Common use of Stockholders Meeting Clause in Contracts

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.

Stockholders Meeting. The Company shall, shall (a) as promptly soon as reasonably practicable following the date on which the S-4 Registration Statement is declared effective under the Securities Act and the SEC (or the staff of the SEC) confirms advises that it has no further comments on the Prospectus/Proxy Statement or that the Company may commence mailing the Prospectus/Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market duly call and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, and commence mailing of the Prospectus/Proxy Statement to the holders of Company Shares as of the record date established for, a meeting of holders of the Company Shares (the “Company Stockholders Meeting”) to consider and vote upon the adoption of this Agreement, (b) as soon as reasonably practicable (but in any event within 35 calendar days) following the commencement of the mailing of the Prospectus/Proxy Statement pursuant to clause (a) above, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make Stockholders Meeting, and (c) unless there has been an Adverse Recommendation Change permitted by and in accordance with Section 6.6(c6.2(f), the board of directors of use its reasonable best efforts to solicit proxies from the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, stockholders in favor of the adoption of this Agreement and take all other actions necessary or advisable to secure the approval of Requisite Company Vote; notwithstanding this Section 6.4, the Merger at Company may adjourn or postpone the Stockholders’ Company Stockholders Meeting and the approval of the Recapitalization if the same is submitted to a later date to the holders of extent the Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained believes in this Agreement, the Companygood faith, after consultation with Parent, may adjourn that such adjournment or postpone the Stockholders’ Meeting postponement is reasonably necessary (i) as necessary to ensure that any required supplement or amendment to the Prospectus/Proxy Statement is provided to the Company’s stockholders holders of Company Shares within a reasonable amount of time in advance of the Stockholders’ Company Stockholders Meeting, (ii) if as of to allow reasonable additional time to solicit additional proxies necessary to obtain the time for which the Stockholders’ Meeting is originally scheduled Requisite Company Vote, (as set forth in the Proxy Statementiii) to ensure that there are insufficient shares of sufficient Company Common Stock Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business at of the Stockholders’ Company Stockholders Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation otherwise where required to comply with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this AgreementSection 6.2, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of Board shall recommend the adoption of this the Agreement at the Company Stockholders Meeting and, unless there has been an Adverse Recommendation Change permitted by and in accordance with Section 6.2(f), shall include the approval of Company Recommendation in the transactions contemplated hereby, including the Merger, Prospectus/Proxy Statement and to take all other lawful action necessary necessary, proper or advisable on its part to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain solicit such approvalsadoption.

Stockholders Meeting. The Subject to fiduciary obligations under applicable Law, the Company shallwill take, in accordance with applicable Law and its certificate of incorporation and bylaws, all reasonable action necessary to convene a meeting of holders of Shares (the “Stockholders Meeting”) as promptly as reasonably practicable following after the date on which the SEC (or the staff of the SEC) confirms advises that it has no further comments on thereon or that the Company may commence mailing the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market Statement to consider and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to vote upon the adoption of this Agreement and Agreement; provided, however, for the approval avoidance of doubt, the Company may postpone or adjourn the Stockholders Meeting, but no longer than reasonably necessary, (a) with the consent of Parent; (b) for the absence of a quorum; (c) to allow reasonable additional time for the filing and/or mailing of any supplemental or amended disclosure that the Board of Directors of the transactions Company or any committee thereof has determined in good faith after consultation with outside counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting; (d) if required by Law; or (e) if the Company has provided a written notice to Parent and Merger Sub pursuant to Section 6.2(c)(ii) that it intends to make a Change of Recommendation in connection with a Superior Proposal or take action pursuant to Section 8.3(a) with respect to a Superior Proposal, until a date that is two Business Days after the deadline contemplated herebyby Section 6.2(c)(ii) with respect to such notice or subsequent notice(s) if the Acquisition Proposal is modified during such two Business Day period. Subject to Section 6.2, including the MergerBoard of Directors of the Company and any committee thereof shall recommend such adoption, and shall include such recommendation the Company Recommendation in the Proxy Statement. Parent Statement and shall vote (or cause take all reasonable lawful action to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the solicit such adoption of this Agreement. Notwithstanding any Change of Recommendation, unless this Agreement is terminated pursuant to, and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is in accordance with, Article VIII, this Agreement shall be submitted to the holders of Company Common Stock for approval Shares at the Stockholders’ Meeting. Notwithstanding anything to Stockholders Meeting for the contrary contained in purpose of adopting this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following Section 2.8.1 If required by applicable law in order to consummate the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable LawMerger, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene shall (A) call and hold a special meeting of its stockholders (the “"Company Stockholders’ ' Meeting”") as promptly as practicable following the later of the Expiration Date or the expiration of any subsequent offering period as permitted by Section 1.1.2, or upon the request of Parent, for the purpose of obtaining considering and taking action upon the Requisite Stockholder Approval. Subject Merger and this Agreement; (B) prepare and file with the SEC a preliminary proxy statement relating to this Agreement, and use its reasonable efforts (1) to obtain and furnish the ability of information required to be included by the board of directors of SEC in the Company Proxy Statement (as defined below) and, after consultation with Parent, to make an Adverse Recommendation Change in accordance with Section 6.6(c), respond promptly to any comments made by the board of directors of the Company shall make the Company Recommendation SEC with respect to the adoption preliminary proxy statement and cause a definitive proxy statement (as the same may be supplemented or amended from time to time, the "Proxy Statement") to be mailed to its stockholders and (2) to obtain the necessary approvals of the Merger and this Agreement by its stockholders; and the approval of the transactions contemplated hereby(C) subject to Section 5.4.3, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall Statement the recommendation of the Company Board that stockholders of the Company vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meetingthis Agreement. Notwithstanding anything to the contrary contained in herein, the Company agrees that its obligations pursuant to the first sentence of this Section 2.8.1 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of an Acquisition Proposal or a Superior Proposal or any withdrawal or modification of the approval or recommendation by the Company Board or any committee thereof of the Offer and the Merger and the adoption and approval of this Agreement. In addition, the Company shall prepare and file with the SEC any Other Filings as and when required or requested by the SEC. The Company, after consultation with Parent, may adjourn or postpone will use all reasonable efforts to respond to any comments made by the Stockholders’ Meeting (i) as necessary SEC with respect to ensure that any required supplement or amendment Other Filings. Each of the Company, on the one hand, and Parent and the Purchaser, on the other hand, agree promptly to correct any information provided by either of them for use in the Proxy Statement is provided if and to the Company’s stockholders within a reasonable amount of time in advance of extent that it shall have become false or misleading, and the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in Company further agrees to take all steps necessary to cause the Proxy Statement) there are insufficient shares Statement as so corrected to be filed with the SEC and to be disseminated to the holders of Company Common Stock represented (either Shares, in person or by proxy) each case as and to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if extent required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsfederal securities laws.

Stockholders Meeting. The Company, acting through the Company shallBoard (or a committee thereof), shall as promptly soon as reasonably practicable following the date on which the Company learns that the Proxy Statement will not be reviewed or that the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statementthereon, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) to be held no more than 50 days thereafter for the purpose of obtaining approving and adopting this Agreement (including any adjournment or postponement thereof, the Requisite Stockholder Approval. Subject to the ability of the board of directors of “Stockholders Meeting”) and shall not postpone, recess or adjourn such meeting; provided, that the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c)may postpone, the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include recess or adjourn such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting meeting (i) as necessary to ensure that any required supplement or amendment to if on the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for date on which the Stockholders’ Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) ), the Company has not received proxies representing a sufficient number of Shares to obtain the Company Requisite Vote or there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ Stockholders Meeting; or (ii) if the failure to postpone, recess or adjourn the Stockholders Meeting would reasonably be expected to be a violation of applicable Law for the distribution of any required amendment or supplement to the Proxy Statement to be timely provided to the holders of Shares; provided, further, that the Stockholders Meeting shall not be postponed, recessed or adjourned pursuant to this proviso to a date that is more than 30 days after the date on which the Stockholders Meeting was originally scheduled without the prior written consent of Parent. The Company, acting through the Company Board (or a committee thereof), shall (a) subject to Section 6.1(c), include in the Proxy Statement the Recommendation, (iiib) if required by applicable Law or (iv) if in include the good faith judgment written opinion of the board of directors Financial Advisor, dated as of the Company date of this Agreement, that, as of such date, the Per Share Merger Consideration is fair, from a financial point of view, to the holders of the Common Stock (after consultation with legal counselother than the holders of Cancelled Shares, Subsidiary Shares and Dissenting Shares), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of and (c) subject to Section 6.1(c), use its reasonable best efforts to obtain the Company under applicable Law. Subject Requisite Vote, including to solicit proxies necessary to obtain the Company Requisite Vote; provided that, notwithstanding anything to the provisions of contrary contained in this Agreement, the Company will use reasonable best efforts Board may fail to solicit from holders of Company Common Stock proxies include the Recommendation in favor the Proxy Statement or withdraw, modify, qualify in any manner adverse to Parent, or change the Recommendation, or formally resolve to effect or publicly announce an intention to effect any of the adoption foregoing (a “Change of Recommendation”), if (x) (A) a bona fide Acquisition Proposal that was made after the date hereof and was not initiated, solicited, knowingly encouraged or facilitated in violation of Section 6.1 is made to the Company and is not withdrawn and the Company Board determines in good faith, after consultation with, and taking into account the advice of, its Financial Advisor and outside legal counsel that such Acquisition Proposal constitutes a Superior Proposal or (B) there exists any Intervening Event, (y) the Company Board shall have determined in good faith, after consultation with, and taking into account the advice of, outside legal counsel to the Company, that the failure of the Company Board to effect a Change of Recommendation would be inconsistent with its fiduciary duties under applicable Law and (z) (A) if such Change of Recommendation is made in response to an Acquisition Proposal, the Company complies with the provisions of Section 6.1(c) or (B) if such Change of Recommendation is made in response to an Intervening Event, the Company (x) delivers to Parent a written notice informing Parent that the Company Board proposes to take such action and the basis of the proposed action (including a reasonably detailed description of the underlying facts giving rise to, and the reasons for taking, such action) no less than four (4) Business Days before taking such action and (y) during such four (4) Business Day period, if requested by Parent, engages in good faith negotiations with Parent and its Representatives regarding any adjustments in the terms and conditions of this Agreement and proposed by Parent so that such event, development, circumstance, change, effect, condition or occurrence would cease to warrant a Change of Recommendation. The Company shall keep Parent updated with respect to proxy solicitation results as reasonably requested by Parent. Notwithstanding anything to the approval contrary contained in this Agreement, if subsequent to the date of this Agreement the transactions contemplated herebyCompany Board makes a Change of Recommendation, including the Merger, and Company nevertheless shall submit this Agreement to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by Shares for approval and adoption at the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsStockholders Meeting unless and until this Agreement is terminated in accordance with its terms.

Stockholders Meeting. The Company shall, as (a) As promptly as reasonably practicable following (and in any event within 15 business days) after the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Lawhereof, the rules of The Nasdaq Capital Market Company shall prepare and file with the Restated Certificate of Incorporation, as amended, Securities and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders Exchange Commission (the “Stockholders’ MeetingSEC”) a proxy for the purpose of obtaining Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the Requisite Stockholder Approval. Subject “Proxy Statement”) relating to the ability of Merger and this Agreement; provided, that, except for such portions as may relate to a Competing Proposal, Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the board of directors of Proxy Statement and any amendment or supplement thereto before it is filed with the SEC and the Company to make an Adverse shall consider in good faith all reasonable changes suggested by Parent in connection therewith. Unless there is a Change of Recommendation Change in accordance with Section 6.6(c5.2(c), the board of directors Company shall include in the Proxy Statement the recommendation of the Company shall make Board of Directors that the stockholders of the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement in accordance with the DGCL. The Company shall use its reasonable best efforts to obtain and furnish the approval of information required to be included by the Merger at SEC in the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the CompanyProxy Statement and, after consultation with Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement. Except for such portions as may relate to a Competing Proposal, the Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may adjourn receive from time to time from the SEC or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment its staff with respect to the Proxy Statement is provided to promptly after the Company’s stockholders within receipt of such comments, and any written or oral responses thereto. Except for such portions as may relate to a Competing Proposal, Parent, Purchaser and their counsel shall be given a reasonable amount of time opportunity to review any such written responses and the Company shall consider in advance of good faith all reasonable changes suggested by Parent in connection therewith. The Company, on the Stockholders’ Meetingone hand, (ii) if as of and Parent and Purchaser, on the time other hand, agree to promptly correct any information provided by it for which the Stockholders’ Meeting is originally scheduled (as set forth use in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either Statement if and to the extent that such information shall have become false or misleading in person any material respect or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if as otherwise required by applicable Law or Laws, and the Company further agrees to cause the Proxy Statement, as so corrected (iv) if in applicable), to be filed with the good faith judgment SEC and, if any such correction is made following the mailing of the board of directors of the Company (after consultation with legal counselProxy Statement as provided in Section 1.9(b)(ii), an adjournment or postponement mailed to holders of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject Shares, in each case as and to the provisions extent required by the Securities Exchange Act of this Agreement1934, as amended (the “Exchange Act”), or the SEC (or its staff). The Company will shall use its reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of have the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required Proxy Statement cleared by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsSEC as promptly as reasonably practicable.

