any oral comments request by the SEC or its staff for amendments or supplements to the Proxy Statement or Schedule 13E-3 or for additional information and will promptly supply Parent with copies of all correspondence between the Company may receive from and the SEC or its staff with respect to the Proxy Statement promptly after Statement, Schedule 13E-3 or the receipt thereof. The Company shall provide Parent and its counsel with a reasonable opportunity, to the extent practicable, to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Proxy Statement. At the Stockholders’ Meeting, Parent and Purchaser shall cause any shares of Company Common Stock acquired by Purchaser in the Offer to be voted in favor of the approval and adoption of this Agreement and the MergerContemplated Transactions.