Stockholders Meeting. The Company, acting through the Company shallBoard (or a committee thereof), shall as promptly as reasonably practicable following the date on which confirmation by the SEC (or that the staff of the SEC) confirms that it SEC has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Lawnecessary, including under the rules of The Nasdaq Capital Market and the Restated Certificate of IncorporationDGCL, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining approving and adopting this Agreement (including any adjournment or postponement thereof, the Requisite Stockholder Approval. Subject to “Stockholders Meeting”) and shall not, without the ability prior written consent of the board of directors of Parent, postpone, recess or adjourn such meeting; provided that the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c)may postpone, the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include recess or adjourn such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting meeting (i) as necessary to ensure that any required supplement or amendment to if on the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for date on which the Stockholders’ Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) ), the Company has not received proxies representing a sufficient number of Company Shares to obtain the Company Requisite Vote or there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ Stockholders Meeting; or (ii) if the failure to postpone, recess or adjourn the Stockholders Meeting would reasonably be expected to be a violation of applicable Law for the distribution of any required amendment or supplement to the Proxy Statement to be timely provided to the holders of Company Shares; provided that the Stockholders Meeting shall not be postponed, recessed or adjourned pursuant to this proviso to a date that is more than thirty (30) days after the date on which the Stockholders Meeting was originally scheduled without the prior written consent of Parent. The Company shall (a) subject to Section 6.1(c), include in the Proxy Statement the Recommendation and (b) subject to Section 6.1(c), use its reasonable best efforts to obtain the Company Requisite Vote, including to actively solicit (or cause to be solicited) proxies necessary to obtain the Company Requisite Vote; provided that the Company Board may (i) fail to include the Recommendation in the Proxy Statement distributed to stockholders; (ii) approve, endorse or recommend, or propose publicly to approve, endorse or recommend, or otherwise declare advisable to the stockholders of the Company, an Acquisition Proposal; (iii) if required by applicable Law following the commencement of a tender offer or exchange offer that constitutes an Acquisition Proposal, fail to publish, send or give to its stockholders, pursuant to Rule 14e-2 under the Exchange Act, within the ten (10) Business Day period (as specified in Rule 14e-2 under the Exchange Act) after such tender offer or exchange offer is first published, sent or given, or subsequently amended in any material respect, a statement recommending that stockholders reject such tender offer or exchange offer and affirming the Recommendation; or (iv) if in the good faith judgment formally resolve to effect or publicly announce an intention to effect any of the board of directors of foregoing, in each case prior to obtaining the Company Requisite Vote (a “Change of Recommendation”), if (x) (A) a bona fide Acquisition Proposal that was made after the date hereof and was not initiated, solicited, encouraged or facilitated in, and did not otherwise result from a, material violation of Section 6.1 is made to the Company and is not withdrawn and the Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel)counsel that such Acquisition Proposal constitutes a Superior Proposal or (B) there exists any event, development, circumstance, change, effect, condition or occurrence (other than an adjournment Acquisition Proposal) that was not known by the Company Board or, if known, the consequences of which were not known or postponement reasonably foreseeable, as of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions date of this Agreement, (y) the Company will use reasonable best efforts Board shall have determined in good faith, after consultation with its outside legal counsel, that the failure of the Company Board to solicit from effect a Change of Recommendation would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (z) (A) if such Change of Recommendation is made in response to an Acquisition Proposal, the Company complies with the provisions of Section 6.1(c) or (B) if such Change of Recommendation is not made in response to an Acquisition Proposal, the Company (x) delivers to Parent a written notice informing Parent that the Company Board proposes to take such action and the basis of the proposed action no less than four (4) Business Days before taking such action and (y) during such four (4) Business Day period, if requested by Parent, engages in good faith negotiations with Parent and its Representatives regarding any adjustments in the terms and conditions of this Agreement proposed by Parent so that such event, development, circumstance, change, effect, condition or occurrence would cease to warrant a Change of Recommendation. The Company shall keep Parent updated with respect to proxy solicitation results as reasonably requested by Parent. Notwithstanding anything to the contrary contained in this Agreement, if subsequent to the date of this Agreement the Company Board makes a Change of Recommendation, the Company nevertheless shall submit this Agreement to the holders of Company Common Stock proxies in favor of Shares for approval and adoption at the adoption of Stockholders Meeting unless and until this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsis terminated in accordance with its terms.

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to shall duly call, give notice of, convene and hold a meeting of its stockholders (including any adjournment or postponement thereof) (the “Stockholders’ Meeting”) as promptly as practicable after the date the Registration Statement is declared effective under the Securities Act (except as provided in this Section 7.03) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of voting on the Company Proposals. In connection with the Stockholders’ Meeting, subject to make an Adverse Recommendation Change in accordance with Section 6.6(c7.02(b), the board of directors of Company, acting through the Company Board, shall make the Company Recommendation with respect to (i) recommend the adoption of this Agreement and the approval of the transactions contemplated hereby, including other Company Proposals by the Merger, and shall include such recommendation Company’s stockholders in the Joint Proxy Statement. Parent shall vote /Prospectus, (ii) otherwise comply with all legal and Nasdaq requirements applicable to such meeting, (iii) regardless of whether or cause not there has been a Company Adverse Recommendation Change, use its reasonable best efforts to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, solicit from its stockholders proxies in favor of (it being understood that a proxy card will be deemed voted “in favor of” a matter to be acted upon by the Company’s stockholders if it provides the stockholder with the ability to either vote for, vote against or abstain from voting on, such matter) the adoption of this Agreement and the approval of the Merger at other Company Proposals and (iv) subject to the Stockholders’ Meeting parenthetical in the immediately preceding clause (iii), take all other actions reasonably necessary or advisable to secure the adoption of this Agreement and the approval of the Recapitalization if other Company Proposals by the same is submitted Company’s stockholders in order to satisfy the requirement of applicable Law and the rules and regulations of Nasdaq, including, without limitation, timely setting a record date, provided that nothing in this Section 7.03 shall prohibit the Company Board or any committee thereof from making a Company Adverse Recommendation Change in compliance with this Agreement. The Company shall keep the Investors reasonably updated with respect to proxy solicitation results as reasonably requested by the Investors, and shall direct its proxy soliciting agent to provide the Investors and their Representatives with the results of all proxy tabulations provided by such proxy soliciting agent to the holders of Company Common Stock for approval at the Stockholders’ MeetingCompany. Notwithstanding anything to the contrary contained in this Agreement, the The Company, after consultation with Parentacting through the Company Board, may shall not, without the prior written consent of the Investors, adjourn or postpone the Stockholders’ Meeting (i) as necessary Meeting; provided, however, the Company shall have the right to ensure that any required supplement adjourn or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of postpone the Stockholders’ Meeting: (1) after consultation with the Investors, for not more than two (ii2) periods not to exceed ten (10) Business Days each if as of on the time for date on which the Stockholders’ Meeting is originally scheduled then scheduled, the Company has not received proxies representing a sufficient number of shares of Company Common Stock to obtain the Stockholder Approval; (as set forth in 2) if on the Proxy Statement) date on which the Stockholders’ Meeting is then scheduled, there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ Meeting; or (3) after consultation with the Investors, if the failure to adjourn or postpone the Stockholders’ Meeting would reasonably be expected to be a violation of applicable Law for the distribution of any required amendment or supplement to the Joint Proxy Statement/Prospectus to be timely provided to the holders of Company Common Stock. Once the Company has established a record date for the Stockholders’ Meeting, the Company shall not change such record date or establish a different record date for the Stockholders’ Meeting without the prior written consent of the Investors (iii) if not to be unreasonably withheld, delayed or conditioned), unless required to do so by applicable Law or (iv) if in the good faith judgment Company’s organizational documents. Without the prior written consent of the board of directors of the Company (after consultation with legal counsel)Investors, an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated herebyother Company Proposals shall be the only matters (other than matters of procedure, including a motion to adjourn in accordance with the Mergerterms of this Agreement, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock matters required by applicable Law to be voted on by the rules Company’s stockholders in connection with the adoption of The Nasdaq Capital Market or applicable Laws this Agreement and approval of the other Company Proposals) that the Company shall propose to obtain such approvalsbe acted on by the stockholders of the Company at the Stockholders’ Meeting.

Stockholders Meeting. The Company shallshall call, hold and convene a meeting of its stockholders to consider the adoption of this Agreement, to be held as promptly as reasonably practicable following after the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approvalhereof. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with expressly permitted pursuant to Section 6.6(c)4.2(c) or this Section 5.3, (i) the board of directors Board shall recommend that the stockholders of the Company shall make the Company Recommendation with respect to vote in favor of the adoption of this Agreement (the “Company Recommendation”) at the Company’s stockholders’ meeting and the approval Board shall use its reasonable best efforts to solicit from stockholders of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, proxies in favor of the adoption of this Agreement and (ii) the approval Proxy Statement shall include a statement to the effect that the Board has recommended that the Company’s stockholders vote in favor of the Merger adoption of this Agreement at the StockholdersCompany’s stockholders’ Meeting meeting. The Board shall not (i) withhold, withdraw, modify or qualify (or publicly propose to withdraw, modify or qualify) in any manner adverse to Parent the Company Recommendation or (ii) adopt, approve or recommend, endorse or otherwise declare advisable the adoption of any Acquisition Proposal (any action described in clauses (i) or (ii) being referred to herein as a “Adverse Recommendation Change”); provided that, at any time prior to obtaining the Requisite Stockholder Vote, the Board may make an Adverse Recommendation Change only if the Board determines in good faith, after consultation with its outside legal advisors, that (A) the failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under Delaware law and (B) if such Adverse Recommendation Change is made in response to an Acquisition Proposal, the Company has complied with Section 4.2(c); provided that no Adverse Recommendation Change may be made in response to an Acquisition Proposal and the approval Company may not terminate this Agreement pursuant to Section 7.1(d) unless the Board determines that such Acquisition Proposal constitutes a Superior Proposal. In any case in which the Company makes an Adverse Recommendation Change pursuant to Section 4.2, unless this Agreement is terminated, (1) the Company shall nevertheless submit this Agreement to a vote of its stockholders and (2) the Recapitalization if Proxy Statement and any and all accompanying materials (including the same is submitted to proxy card (which shall provide that signed proxies which do not specify the holders manner in which the shares of Company Common Stock subject thereto are to be voted shall be voted “FOR” adopting this Agreement), the “Proxy Materials”)) shall be identical in form and content to Proxy Materials that would have been prepared by the Company had no Adverse Recommendation Change been made, except for approval at the Stockholders’ Meeting. Notwithstanding anything appropriate changes to the contrary contained disclosure in this Agreementthe Proxy Statement stating that such Adverse Recommendation Change has been made. If the Company has complied with its obligations pursuant to Section 4.2, the Company, after consultation with Parent, Company may adjourn or postpone the StockholdersCompany’s stockholders’ Meeting (i) as meeting to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingor, (ii) if as of the time for which the StockholdersCompany’s stockholders’ Meeting meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meetingsuch meeting; provided, (iii) if required by applicable Law however, that no adjournment may be to a date on or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject three Business Days prior to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies date set forth in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsSection 7.1(b)(ii).

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statementthis Agreement, take all action necessary in accordance with applicable Lawestablish a record date for, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for . At such Stockholders’ Meeting, unless the purpose Board of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors Directors of the Company to make an Adverse has made a Permitted Change of Recommendation Change in accordance compliance with Section 6.6(c)6.6, the board of directors of the Company shall make the Company Recommendation with respect recommend to its stockholders the adoption of this Agreement and the approval of the transactions contemplated herebyMerger and the Related Transactions (the “Company Recommendation”). Notwithstanding anything to the contrary contained in this Agreement, including prior to the Mergertermination of this Agreement, the obligation of the Company to call, give notice of, convene and shall include such recommendation in hold the Proxy Statement. Parent shall Stockholders’ Meeting and to hold a vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the Company’s stockholders on the adoption of this Agreement and the approval of the Merger and the FFELP Transaction at the Stockholders’ Meeting and shall not be limited or otherwise affected by the approval commencement, disclosure, announcement or submission to it of any Competing Proposal (whether or not a Superior Proposal), or by a Change of Recommendation. In any case in which the Recapitalization if Company makes a Change of Recommendation, (a) the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in shall nevertheless submit this Agreement, the Company, after consultation with Parent, may adjourn or postpone Merger and the Stockholders’ Meeting FFELP Transaction to a vote of its stockholders and (ib) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided and any and all accompanying materials (including the proxy card, the “Proxy Materials”) shall be identical in form and content to Proxy Materials that would have been prepared by the Company had no Change of Recommendation been made, except for appropriate changes to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth disclosure in the Proxy Statement) there are insufficient shares Statement stating that such Change of Company Common Stock represented (either in person Recommendation has been made and, if applicable, describing matters relating to the Superior Proposal or by proxy) other event giving rise to constitute a quorum necessary the Change of Recommendation to conduct business at the Stockholders’ Meeting, (iii) if extent required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject The Company agrees that, prior to the provisions termination of this Agreement, the Company will use reasonable best efforts it shall not submit to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote of its stockholders any Competing Proposal (whether or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market not a Superior Proposal) or applicable Laws propose to obtain such approvalsdo so.

Stockholders Meeting. The Company shallSeller shall use its best efforts, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Lawlaw and its certificate of incorporation and bylaws, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders the holders of Seller Common Stock (the “Stockholders’ "Stockholder Meeting”") as promptly as practicable for the purpose of obtaining considering and voting on approval and adoption of the Requisite Stockholder Approvaltransactions provided for in this Agreement, no later than March 31, 2002. Subject The board of directors of Seller shall (a) recommend that the holders of Seller Common Stock vote in favor of and approve the Merger and adopt this Agreement, and (b) use its best efforts to the ability of solicit such approvals; PROVIDED, HOWEVER, that the board of directors of Seller is not required to recommend that the Company holders of Seller Common Stock vote in favor of and approve the Merger and adopt this Agreement and solicit such approvals if and only to make an Adverse Recommendation Change in accordance with Section 6.6(c), the extent that there is a BONA FIDE written Acquisition Proposal and (i) the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the CompanySeller, after consultation with Parentoutside legal counsel, may adjourn or postpone in good xxxxx xxxxx such action to be inconsistent with the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount proper discharge of time in advance of the Stockholders’ Meeting, its fiduciary duties under applicable law and (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company Seller determines in good faith (after consultation with legal counsel)its financial advisor) that such Acquisition Proposal, an adjournment or postponement if accepted, is reasonably likely to be consummated, taking into account all legal, financial and regulatory aspects of the Stockholders’ Meeting would be consistent proposal and the person making the proposal and would, if consummated, result in a more favorable transaction than the transaction contemplated by this Agreement. Seller, in consultation with Purchaser, shall employ professional proxy solicitors to assist in contacting its stockholders in connection with soliciting favorable votes on the fiduciary duties Merger. Seller shall consult Purchaser with respect to the timing of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsStockholder Meetings.

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff In accordance with applicable Law and its certificate of the SEC) confirms that it incorporation and bylaws and unless this Agreement has no further comments on the Proxy Statement, take all action necessary been terminated in accordance with applicable LawARTICLE VIII, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to shall duly call, give notice of, convene and hold a meeting of its stockholders holders of Shares (including any adjournments or postponements thereof, the “Stockholders’ Stockholders Meeting”) solely for the purpose of obtaining considering and taking action upon this Agreement and use its reasonable best efforts to cause such Stockholders Meeting to occur as promptly as practicable after the date the Proxy Statement is cleared by the SEC to obtain the Requisite Stockholder ApprovalVote, regardless of whether the Company Board determines at any time that this Agreement or the Merger is no longer advisable. Unless this Agreement has been terminated in accordance with ARTICLE VIII, once the Stockholders Meeting has been called and noticed, the Company shall not postpone or adjourn the Stockholders Meeting without the consent of Parent, which shall not be unreasonably withheld or delayed (other than (i) for the absence of a quorum or (ii) to the extent required by applicable Law; provided that in the event that the Stockholders Meeting is delayed to a date after the End Date as a result of either (i) or (ii) above, then the End Date shall be extended to the tenth (10th) business day after such date). Subject to the ability of the board of directors of Section 6.2, the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company Board shall make recommend such adoption and shall include the Company Recommendation with respect and, subject to the consent of the Company’s financial advisors, the written opinions of the financial advisors, dated as of the date of this Agreement, that, as of such date, the Per Share Merger Consideration is fair, from a financial point of view, to the Company’s stockholders in the Proxy Statement and shall use its reasonable best efforts to solicit such adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, Merger and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action reasonably necessary or advisable to secure the vote or consent of holders of Company Common stock stockholders required by applicable Law to effect the rules of Merger. The Nasdaq Capital Market or applicable Laws Company shall keep Parent updated with respect to obtain such approvalsproxy solicitation results to the extent reasonably requested by Parent.

Stockholders Meeting. The Company shall, (a) shall as promptly as reasonably practicable following (and in any event within five (5) Business Days) after the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market NASDAQ and the Restated Certificate of Incorporation, as amended, Incorporation and the Bylaws, as amended, of the Company Bylaws to establish a record date and duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) Meeting for the purpose of obtaining the Requisite Stockholder Approval. Subject , which Stockholders’ Meeting, except as may be required by applicable Law or an Order of any Governmental Authority, shall be set for a date no later than 30 calendar days following the date the Proxy Statement is mailed to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c)Company’s stockholders and (b) shall not postpone, the board of directors of the Company shall make the Company Recommendation with respect recess or adjourn such meeting except pursuant to the adoption of this Agreement and the approval of the transactions contemplated herebyimmediately following sentence; provided, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at that the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted shall in no event be postponed, recessed or adjourned pursuant to the holders of Company Common Stock for approval at following sentence to a date that is more than 30 calendar days after the date on which the Stockholders’ MeetingMeeting was (or was required to be) originally scheduled without the prior written consent of Parent (solely with respect to clause (i) in such following sentence, such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary contained set forth in this Agreement, any adjournments or postponements of such meeting shall require the prior written consent of Parent, except that (i) the Company may adjourn the Stockholder Meeting in the case and then only to the extent that such adjournment is required in order to file and mail any supplemental or amended disclosure which the SEC (or the staff of the SEC) has instructed the Company is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders’ Meeting, and (ii) the Company, after consultation with Parent, may (or upon the written request of Parent, shall) adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are either (A) insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law Meeting or (ivB) if in insufficient affirmative votes to adopt this Agreement; provided, that the good faith judgment of the board of directors of record date shall not be changed without Parent’s prior written consent. Unless the Company (after consultation Board shall have effected an Adverse Recommendation Change as permitted in accordance with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this AgreementSection 5.6, the Company will shall use reasonable best efforts to solicit from holders of Company Common Stock obtain the Requisite Stockholder Approval including by actively soliciting proxies in favor of the adoption of this Agreement and shall ensure that all proxies solicited in connection with the approval Stockholders’ Meeting are solicited in compliance with all applicable Laws and all rules of NASDAQ. For the avoidance of doubt, unless this Agreement is validly terminated in accordance with Section 7.1, an Adverse Recommendation Change (or a proposed or announced intention to do so) shall not relieve the Company of its obligation hereunder to give notice of, convene and hold the Stockholders’ Meeting or to provide Parent with such information and cooperation to permit Parent to solicit proxies to obtain the Requisite Stockholder Approval. The Company shall, upon the reasonable request of Parent, advise Parent at least on a daily basis on each of the last ten (10) Business Days prior to the scheduled date of the Stockholders’ Meeting as to the aggregate tally of affirmative proxies received by the Company with respect to the Requisite Stockholder Approval. Without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed), except as required by applicable Law, the adoption of this Agreement, the transactions contemplated hereby, hereby (including the Merger, ) and related matters shall be the only matter (other than procedural matters) which the Company shall propose to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required be acted on by the rules stockholders of The Nasdaq Capital Market or applicable Laws to obtain such approvalsthe Company at the Stockholders’ Meeting.

Stockholders Meeting. The Company shallwill take, in accordance with Law and its certificate of incorporation and by-laws, all action necessary to convene a meeting of holders of Shares (the “Stockholders Meeting”) as promptly as reasonably practicable following after the S-4 Registration Statement is declared effective, and in any event will use its reasonable best efforts (i) to convene the Stockholders Meeting not later than 120 days after the date on which the SEC of this Agreement (or the staff or, if later, not more than 60 days after effectiveness of the SEC) confirms that it has no further comments on the Proxy S-4 Registration Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect (ii) to consider and vote upon the adoption of this Agreement and (iii) to cause such vote to be taken and completed (collectively, the approval “Stockholder Meeting Covenant”). The Board of Directors of the transactions contemplated herebyCompany shall not make a Change In Recommendation unless (i) the Company shall have provided written notice to Parent that the Board of Directors of the Company intends to take such action, including the MergerNotice Period shall have elapsed since the date on which Parent received such notice (it being understood that the Notice Period in this circumstance shall be shortened by the minimum amount necessary for the Company or its Board of Directors to comply with any applicable time periods under Sections 14d-9 and 14e-2 of the Exchange Act, to the extent relevant) and the Company shall include have complied in all material respects with the applicable provisions of Section 6.2(c), (ii) the Board of Directors of the Company shall have determined in good faith, after consulting with its outside legal counsel and financial advisors and taking into account any Revised Terms, that it must take such recommendation action in order to comply with its fiduciary duties under Law and (iii) if the Change In Recommendation is being made primarily as a result of an Acquisition Proposal, such Acquisition Proposal is a Superior Proposal. Unless and until the Board Recommendation has been withdrawn as permitted by this Agreement, the Board Approval and Board Recommendation shall be included in the Prospectus/Proxy Statement. Parent Statement and the Board of Directors of the Company shall vote (or cause take all lawful action to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of solicit the adoption of this Agreement and by the approval holders of Shares by the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted Company Requisite Vote. The Company shall submit this Agreement to the holders of Company Common Stock Shares for approval adoption by them at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Stockholders Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will and shall use its reasonable best efforts to solicit from holders do so within the time period prescribed herein) whether or not the Board of Company Common Stock proxies in favor of Directors makes a Change In Recommendation after the adoption date of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsAgreement.

Stockholders Meeting. The Company shallSeller will, as promptly soon as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy StatementExecution Date, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Stockholders Meeting”) for the purpose of obtaining seeking the Requisite Stockholder ApprovalApproval and, subject to Section 6.6, will use its reasonable best efforts to solicit approval of this Agreement. Subject Seller will schedule the Stockholders Meeting to the ability be held within twenty-five (25) Business Days of the board initial mailing of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (Except as set forth on Schedule 6.8, any adjournments or postponements of the Stockholders Meeting shall require the prior written consent of Purchaser (such consent not to be unreasonably withheld, conditioned or delayed). Seller, in consultation with Xxxxxxxxx, shall set a record date for Persons entitled to notice of, and to vote at, the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Stockholders Meeting, and, except as set forth on Schedule 6.8, shall not change such record date without the prior written consent of Purchaser (iii) if required by applicable Law such consent not to be unreasonably withheld, conditioned or (iv) if delayed). Seller shall conduct a broker search in the good faith judgment accordance with Rule 14a-13 of the board of directors of the Company (after Exchange Act on a date selected by Seller in consultation with legal counsel)Purchaser to enable such record date to be set within sixty-one (61) days following the Execution Date. Unless the Board shall have made a Change in Recommendation, an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will Seller shall use reasonable best efforts to obtain the Stockholder Approval, including to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the Asset Sale and the other transactions contemplated herebyby this Agreement. Seller shall ensure all proxies solicited by Seller and its Representatives in connection with the Stockholders Meeting are solicited in compliance with all applicable Law. Seller shall, including upon the Mergerreasonable request of Purchaser, and advise Purchaser at least on a daily basis on each of the last seven (7) Business Days prior to take all the date of the Stockholders Meeting as to the aggregate tally of proxies received by Seller with respect to the Stockholder Approval. The Stockholder Approval matters shall be the only matters (other action necessary or advisable than a customary adjournment proposal) that Seller shall propose to secure be acted on by the vote or stockholders of Seller at the Stockholders Meeting without the prior written consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market Purchaser (such consent not to be unreasonably withheld, conditioned or applicable Laws to obtain such approvalsdelayed).

Stockholders Meeting. The Company, acting through the Company shallBoard (or a duly appointed committee thereof), as shall promptly as reasonably practicable following the date on which the Company is informed that the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy StatementStatement (the “SEC Clearance Date”), use reasonable best efforts to take all action necessary in accordance with applicable Lawrequired under the DGCL, the rules of The Nasdaq Capital Market Company Charter, the Company By-laws and the Restated Certificate applicable requirements of Incorporation, as amended, Nasdaq necessary to promptly and the Bylaws, as amended, of the Company to duly call, call and give notice of, convene and hold as promptly as practicable a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining approving and adopting this Agreement (including any adjournment or postponement thereof, the Requisite Stockholder Approval. Subject to “Stockholders Meeting”); provided that the ability Stockholders Meeting shall be duly called and notice thereof given within five (5) business days of the board of directors of SEC Clearance Date and set to be held on a date not later than thirty (30) days following the date on which such notice is given; provided, however, that the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c)may postpone, the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include recess or adjourn such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting meeting solely (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingextent required by Law, (ii) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Company Requisite Vote or (iii) if as of the time for which the Stockholders’ Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) and voting to constitute a quorum is necessary to conduct the business at of the Stockholders’ Stockholders Meeting. The Company, acting through the Company Board (or a committee thereof), shall, subject to Section 4.03, (iiia) if required by applicable Law or (iv) if make the Company Board Recommendation and include in the good faith judgment Proxy Statement the Company Board Recommendation and, subject to the consent of the board of directors Financial Advisor, the written opinion of the Company Financial Advisor, and (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of b) use its reasonable best efforts to obtain the Company under applicable LawRequisite Vote. Subject Notwithstanding anything to the provisions of contrary contained in this Agreement, the Company will use reasonable best efforts shall not be required to solicit from holders of Company Common Stock proxies in favor of hold the adoption of Stockholders Meeting if this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsis validly terminated.

Stockholders Meeting. The Company shallCompany, acting through its Board of Directors (or a committee thereof), shall as promptly as reasonably practicable following the date on which the Company is made aware that the SEC (will not review the Proxy Statement or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Lawrequired under the MGCL, the rules of The Nasdaq Capital Market Company Charter, the Company Bylaws and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, applicable requirements of the Company NYSE necessary to promptly and duly call, give notice of, convene and hold as promptly as reasonably practicable a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining (a) approving the Requisite Stockholder Approval. Subject to the ability Merger and (b) if and only if required or otherwise mutually agreed, a vote upon other matters of the board type customarily brought before a meeting of directors of the Company to make an Adverse Recommendation Change stockholders in accordance connection with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of a merger or the transactions contemplated herebyby a merger agreement (including any adjournment or postponement thereof, including the Merger“Stockholders Meeting”); provided that the Company may (and, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval written request of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may shall) postpone, recess or adjourn or postpone the Stockholders’ Meeting such meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingextent required by Law or duty, (ii) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Company Requisite Vote, (iii) if as of the time for which the Stockholders’ Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business at of the Stockholders’ Meeting, (iii) if required by applicable Law Stockholders Meeting or (iv) if in to allow reasonable additional time for the good faith judgment filing and dissemination of any supplemental or amended disclosure which the board Board of directors Directors of the Company (has determined in good faith after consultation with legal counsel), an outside counsel is necessary under applicable Law or duty and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting; provided that such adjournment or postponement shall not delay the Stockholders Meeting to a date on or after the fifth (5th) Business Day preceding the End Date, unless otherwise required by applicable Law. The Company, acting through its Board of Directors (or a committee thereof), shall (a) include in the Stockholders’ Meeting would be consistent with Proxy Statement the fiduciary duties Recommendation (subject to Section 6.1(b)(iv)), and, subject to the consent of X.X. Xxxxxx, the members written opinion of X.X. Xxxxxx, and (b) subject to Section 6.1(b)(iv), use its reasonable best efforts to obtain the board Company Requisite Vote (it being understood that the foregoing shall not require the Board of directors Directors of the Company to recommend in favor of the approval of the Merger if a Change of Recommendation has been effected in accordance with Section 6.1(c)(i) or Section 6.1(c)(ii)); provided that the Board of Directors of the Company may (A) fail to include the Recommendation in the Proxy Statement, (B) withdraw, modify, qualify, amend or change the Recommendation, (C) fail to recommend in a Solicitation/Recommendation Statement on Schedule 14D-9 against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D promulgated under applicable Law. Subject to the provisions Exchange Act for outstanding shares of Common Stock (other than by Parent or an Affiliate of Parent), in each case, within ten (10) Business Days after the commencement thereof, it being understood and agreed that, for all purposes of this Agreement, a communication by the Board of Directors of the Company will to the stockholders of the Company in accordance with Rule 14d-9(f) of the Exchange Act, or any similar communication to the stockholders of the Company in connection with the commencement of a tender offer or exchange offer, shall not, in and of itself, be deemed to constitute a Change of Recommendation (so long as any such disclosure (x) includes an express reaffirmation of the Recommendation, without any amendment, withdrawal, alteration, modification or qualification thereof and (y) does not include any statement that constitutes, and does not otherwise constitute, a Change of Recommendation), or (D) formally resolve to effect or publicly announce an intention or resolution to effect any of the foregoing (any of the actions described in the foregoing clauses (A) through (D), a “Change of Recommendation”), in each case solely in accordance with the terms and conditions of Section 6.1(c)(i) or Section 6.1(c)(ii) and, following such Change of Recommendation, may fail to use such reasonable best efforts to solicit from holders efforts; provided, however, that, for the avoidance of Company Common Stock proxies in favor doubt, none of (I) the determination by the Board of Directors of the adoption Company that an Acquisition Proposal constitutes a Superior Proposal, (II) the taking of any action by the Company, its Board of Directors or any of its Representatives permitted by Section 6.1(b) or (III) the delivery by the Company to Parent of any notice contemplated by Section 6.1(c)(i) or Section 6.1(c)(ii), in each case so long as the Company or the Board of Directors of the Company does not intentionally issue any public statement to such effect and does not otherwise effect a Change of Recommendation thereby, will in and of itself constitute a Change of Recommendation. Notwithstanding anything to the contrary herein, unless this Agreement has been terminated in accordance with its terms, the Stockholders Meeting shall be convened and the approval Merger shall be submitted to the stockholders of the transactions contemplated herebyCompany at the Stockholders Meeting, and nothing contained herein shall be deemed to relieve the Company of such obligation, including the Merger, and to take all other action necessary or advisable to secure the vote or consent as a result of holders a Change of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsRecommendation.

Stockholders Meeting. The Subject to fiduciary obligations under applicable Law, if adoption of this Agreement by the holders of Shares is required under applicable Law and Parent has not notified the Company shallpursuant to Section 7.4(b), as promptly as reasonably practicable following the Company shall have the right any time after February 8, 2011 to (and Parent and Merger Sub shall have the right, at any time after the later of February 8, 2011 and the date on which all the SEC (conditions set forth in Sections 8.2(c) and 8.3(c) are satisfied or waived, to request in writing that the staff Company, and upon receipt of such written request the SECCompany shall as promptly as practicable) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market the NYSE and the Restated Certificate certificate of Incorporation, as amended, incorporation and the Bylaws, as amended, bylaws of the Company Company, to duly call, give notice of, convene and hold a meeting of its stockholders holders of Shares (the “Stockholders’ Stockholders Meeting”) as promptly as practicable after the date of mailing of the Proxy Statement, to consider and vote upon the adoption of this Agreement; provided, however, for the purpose avoidance of obtaining doubt, the Requisite Stockholder ApprovalCompany may postpone, recess or adjourn the Stockholders Meeting, but no longer than reasonably necessary, (i) with the consent of Parent; (ii) for the absence of a quorum; (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Board of Directors of the Company has determined in good faith after consultation with outside counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting; (iv) if required by Law; or (v) if the Company has provided a written notice to Parent and Merger Sub pursuant to Section 7.2(e) that it intends to take action pursuant to Section 9.3(a) and the deadline contemplated by Section 7.2(e) with respect to such notice has not been reached. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c7.2(e), 7.2(f) and 9.3(a), the board Board of directors Directors of the Company shall make the Company Recommendation with respect to the recommend adoption of this Agreement and by the approval holders of the transactions contemplated herebyShares, including the Merger, and shall include such recommendation the Company Recommendation in the Proxy Statement. Parent Statement and shall vote (or cause take all reasonable lawful action to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the solicit adoption of this Agreement by the holders of Shares. Notwithstanding any Change in Recommendation, unless this Agreement is terminated pursuant to, and in accordance with, Article IX or Parent has notified the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is Company pursuant to Section 7.4(b), this Agreement shall be submitted to the holders of Company Common Stock for approval Shares at the Stockholders’ Meeting. Notwithstanding anything to Stockholders Meeting for the contrary contained in purpose of adopting this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.

Stockholders Meeting. The Company shall, as promptly (a) As soon as reasonably practicable following the date on of this Agreement, the Company shall prepare, and the Company shall file with the SEC, the Proxy Statement. The Company shall cause the Proxy Statement to be mailed to the Stockholders as promptly as practicable after clearance by the SEC. Parent shall furnish to the Company all information as may be reasonably requested by the Company in connection with the preparation, filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, the Proxy Statement will be made by the Company without providing Parent a reasonable opportunity to review and comment thereon. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, directors or officers, should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, so that such document would 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 are made, not misleading, the party which discovers such information shall promptly notify the other party hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC (and, to the extent required by Law, disseminated to the stockholders of the Company. The parties shall notify each other promptly of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement or for additional information and shall supply each other with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or the staff of the SEC) confirms that it has no further comments , on the Proxy Statementother hand, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including Proxy Statement or the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.

Stockholders Meeting. The Subject to Section 5.3, the Company shallwill take, in accordance with applicable Law and its certificate of incorporation and bylaws, all action necessary to convene a meeting of holders of Company Common Stock (the “Stockholders Meeting”) as promptly as reasonably practicable following after the date on which of mailing of the SEC Proxy Statement (and in any event no more than 25 Business Days) to consider and vote upon the adoption of this Agreement. Without limiting the generality of the foregoing, but subject to Section 5.3, the Company’s obligations pursuant to the first sentence of this Section 5.5 will not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal or the staff Company Board of Directors making a Company Adverse Recommendation Change. Subject to Section 5.3(f), unless the SEC) confirms that it has no further comments on Company shall have made a Company Adverse Recommendation Change, the Company Board of Directors will use its reasonable best efforts to solicit the Requisite Company Vote at the Stockholders Meeting. Prior to the mailing of the Proxy Statement, take all action necessary the Company will engage a proxy solicitor that is reasonably satisfactory to Parent. The Company shall keep Parent reasonably informed regarding its solicitation efforts and proxy tallies following the mailing of the Proxy Statement, including by allowing Parent and its Representatives to participate in accordance any substantive meeting or discussion with applicable Lawsuch proxy solicitor, in each case, to the extent practicable; provided, however, that the foregoing right for Parent and its Representatives to participate in meetings or discussions shall not apply from and after a Company Adverse Recommendation Change. Notwithstanding anything in this Agreement to the contrary, the rules of The Nasdaq Capital Market and Company may only postpone or adjourn the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company Stockholders Meeting (i) to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) solicit additional proxies for the purpose of obtaining the Requisite Stockholder Approval. Subject Company Vote, (ii) for the absence of a quorum, (iii) to allow reasonable additional time for the ability filing and/or mailing of the board of directors of any supplemental or amended disclosure that the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, has determined after consultation with Parent, may adjourn outside legal counsel is necessary under applicable Law and for such supplemental or postpone the Stockholders’ Meeting (i) as necessary amended disclosure to ensure that any required supplement or amendment to the Proxy Statement is provided to be disseminated and reviewed by the Company’s stockholders within a reasonable amount of time in advance of prior to the Stockholders’ Stockholders Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or written consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsParent, which may be withheld in its sole discretion.

Stockholders Meeting. The Subject to the terms and conditions of this Agreement, the Company, acting through the Company shallBoard, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, shall take all action necessary actions in accordance with applicable Lawlaw, its Certificate of Incorporation and By-laws and the rules of The Nasdaq Capital Stock Market to promptly and the Restated Certificate of Incorporationduly fix a record date for, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting as promptly as practicable, and not later than the 30th calendar day immediately following the date of its stockholders (the “Stockholders’ Meeting”) mailing of the Proxy Statement absent any legal restraint that prevents such action, the Company Meeting for the purpose of obtaining considering and voting upon the Requisite Stockholder ApprovalCompany Voting Proposal. Without limiting the generality of the foregoing, and subject to Section 6.1, the Company agrees that its obligations pursuant to this Section 6.5 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Acquisition Proposal. Subject to Section 6.1, (a) the ability of the board of directors Company Board shall recommend adoption of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), Voting Proposal by the board of directors stockholders of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent Statement and (b) the Company Board shall not withhold, withdraw or modify, or propose or resolve to withhold, withdraw or modify in a manner adverse to the Parent, the recommendation of the Company Board that the Company’s stockholders vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement Company Voting Proposal. Subject to Section 6.1, the Company shall take all action that is both reasonable and the approval lawful to solicit from its stockholders proxies in favor of the Merger at Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the Stockholders’ Meeting and the approval vote of the Recapitalization if stockholders of the same is submitted Company required by the rules of The Nasdaq Stock Market or the DGCL to the holders of Company Common Stock for approval at the Stockholders’ Meetingobtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with the 50 Parent, may or, if requested by the Parent, shall adjourn or postpone the Stockholders’ Company Meeting (i) as to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingor, (ii) if as of the time for which the Stockholders’ Company Meeting is originally scheduled (as set forth in the Proxy Statement) ), there are insufficient shares of Company Common Stock represented (either in person or by proxy) affirmative votes to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of duly authorize the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsVoting Proposal.

Stockholders Meeting. The Regardless of whether the Company shallBoard determines at any time that this Agreement is no longer advisable or recommends that the Company’s stockholders reject it or whether any other Change of Recommendation has occurred at any time, in accordance with Section 6.2, but subject to the Company’s rights under Sections 8.1, 8.2 and 8.3, the Company shall (a) establish a record date (which will be as promptly as reasonably practicable following the date on which the SEC (or the staff of the SECthis Agreement) confirms that it has no further comments on the Proxy Statementfor, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold hold, a meeting of its stockholders (the “Stockholders’ Stockholders Meeting”) ), for the purpose of obtaining the Requisite Stockholder Approval. Subject Company Vote and (b) use its reasonable best efforts to cause the Stockholders Meeting to occur within 30 days immediately following the date on which the Proxy Statement is mailed to the ability of Company’s stockholders (unless otherwise consented to in writing by Parent (such consent not to be unreasonably withheld, delayed or conditioned) and if such calendar day is not a Business Day, on the board of directors of first Business Day subsequent to such calendar day); provided that, (i) the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect may postpone or adjourn such meeting to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Companyextent that it has reasonably determined, after consultation with Parentoutside legal counsel, may adjourn that such postponement or postpone the Stockholders’ Meeting (i) as adjournment is necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Stockholders Meeting, ; (ii) if as of the time for which the Stockholders’ Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented Shares present (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ MeetingStockholders Meeting or insufficient votes in favor of adoption of this Agreement to obtain the Requisite Company Vote, the Company may postpone or adjourn the Stockholders Meeting to a date that is a Business Day and no more than 30 days after the previous meeting date, as reasonably determined by the Company; and the Company shall use its commercially reasonable efforts during such period to obtain such a quorum as promptly as practicable; and (iii) if required by applicable Law the Company may adjourn or (iv) if postpone the Stockholders Meeting until the fourth Business Day after the expiration of any Change of Recommendation Notice Period; provided, further, that, in the good faith judgment of event that during the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject five Business Days prior to the provisions of this Agreementdate that the Stockholders Meeting is then scheduled to be held, the Company delivers a notice of an intent to make a Change of Recommendation in accordance with Section 6.2(d), Parent may direct the Company to adjourn or postpone the Stockholders Meeting for up to 10 Business Days and the Company will promptly, and in any event no later than the next Business Day, adjourn or postpone the Stockholders Meeting in accordance with Parent’s direction. Once the Company has established a record date for the Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Stockholders Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). Unless the Company Board shall have effected a Change of Recommendation in accordance with Section 6.2, the Company Board shall make the Company Recommendation and the Company shall use its reasonable best efforts to solicit from holders obtain the Requisite Company Vote. Without the prior written consent of Company Common Stock proxies in favor of Parent, the adoption of this Agreement and the approval of the transactions contemplated hereby, including by this Agreement will be the Merger, and only matters (other than related procedural matters) that the Company will propose to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required be acted on by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsCompany’s stockholders at the Stockholders Meeting.

Stockholders Meeting. The Company, acting through the Company shallBoard (or a committee thereof), shall as promptly soon as reasonably practicable following the date on which confirmation by the SEC (or that the staff of the SEC) confirms that it SEC has no further comments on the Proxy Statement, take all reasonable action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining approving and adopting this Agreement (including any adjournment or postponement thereof, the Requisite Stockholder Approval. Subject to the ability of the board of directors of “Stockholders Meeting”) and shall not postpone, recess or adjourn such meeting; provided that the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c)may postpone, the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include recess or adjourn such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingextent required by applicable Law, (ii) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Company Requisite Vote, (iii) if as of the time for which the Stockholders’ Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business at of the Stockholders’ Meeting, (iii) if required by applicable Law Stockholders Meeting or (iv) if to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure which the Company Board has determined in the good faith judgment of the board of directors of the Company (after consultation with legal counseloutside counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting to the extent so determined to be necessary; provided that the Stockholders Meeting shall not be postponed, recessed or adjourned pursuant to this proviso to a date that is more than 30 days after the date on which the Stockholders Meeting was originally scheduled without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). The Company, acting through the Company Board (or a committee thereof), an adjournment or postponement shall (a) subject to Section 6.1(c), include in the Proxy Statement the Recommendation, (b) include the written opinion of the Stockholders’ Meeting would be consistent with the fiduciary duties Financial Advisor, dated as of the members of the board of directors of the Company under applicable Law. Subject to the provisions date of this Agreement, that, as of such date, the Company will Per Share Merger Consideration is fair, from a financial point of view, to the holders of the Common Stock (other than Parent and its affiliates) and (c) subject to Section 6.1(c), use its reasonable best efforts to obtain the Company Requisite Vote, including to actively solicit from holders of proxies necessary to obtain the Company Common Stock proxies Requisite Vote; provided that the Company Board may fail to include the Recommendation in favor the Proxy Statement or withdraw, modify or change the Recommendation, or formally resolve to effect or publicly announce an intention to effect any of the adoption foregoing (a “Change of Recommendation”) and, following such Change of Recommendation, shall no longer be obligated to use its reasonable best efforts to obtain the Company Requisite Vote (including no longer being obligated to actively solicit proxies necessary to obtain the Company Requisite Vote, provided, that, the Company shall provide Parent with such information and cooperation to permit Parent to solicit such proxies, and provided, further, that the Company shall take all reasonable action necessary to duly call, give notice of, convene and hold the Stockholders Meeting), if (x) (A) a bona fide Acquisition Proposal that was not initiated, solicited, encouraged or facilitated in violation in any material respect of this Agreement is made to the Company and the approval Company Board determines in good faith, after consultation with its financial advisor and outside legal counsel that such Acquisition Proposal constitutes a Superior Proposal or (B) there exists any event, development, change, effect or occurrence that was not known by the Company Board or, if known, the consequences of which were not known or reasonably foreseeable, as of the transactions contemplated herebydate of this Agreement, including (y) if it shall have determined in good faith, after consultation with outside legal counsel to the MergerCompany, that the failure of the Company Board to effect a Change of Recommendation would be reasonably likely to be inconsistent with its fiduciary duties under applicable Law and (z)(A) if such Change of Recommendation is made in response to an Acquisition Proposal, the Company complies with the provisions of Section 6.1(c) or (B) if such Change of Recommendation is not made in response to an Acquisition Proposal, the Company delivers to Parent a written notice informing Parent that the Company Board proposes to take all other such action necessary or advisable and the basis of the proposed action no less than three Business Days before taking such action. Notwithstanding anything to secure the vote or consent contrary contained in this Agreement, (a) the Company shall not be required to hold the Stockholders Meeting if this Agreement is terminated in accordance with its terms and (b) even if subsequent to the date of this Agreement the Company Board makes a Change of Recommendation, the Company nevertheless shall submit this Agreement to the holders of Company Common stock required by Shares for approval and adoption at the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsStockholders Meeting unless and until this Agreement is terminated in accordance with its terms.

Stockholders Meeting. The Company (a) If required by applicable law in order to consummate the Merger, the Company, acting through its Board of Directors, shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to law: (i) duly call, give notice of, convene and hold a special meeting of its stockholders (the “Stockholders’ "Special Meeting”") as promptly as practicable following the acceptance for payment and purchase of Shares by the Purchaser pursuant to the Offer for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement considering and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and taking action upon the approval of the Merger at the Stockholders’ Meeting and the approval adoption of this Agreement; 5 11 (ii) prepare and file with the Recapitalization if the same is submitted SEC a preliminary proxy or information statement relating to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything Merger and this Agreement and use its best efforts, subject to the contrary contained in terms of this Agreement, including Section 5.3(b) (x) to obtain and furnish the Companyinformation required to be included by the SEC in the Proxy Statement (as hereinafter defined) and, after consultation with Parent, may adjourn to respond promptly to any comments made by the SEC with respect to the preliminary proxy or postpone information statement and cause a definitive proxy or information statement, including any amendment or supplement thereto (the Stockholders’ Meeting (i"Proxy Statement") as necessary to ensure be mailed to its stockholders, provided that any required no amendment or supplement or amendment to the Proxy Statement is provided will be made by the Company without consultation with Parent and its counsel and (y) to obtain the necessary approvals of the Merger and this Agreement by its stockholders; and (iii) subject to the Company’s stockholders within a reasonable amount terms of time in advance of the Stockholders’ Meetingthis Agreement including Section 5.3(b), (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth include in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at Statement the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment recommendation of the board Board of directors Directors that stockholders of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies vote in favor of the approval of the Merger and the adoption of this Agreement Agreement. (b) Parent shall vote, or cause to be voted, all of the Shares then owned by it, the Purchaser or any of its other Subsidiaries and affiliates in favor of the approval of the transactions contemplated hereby, including Merger and the Merger, approval and to take all other action necessary or advisable to secure the vote or consent adoption of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.this Agreement. Section 1.12

Stockholders Meeting. (a) The Company shall, as promptly as reasonably practicable following (and, in the date on which case of clauses (i) and (ii), in no event later than ten (10) Business Days) after the SEC (or the staff of the SEC) confirms that it has no further comments on on, or otherwise clears, the Schedule 13E-3 and the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold (i) establish a record date for a meeting of its stockholders the Stockholders (such meeting or any adjournment or postponement thereof, the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject voting to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of approve and adopt this Agreement and the approval of the transactions contemplated herebyTransactions, including the Merger, and shall include such recommendation in accordance with the Proxy Statement. Parent shall vote DGCL, (ii) mail or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Submailed the definitive Proxy Statement, if any, in favor of the adoption a copy of this Agreement or a summary thereof and the approval a copy of Section 262 of the Merger at DGCL (relating to appraisal rights) to the Stockholders’ Meeting and the approval Stockholders as of the Recapitalization if the same is submitted to the holders of Company Common Stock record date established for approval at the Stockholders’ Meeting. Notwithstanding anything ; provided that the Company shall not be required to mail the contrary contained in this AgreementProxy Statement on or before the Go-Shop Period End Date, the Company, after consultation with Parent, may adjourn or postpone and (iii) duly convene and cause to occur the Stockholders’ Meeting (i) as necessary to ensure Meeting; provided, that any required supplement the Company may postpone or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of adjourn the Stockholders’ Meeting, (ii1) with the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned), (2) if as of at the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) proceeds to business there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv3) if to allow reasonable time for the filing and mailing of any supplemental or amended disclosure, which the Company Board has determined in the good faith judgment of the board of directors of the Company (after consultation with legal counsel)outside counsel that is necessary under applicable Laws, an adjournment and for such supplemental or postponement of amended disclosure to be disseminated and reviewed by the Stockholders prior to the Stockholders’ Meeting. Unless this Agreement has been terminated in accordance with its terms, this Agreement shall be submitted to the Stockholders at the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of whether or not a Change in the Company under applicable Law. Subject Recommendation in response to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsan Intervening Event shall have occurred.

Stockholders Meeting. The Subject to Sections 5.2(d), 5.2(e) and 5.3, the Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, shall take all action reasonable actions necessary in accordance with applicable Law, its certificate of incorporation and bylaws and the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company NYSE to duly call, give notice of, convene and hold a meeting of its stockholders holders of Shares (the “Stockholders’ Meeting”) for the purpose of obtaining the Company Requisite Stockholder ApprovalVote, as soon as reasonably practicable after the date on which the SEC staff advises that it has no further comments on the Proxy Statement; provided, however, that in no event shall the Company be required to convene and hold the Stockholders’ Meeting earlier than the third Business Day following the Excluded Party Termination Fee End Date. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c5.2(d), the board of directors of the Company shall make the Company Recommendation with respect use its reasonable best efforts to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, solicit from its stockholder proxies in favor of the adoption of this Agreement and the secure any approval of its stockholders that is required by the DGCL and any other applicable Law to effect the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ MeetingTransactions. Notwithstanding anything to the contrary contained in this Agreement, the CompanyCompany may adjourn, after consultation with Parent, may adjourn recess or postpone the Stockholders’ Meeting from time to time (ia) as with the prior written consent of Parent; (b) to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement required by applicable Law (as determined by the Board of Directors of the Company (acting upon the affirmative recommendation of the Special Committee) in good faith after consultation with its outside legal counsel) is provided to the Company’s stockholders within of the Company a reasonable amount of time in advance of the Stockholders’ Meeting to permit such stockholders to review such supplement or amendment prior to the Stockholders’ Meeting, ; (iic) if as of the time for at which the Stockholders’ Meeting is originally scheduled to be held, (as set forth in the Proxy Statementx) there are insufficient shares is an absence of Company Common Stock represented a quorum (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ Meeting, or (iiiy) it is necessary to solicit additional proxies in order to obtain the Company Requisite Vote; or (d) if required by applicable Law or (iv) if in the good faith judgment any court of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalscompetent jurisdiction.

Stockholders Meeting. The Company shallshall call a special meeting of its stockholders or present the proposal at its next annual meeting of stockholders, as promptly as reasonably practicable following the date Closing, but in no event later than 75 days after the Closing, to vote on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders proposal (the “Stockholders’ MeetingStockholder Proposal”) to approve the conversion of the Preferred Shares into Common Stock for purposes of Rule 5635 of the purpose NASDAQ Listing Rules (such approval of obtaining the Requisite Stockholder Proposal, “Stockholder Approval”). Subject to the ability The Board of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors Directors of the Company shall make the Company Recommendation with respect recommend to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include Company’s shareholders that such recommendation in the Proxy Statement. Parent shall shareholders vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement Stockholder Proposal. In connection with such meeting, the Company shall promptly prepare and file (but in no event more than 15 Business Days after the approval Closing Date) with the Commission a preliminary proxy statement, shall use its reasonable best efforts to respond to any comments of the Merger at the StockholdersCommission or its staff and to cause a definitive proxy statement related to such shareholders’ Meeting and the approval of the Recapitalization if the same is submitted meeting to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided be mailed to the Company’s stockholders within a reasonable amount of time in advance of shareholders not more than 10 Business Days after clearance thereof by the Stockholders’ MeetingCommission, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will and shall use its reasonable best efforts to solicit proxies for such Stockholder Approval. The Company shall notify Purchaser promptly of the receipt of any comments from holders the SEC or its staff with respect to the proxy statement and of any request by the SEC or its staff for amendments or supplements to such proxy statement or for additional information (but the Company shall not provide any Purchaser with any material, nonpublic information, unless requested by such Purchaser and pursuant to a written agreement regarding the confidentiality and use of such information). If at any time prior to such shareholders’ meeting there shall occur any event that is required to be set forth in an amendment or supplement to the proxy statement, the Company shall as promptly as practicable prepare and mail to its shareholders such an amendment or supplement. In the event that Stockholder Approval is not obtained at such special shareholders meeting, the Company shall include a proposal to approve (and the Board of Directors shall recommend approval of) such proposal at a meeting of its shareholders to be held no less than once in each subsequent six-month period beginning on the date of such special shareholders meeting until such approval is obtained. The Company and each Purchaser agree to use commercially reasonable efforts to ensure that the Common Stock proxies Shares purchased hereby are not counted as votes cast in favor of the adoption Stockholder Proposal at the first meeting of this Agreement and the approval stockholders of the transactions contemplated hereby, including Company where the Merger, and Stockholder Proposal is presented to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsstockholders for approval.

Stockholders Meeting. The Company shallwill take, in accordance with applicable Law and its certificate of incorporation and by-laws, all action necessary to establish a record date for, duly call, give notice of, convene a meeting of holders of Shares (the “Stockholders Meeting”) as promptly as reasonably practicable following after the date on which that the SEC (or staff informs the staff of the SEC) confirms Company that it has no further comments on the preliminary Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market to consider and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to vote upon the adoption of this Agreement Agreement, and the approval Company shall conduct in a timely manner a “broker search” in accordance with Rule 14a-13 of the transactions contemplated hereby, including Exchange Act in connection therewith; provided that in no event shall the Merger, and shall include such recommendation in Company be required to hold the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Stockholders Meeting and the approval of the Recapitalization if the same is submitted prior to the holders fifth business day after the earlier of Company Common Stock for approval at (x) the Stockholders’ MeetingCut-Off Date and (y) the first date from and after the Go-Shop Period End Date as of which no Person qualifies as an Excluded Person. Notwithstanding anything to Following the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to distribution of the Proxy Statement is provided pursuant to Section 6.3, the Company’s stockholders within a reasonable amount of time in advance date of the Stockholders’ MeetingStockholders Meeting may not be adjourned or postponed, except the Stockholder Meeting may be adjourned or postponed from time to time and at any time by the Company (ii) if as of and shall be adjourned or postponed by the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meetingreasonable request of Parent in circumstances Table of Contents described in clauses (b) or (d)): (a) with the consent of Parent (not to be unreasonably withheld, conditioned or delayed); (iiib) if for the absence of a quorum; (c) as the Company Board or any duly constituted committee thereof determines in good faith is required by applicable Law or (iv) if Law, including in connection with the good faith judgment discharge of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members Company Board to the extent necessary to allow for the filing or distribution of any supplemental or amended disclosure with respect to the board of directors of transactions contemplated by this Agreement which the Company Board has determined in good faith (after consultation with its outside legal counsel) is necessary under applicable LawLaws and for such supplemental or amended disclosure to be disseminated to and reviewed by the Company’s stockholders prior to the Company Stockholders Meeting; or (d) to solicit additional proxies if the Company or Parent reasonably believes doing so may be necessary to obtain the Requisite Company Vote. Subject to the provisions of this AgreementSection 6.2 hereof, the Company will Board shall recommend such adoption and shall use reasonable best efforts to take customary lawful actions to solicit from holders of Company Common Stock proxies in favor of the such adoption of this Agreement. For the avoidance of doubt, to the extent the Company Board makes a Change of Recommendation, the Company nevertheless shall continue to submit this Agreement and to the approval stockholders of the transactions contemplated hereby, including Company for adoption at the Merger, and Stockholders Meeting unless this Agreement shall been terminated in accordance with its terms prior to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsStockholders Meeting.

Stockholders Meeting. The Company shallshall call a special meeting of its stockholders, as promptly as reasonably practicable following the date Closing, to vote on which a proposal (the SEC (or “Stockholder Proposal”) to approve the staff issuance of the SEC) confirms that it has no further comments on total number of Common Stock issuable upon conversion of all of the Proxy StatementPreferred Shares, take all action necessary in accordance with applicable LawRule 5635 of the NASDAQ Stock Market Rules (such approval of the Stockholder Proposal, “Stockholder Approval”). The Company will use its reasonable best efforts to hold the rules stockholders’ meeting no later than September 30, 2018. The Board of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, Directors of the Company shall unanimously recommend to duly callthe Company’s stockholders that such stockholders vote in favor of the Stockholder Proposal. In addition, give notice all of the members of the Board of Directors will vote their shares in favor of the Stockholder Proposal. In connection with such meeting, the Company shall promptly prepare and file (but in no event more than fifteen (15) business days after the Closing Date) with the SEC a preliminary proxy statement, shall use its reasonable best efforts to respond to any comments of the SEC or its staff and to cause a definitive proxy statement related to such stockholders’ meeting to be mailed to the Company’s stockholders not more than seven (7) business days after clearance thereof by the SEC, and shall use its reasonable best efforts to solicit proxies for such Stockholder Approval. The Company shall notify Purchaser promptly of the receipt of any comments from the SEC or its staff with respect to the proxy statement and of any request by the SEC or its staff for amendments or supplements to such proxy statement or for additional information (but the Company shall not provide any Purchaser with any material, nonpublic information, unless requested by such Purchaser and pursuant to a written agreement regarding the confidentiality and use of such information). If at any time prior to such stockholders’ meeting there shall occur any event that is required to be set forth in an amendment or supplement to the proxy statement, the Company shall as promptly as practicable prepare and mail to its stockholders such an amendment or supplement. In the event that Stockholder Approval is not obtained at such special stockholders meeting, the Company shall include a proposal to approve (and the Board of Directors shall recommend approval of, convene and hold ) such proposal at a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares held no less than once in each subsequent three-month period beginning on the date of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the such special stockholders meeting until such approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsobtained.

Stockholders Meeting. The Company, acting through the Company shallBoard, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, shall take all action necessary actions in accordance with applicable Lawlaw, the rules of The Nasdaq Capital Market and the Restated its Certificate of Incorporation, as amended, Incorporation and the Bylaws, as amended, of the Company By-laws to promptly and duly call, give notice of, convene and hold a meeting of its stockholders (as promptly as practicable the “Stockholders’ Meeting”) Company Meeting for the purpose of obtaining considering and voting upon the Requisite Stockholder ApprovalCompany Voting Proposal. Subject to Section 6.1, (a) the ability of the board of directors Company Board shall recommend adoption of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), Voting Proposal by the board of directors stockholders of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent Statement and (b) the Company Board shall not withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to the Buyer, the recommendation of the Company Board that the Company’s stockholders vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of Company Voting Proposal (any such withholding, withdrawal or modification, a “Change in Company Recommendation”). Notwithstanding any Change in Company Recommendation, unless this Agreement and is terminated pursuant to Article VIII, the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is Company Voting Proposal shall be submitted to the holders stockholders of the Company Common Stock for approval at the Stockholders’ MeetingCompany Meeting for the purposes of approving the Company Voting Proposal, and nothing contained in this Agreement shall be deemed to relieve the Company of such obligation, unless this Agreement is terminated pursuant to Article VIII. Subject to Section 6.1, the Company shall take all action that is both reasonable and lawful to solicit from its stockholders proxies in favor of the Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the vote or consent of the stockholders of the Company required by the DGCL to obtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parentthe Buyer, may adjourn or postpone the Stockholders’ Company Meeting (i) as to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingor, (ii) if as of the time for which the Stockholders’ Company Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsMeeting.

Stockholders Meeting. The Company shallwill take, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable LawLaw and its certificate of incorporation and bylaws, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders holders of Company Common Shares and Company Limited Voting Shares (the “Stockholders’ Stockholders Meeting”) for the purpose of obtaining seeking the Requisite Stockholder Approval. Subject to Company Vote as promptly as practicable after the ability execution of this Agreement, and in any event within fifty (50) days following clearance of the board of directors Proxy Statement by the SEC. The Company shall, through the Company Board, (i) recommend to holders of the Company Common Shares and Company Limited Voting Shares that they give the Requisite Company Vote and (ii) use its reasonable best efforts to make an Adverse Recommendation solicit the Requisite Company Vote (including by soliciting proxies from the Company’s stockholders), except to the extent that the Company Board shall have effected a Change of Recommendation, as permitted by and determined in accordance with Section 6.6(c), the board of directors of the 6.2. The Company shall make the Company Recommendation keep Parent updated with respect to proxy solicitation results as reasonably requested by Parent. The Company shall not postpone or adjourn the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Stockholders Meeting and the approval of the Recapitalization if the same is submitted except to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything extent (1) Parent has consented to the contrary contained such postponement or adjournment in this Agreementwriting, or (2) the Company, acting in good faith after consultation consulting with Parentits outside legal counsel, may adjourn or postpone the Stockholders’ Meeting determines that (i) as such postponement or adjournment is necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders of the Company within a reasonable amount of time in advance of the Stockholders’ Stockholders Meeting, (ii) if as of (A) it will not receive proxies sufficient to obtain the time for which the Stockholders’ Meeting Requisite Company Vote, whether or not a quorum is originally scheduled present, or (as set forth in the Proxy StatementB) there are insufficient shares of it will not have sufficient Company Common Stock Shares and Company Limited Voting Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ Stockholders Meeting, or (iii) if such postponement or adjournment is required by to comply with applicable Law or (iv) if Law; provided that in the good faith judgment case of any postponement or adjournment under clause (ii) above, the date of the board Stockholders Meeting shall not be postponed or adjourned by more than an aggregate of directors fifteen (15) calendar days other than with Parent’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed). Unless this Agreement shall have been terminated in accordance with ARTICLE VIII, the obligation of the Company (after consultation with legal counsel)to call, an adjournment or postponement of give notice of, convene and hold the Stockholders’ Stockholders Meeting would be consistent with and mail the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject Proxy Statement to the provisions Company’s stockholders shall not be affected by a Change of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsRecommendation.

Stockholders Meeting. The Company shall(a) Subject to any termination of this Agreement pursuant to Article VIII, as promptly as reasonably practicable following the date on which Agreement Date, the Company shall prepare and file with the Securities and Exchange Commission (the “SEC”) a preliminary proxy or information statement for the Special Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC (and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. Subject to Section 5.3(c), the staff of the SEC) confirms that it has no further comments on Company shall include in the Proxy Statement, take all action necessary in accordance with applicable Law, Statement the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, recommendation of the Company to duly call, give notice of, convene and hold a meeting Board of its Directors that the stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement in accordance with the DGCL. The Company and Parent shall use their reasonable efforts to obtain and furnish the approval of information required to be included by the Merger at SEC in the Stockholders’ Meeting Proxy Statement and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with ParentPurchaser, shall respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent and its counsel with copies of any written comments, and shall use reasonable efforts to inform them of any oral comments, that the Company or its counsel may adjourn receive from time to time from the SEC or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment its staff with respect to the Proxy Statement is provided to promptly after the Company’s stockholders within receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable amount of time in advance of opportunity to review any such written responses and the Stockholders’ MeetingCompany shall give due consideration to all reasonable additions, (ii) if as of deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the time one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for which the Stockholders’ Meeting is originally scheduled (as set forth use in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either Statement if and to the extent that it shall have become false or misleading in person any material respect or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if as otherwise required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreementlaw and, the Company will use reasonable best efforts further agrees to solicit from cause the Proxy Statement, as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in Section 1.6(b)(ii), mailed to holders of Company Common Stock proxies Shares, in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, each case as and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock extent required by the rules Securities Exchange Act of The Nasdaq Capital Market 1934, as amended (the “Exchange Act”) or applicable Laws to obtain such approvalsthe SEC (or its staff).

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff Subject to fiduciary obligations of the SEC) confirms that it has no further comments on Company’s Board of Directors or any committee thereof under applicable Law, the Proxy StatementCompany will take, take all action necessary in accordance with applicable LawLaw and its certificate of incorporation and bylaws, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company all reasonable action necessary to duly call, give notice of, convene and hold a meeting of its stockholders Record Holders of Common Shares (the “Stockholders’ Stockholders Meeting”) for as promptly as practicable after the purpose date of obtaining the Requisite Stockholder Approval. Subject to the ability mailing of the board of directors of the Company Proxy Statement to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to consider and vote upon the adoption of this Agreement and Agreement; provided, however, for the approval avoidance of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreementdoubt, the Company, after consultation with Parent, Company may postpone or adjourn or postpone the Stockholders’ Stockholders Meeting (i) as necessary to ensure that any required supplement or amendment to with the Proxy Statement is provided to the Company’s stockholders within a reasonable amount consent of time in advance of the Stockholders’ Meeting, Parent; (ii) if as of the time for which the Stockholders’ Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ Stockholders Meeting, ; (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Board of Directors of the Company or any committee thereof has determined in good faith after consultation with its outside legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting; (iv) if required by applicable Law Law; or (ivv) if the Company has provided a written notice to Parent and Merger Sub pursuant to Section 6.2(c) that it intends to make a Change of Recommendation in connection with a Superior Proposal or take action pursuant to Section 8.3(a) with respect to a Superior Proposal and the good faith judgment notice period contemplated by Section 6.2(c) with respect to such notice has not been reached. Subject to Section 6.2, the Board of the board of directors Directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of shall include the Company under applicable Law. Subject Recommendation in the Proxy Statement and shall take all reasonable lawful action to solicit proxies from the provisions Company’s stockholders in favor of such adoption of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.

Stockholders Meeting. The Company shallCompany, as promptly as reasonably practicable following the date on which the SEC acting through its Board of Directors (or the staff of the SEC) confirms that it has no further comments on the Proxy Statementa committee thereof), shall take all action necessary in accordance with applicable Lawreasonably required under the DGCL, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, the Bylaws and the Bylaws, as amended, applicable requirements of the Company NASDAQ necessary to duly establish a record date for, call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of adopting this Agreement and the approval of the transactions contemplated hereby, Merger (including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (any adjournment or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreementpostponement thereof, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i“Stockholders Meeting”) as necessary to ensure promptly as practicable following confirmation by the SEC that any required supplement or amendment to the SEC will not review the Proxy Statement is provided or that it has no further comments on the Proxy Statement (but subject to the Company’s stockholders within last sentence of this Section 6.8); provided that the Company may postpone, recess, adjourn or cancel such meeting (a) to the extent required by Law, fiduciary duty or a reasonable amount of time in advance of request from the Stockholders’ MeetingSEC or its staff, (iib) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Company Requisite Vote, (c) if as of the time for which the Stockholders’ Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business at of the Stockholders’ Stockholders Meeting, (iiid) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company Board (after consultation with its outside legal counsel), an the failure to adjourn, postpone or delay the Stockholders Meeting would be reasonably likely to not allow sufficient time under applicable Laws for the distribution of any required or appropriate supplement or amendment to the Proxy Statement or (e) Parent otherwise provides written consent to such postponements or adjournment. Notwithstanding the foregoing, the Company shall, at the request of Parent, to the extent permitted by Law, adjourn the Stockholders Meeting to a date specified by Parent for the absence of a quorum or if the Company has not received proxies representing a sufficient number of Shares to obtain the Company Requisite Vote; provided that no such adjournment pursuant to this sentence shall be required to be for a period exceeding ten (10) Business Days. The Company, acting through its Board of Directors (or a committee thereof), shall, subject to Sections 6.6(b)(v), 6.6(c) and 6.6(d), (i) include in the Proxy Statement the Recommendation and (ii) use its reasonable best efforts to obtain the Company Requisite Vote. The adoption of this Agreement, the adjournment or postponement of the Stockholders’ Stockholders Meeting would be consistent with due to the fiduciary duties absence of the members of the board of directors of a quorum or if the Company has not received proxies representing a sufficient number of Shares to obtain the Company Requisite Vote, and, if applicable, the advisory vote required by Rule 14a-21(c) under applicable Lawthe Exchange Act shall be the only matters which the Company shall propose to be acted on by the Company’s stockholders at the Stockholders Meeting unless otherwise approved in writing by Parent. Subject Notwithstanding anything to the provisions of contrary contained in this Agreement, the Company will use reasonable best efforts shall not be required to solicit from holders of Company Common Stock proxies in favor of hold the adoption of Stockholders Meeting if this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsis terminated.

Stockholders Meeting. The Company Seller shall, as promptly as reasonably practicable after the date of this Agreement, establish a record date (which date will be as promptly as reasonably practicable following the date of this Agreement) and, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital NASDAQ Global Select Market and the Restated Certificate organizational documents of Incorporation, as amended, and the Bylaws, as amended, of the Company Seller to duly call, give notice ofof (which notice shall include a separate and distinct proposal (not bundled with any proposal relating to the adoption by the stockholders of Seller of any LicenseCo Agreement or approval of any LicenseCo Sale) for the consideration and vote of the stockholders of Seller relating to the adoption of this Agreement and each of the other Transaction Agreements and approval of the Transactions), convene and hold a meeting of its stockholders as promptly as reasonably practicable after the date of this Agreement (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company Seller to make an Adverse Recommendation Change in accordance with Section 6.6(c5.5(c), the board of directors of the Company Seller shall make the Company Seller Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated herebyTransactions, including without limitation the MergerPatent Sale, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, Seller may adjourn or postpone the Stockholders’ Meeting (i) after consultation with Patent Purchaser, as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the CompanySeller’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, Meeting or (ii) after consultation with Patent Purchaser, if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Seller’s common stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting; provided, however, that Seller shall in each case use commercially reasonable efforts to hold the Stockholders’ Meeting no later than fifteen (iii15) if required by applicable Law or days following the date for which the Stockholders’ Meeting was originally scheduled (iv) if as set forth in the good faith judgment of Proxy Statement). In the board of directors of event that the Company (after consultation with legal counsel), an adjournment or postponement date of the Stockholders’ Meeting would be consistent as originally scheduled is adjourned or postponed pursuant to this Section 5.3 or otherwise delayed, Seller agrees that in consultation with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this AgreementPatent Purchaser, the Company will Seller shall use its reasonable best efforts to solicit from holders of Company Common Stock proxies implement such adjournment or postponement or such delay in favor of such a way that Seller does not establish a new record date for the adoption of this Agreement and the approval of the transactions contemplated herebyStockholders’ Meeting, including the Mergeras so adjourned, and to take all other action necessary postponed or advisable to secure the vote or consent of holders of Company Common stock delayed, except as required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsLaw.

Stockholders Meeting. The Unless the Board of Directors of the Company shallhas made a Change of Recommendation, as the Company, acting through its Board of Directors (or a committee thereof), shall promptly as reasonably practicable following the date on which confirmation by the SEC (or that the staff of the SEC) confirms that it SEC has no further comments on the Proxy Statement, take all reasonable action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining approving and adopting this Agreement (including any adjournment or postponement thereof, the Requisite Stockholder Approval. Subject “Stockholders Meeting”) and shall not, without the prior written consent of Parent, postpone, recess or adjourn such meeting; provided that the Company may postpone, recess or adjourn such meeting without the prior written consent of Parent (i) to the ability extent required by Law or fiduciary duty, (ii) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Company Requisite Vote, (iii) if as of the board time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), the Company has not received proxies representing a sufficient number of directors Company Shares to obtain the Company Requisite Vote or there are insufficient Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business of the Stockholders Meeting or (iv) to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure which the Board of Directors of the Company has determined in good faith after consultation with outside counsel is necessary under applicable Law or to prevent the breach of fiduciary duty and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting to the extent so determined to be necessary; provided that the Stockholders Meeting shall not be postponed, recessed or adjourned pursuant to this provision to a date that is more than thirty (30) days after the date on which the Stockholders Meeting was originally scheduled without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). The Company, acting through its Board of Directors (or a committee thereof), shall subject to Section 6.1(c), (a) include in the Proxy Statement the Recommendation and the written opinion of the Financial Advisor, dated as of the date of this Agreement, that, as of such date, the Per Share Merger Consideration is fair, from a financial point of view, to the holders of the Common Stock and (b) use its reasonable best efforts to obtain the Company Requisite Vote, including to actively solicit proxies necessary to obtain the Company Requisite Vote; provided that the Board of Directors of the Company may fail to include the Recommendation in the Proxy Statement or withdraw, modify or change the Recommendation, or formally resolve to effect or publicly announce an intention to effect any of the foregoing (a “Change of Recommendation”) and, following such Change of Recommendation, may fail to use its reasonable best efforts if it shall have determined in good faith, after consultation with outside legal counsel to the Company, that the failure of the Board of Directors of the Company to make an Adverse effect a Change of Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause would be reasonably likely to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meetinginconsistent with its fiduciary duties under applicable Law. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone Company shall not be required to hold the Stockholders’ Stockholders Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.is terminated. -37-

Stockholders Meeting. The Company shall, as promptly as reasonably practicable (a) If required following the date on which the SEC (or the staff consummation of the SEC) confirms that it has no further comments on Amended Offer, the Proxy StatementCompany will take, take all action necessary in accordance with applicable LawLaw and its certificate of incorporation and bylaws, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders holders of Shares (the “Stockholders’ "Stockholders Meeting”") for the purpose of obtaining the Requisite Stockholder Approval. Subject as promptly as practicable to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to consider and vote upon the adoption of this Agreement and the authorization of the Merger contemplated hereby and shall recommend that stockholders vote in favor of adoption of this Agreement and authorization of the Merger. The Company shall take all lawful action to solicit the requisite approval of stockholders. In the transactions event that the Special Committee or Board of Directors of the Company does not make or withdraws the recommendation contemplated herebyabove, including the Company still agrees to convene the Stockholders Meeting to consider and vote upon the adoption of this Agreement and authorization of the Merger. At any such meeting of the stockholders of the Company, Parent shall cause all of the Shares then owned by the Parent, Merger Sub and Parent's subsidiaries will be voted in favor of this Agreement. The Company's proxy or information statement with respect to such meeting of stockholders (the "Proxy Statement"), at the date thereof and at the date of such meeting, will not include 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; provided, however, that the foregoing shall include not apply to the extent that any such recommendation untrue statement of a material fact or omission to state a material fact was made by the Company in reliance upon and in conformity with written information concerning the Parent and its subsidiaries furnished to the Company by Parent specifically for use in the Proxy Statement. Parent agrees that the information it provides for the Proxy Statement will comply with the Exchange Act in all material respects. The Proxy Statement shall vote (not be filed, and no amendment or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to will be made by the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after without prior consultation with legal Purchaser and its counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.

Stockholders Meeting. The Company shallwill take, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable LawLaw and its certificate of incorporation and by-laws, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders holders of Shares (the “Stockholders’ Stockholders Meeting”) as promptly as reasonably practicable after the execution of this Agreement, taking into account the need for the preparation and public filing of the required financial statements, for the purpose of obtaining seeking the Requisite Stockholder Approval. Subject to the ability Company Vote and Charter Amendment Vote, regardless of whether the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger any duly authorized committee thereof determines at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in any time that this Agreement, the Merger or the other transactions contemplated by this Agreement are no longer advisable, recommends that the stockholders of the Company reject this Agreement, the Merger or the other transactions contemplated by this Agreement, or any other Change of Recommendation has occurred. The Company shall not postpone or adjourn the Stockholders Meeting except to the extent (1) Sponsor has consented to such postponement or adjournment in writing, or (2) the Company, acting in good faith after consultation consulting with Parentits outside legal counsel, may adjourn or postpone the Stockholders’ Meeting determines that (i) as such postponement or adjournment is necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders of the Company within a reasonable amount of time in advance of the Stockholders’ Stockholders Meeting, (ii) if as of (A) it will not receive proxies sufficient to obtain the time for which the Stockholders’ Meeting Requisite Company Vote or Charter Amendment Vote, whether or not a quorum is originally scheduled present, or (as set forth in the Proxy StatementB) there are insufficient shares of Company Common Stock it will not have sufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ Stockholders Meeting, or (iii) if such postponement or adjournment is required by to comply with applicable Law or (iv) if Law; provided, that in the good faith judgment case of any postponement or adjournment under clause (ii) above, the date of the Stockholders Meeting shall not be postponed or adjourned by more than an aggregate of fifteen (15) calendar days other than with Sponsor’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed). Subject to Section 6.3 hereof, the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of and any duly authorized committee thereof shall recommend the adoption of this Agreement at the Stockholders Meeting and, unless there has been a Change of Recommendation permitted by and in accordance with Section 6.3(d), shall include the Company Recommendation and the approval recommendation that the holders of Shares give the transactions contemplated hereby, including Charter Amendment Vote in the Merger, Proxy Statement and to shall take all other lawful action necessary or advisable to secure the vote or consent solicit such adoption of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsthis Agreement.

Stockholders Meeting. The Company If approval by the Company's stockholders is required by applicable law to consummate the Merger, the Company, acting through the Board, shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Lawlegal and regulatory requirements and, subject to the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, fiduciary duties of the Company to Board: (i) duly call, give notice of, convene and hold a an annual or special meeting of its stockholders (the “"Stockholders’ ' Meeting”") to be held as soon as practicable following the purchase of Shares pursuant to the Offer for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement considering and taking action upon the approval of the transactions contemplated herebyMerger; (ii) prepare and file with the SEC a proxy statement or information statement (together with any supplement or amendment thereto, including the Merger, "Proxy Statement") relating to the Merger Agreement and shall include such recommendation the Merger and use its reasonable best efforts (A) to obtain and furnish the information required to be included by it in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the CompanyStatement and, after consultation with Parent, may adjourn or postpone respond promptly to any comments made by the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to SEC with respect the Proxy Statement is provided and any preliminary version thereof and cause the Proxy Statement to be mailed to its stockholders at the Company’s stockholders within a reasonable amount of earliest practicable time in advance following the expiration or termination of the Stockholders’ MeetingOffer, and (iiB) if subject to its fiduciary duties as unanimously determined in good faith by the Board, based as to legal matters on the written advice of legal counsel, to obtain the necessary approvals by its stockholders of the time for which Merger Agreement and the Stockholders’ Meeting is originally scheduled transactions contemplated thereby; and (as set forth iii) include in the Proxy Statement the recommendation of the Board that stockholders of the Company vote in favor of the approval of the Merger. At such meeting, Parent and its affiliates have agreed to vote all Shares owned by them to approve the Merger. Purchaser will provide the Company with the information concerning Purchaser required to be included in the Proxy Statement) there are insufficient shares . Notwithstanding anything in the Merger Agreement to the contrary, Parent, the Company and Purchaser agree that, in lieu of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at holding the Stockholders’ ' Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment Company may obtain the approval and adoption of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Merger Agreement, the Merger and the other transactions contemplated thereby by the holders of 66 2/3% of the outstanding Shares, by written consent pursuant to Section 615 of the NYBCL ("Approval by Consent"). In addition, the Company will agrees with and covenants to Parent and Purchaser that the Company shall use all reasonable best efforts to solicit from holders permit the Company's stockholders to effect Approvals by Consent to adopt and approve, for purposes of Company Common Stock proxies in favor Section 903 of the adoption of this Agreement NYBCL, the Merger Agreement, the Merger and the approval of the other transactions contemplated hereby, including the Merger, thereby and to take all comply with and satisfy as promptly as practicable any applicable legal, regulatory or stock exchange or stock market requirements that apply to approving the Merger Agreement, the Merger and the other action necessary or advisable transactions contemplated thereby by way of Approval by Xxxxxxx. If Company stockholder approval and adoption is obtained by Approval by Consent, the Company shall not be required to secure call the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsStockholders' Meeting.

Stockholders Meeting. (a) The Company, acting through the Company shallBoard, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, shall take all action necessary actions in accordance with applicable Law, its Certificate of Incorporation and By-laws and the rules of The Nasdaq Capital Market the New York Stock Exchange to promptly and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (as promptly as practicable the “Stockholders’ Meeting”) Company Meeting for the purpose of obtaining considering and voting upon the Requisite Stockholder ApprovalCompany Voting Proposal. Subject to the ability occurrence of the board of directors of the Company to make an Adverse Recommendation Change in accordance with pursuant to Section 6.6(c)6.1, (a) the board of directors Company Board shall recommend adoption of the Company shall make Voting Proposal by the stockholders of the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent Statement and (b) the Company Board shall not withhold, withdraw or modify, or publicly propose or resolve to withhold, withdraw or modify in a manner adverse to the Buyer, the recommendation of the Company Board that the Company’s stockholders vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption Company Voting Proposal. Subject to the occurrence of this Agreement an Adverse Recommendation Change pursuant to Section 6.1, the Company shall take all action that is both reasonable and the approval lawful to solicit from its stockholders proxies in favor of the Merger at Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the Stockholders’ Meeting and the approval vote or consent of the Recapitalization if stockholders of the same is submitted Company required by the rules of the New York Stock Exchange or the DGCL to the holders of Company Common Stock for approval at the Stockholders’ Meetingobtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, Company may adjourn or postpone the Stockholders’ Company Meeting (i) as necessary to ensure that provide any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ MeetingCompany Meeting (solely in the event that such supplement or amendment is determined by the Company in good faith, (iiafter consultation with outside counsel, to be required by applicable Law) or, if as of the time for which the Stockholders’ Company Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) and voting in favor to approve the Company Voting Proposal or to constitute a quorum necessary to conduct the business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsMeeting.

Stockholders Meeting. The If the adoption of this Agreement by the Company’s stockholders is required by applicable Law, the Company shall, as promptly as reasonably practicable following after the later of (i) the Offer Closing Date, (ii) the Offer Termination Date and (iii) the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market NASDAQ and the Restated Certificate of Incorporation, as amended, Incorporation and the Bylaws, as amended, Bylaws of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c6.6(d) (but, for the avoidance of doubt, unless this Agreement is terminated pursuant to Section 8.1, any such Adverse Recommendation Change shall not relieve the Company of its obligation to give notice of, convene and hold a meeting of its stockholder in accordance with this Section 6.3), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) with Parent’s consent (which consent shall not be unreasonably withheld, conditioned or delayed), as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, and (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting. Notwithstanding the foregoing, (iii) if, following the Offer Closing and the exercise, if required by applicable Law or (iv) if in the good faith judgment any, of the board of directors Top-Up Option, Parent and its affiliates shall own at least ninety percent (90%) of the outstanding shares of Company (Common Stock, the parties hereto shall take all necessary and appropriate action, including with respect to the transfer to Acquisition Sub of any shares of Company Common Stock held by Parent or its affiliates, to cause the Merger to become effective as soon as practicable after consultation with legal counsel), an adjournment or postponement of the Offer Closing without the Stockholders’ Meeting would be consistent in accordance with the fiduciary duties Section 253 of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsDGCL.

Stockholders Meeting. The Unless this Agreement has been terminated pursuant to Article VIII, the Company shallwill take, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, Law and its certificate of incorporation and bylaws and the rules of The Nasdaq Capital Market and the Restated Certificate of IncorporationNYSE, as amended, and the Bylaws, as amended, of the Company all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders holders of Shares (the “Stockholders’ Stockholders Meeting”) as promptly as practicable after the date of mailing of the Proxy Statement for the purpose of obtaining the Requisite Stockholder Approval. Subject Company Vote; provided, however, for the avoidance of doubt, the Company may postpone or adjourn the Stockholders Meeting solely (i) with the consent of Parent; (ii) due to the ability absence of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote a quorum; (or cause to be votediii) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent and with Parent’s prior written consent (not to be unreasonably withheld, may adjourn delayed or postpone conditioned), to allow reasonable additional time for the Stockholders’ Meeting (i) as filing and mailing of any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to ensure that any required supplement or amendment to the Proxy Statement is provided to be disseminated and reviewed by the Company’s stockholders within a reasonable amount of time in advance of prior to the Stockholders’ Stockholders Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law ; or (iv) if in the good faith judgment of the board of directors of the Company (after consultation has provided a written notice to Parent and Merger Sub pursuant to Section 6.2(e)(A) or the proviso immediately following Section 6.2(e)(C) hereof and the time period contemplated by Section 6.2(e)(A) or such proviso with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Lawrespect to such notice has not yet expired. Subject to Section 6.2 and the provisions last sentence of this AgreementSection 6.4, the Company will Board shall recommend such adoption and shall use its reasonable best efforts to solicit from holders of its stockholders proxies giving the Requisite Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, Vote and to take all other action reasonably necessary or advisable to secure the vote or consent of holders the stockholders of the Company Common stock required by the Company charter documents, the rules of The Nasdaq Capital Market the NYSE and the DGCL. Notwithstanding anything to the contrary in this Agreement, unless this Agreement has been terminated pursuant to Article VIII, if, after the No-Shop Period Start Date, the Company Board shall have withheld, withdrawn, qualified or applicable Laws modified the Company Recommendation, issued a Company Adverse Recommendation Change or made a Change in Recommendation, the Company shall nonetheless submit this Agreement to obtain such approvalsits stockholders at the Stockholders Meeting.

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, will take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market Company's Charter and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company Company's By-laws to duly call, give notice of, convene and hold a meeting of its stockholders (as promptly as practicable to consider and vote upon the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption approval of this Agreement and the approval of transactions contemplated hereby. The Company Board shall recommend that its stockholders approve this Agreement and the transactions contemplated hereby, including and the MergerCompany shall use its reasonable best efforts to obtain such approval, including, without limitation, by timely filing and shall include such recommendation mailing the proxy statement/prospectus contained in the Proxy Statement. Parent shall vote (or cause Form S-4 to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Subits stockholders; provided, if anyhowever, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary that nothing contained in this Agreement, Section 6.01(b) shall prohibit the CompanyCompany Board from failing to make such recommendation or using its reasonable best efforts to obtain such approval if the Company Board has determined in good faith, after consultation with Parentoutside counsel, may adjourn or postpone the Stockholders’ Meeting (i) as that such action is necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation Board to comply with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the its fiduciary duties of the members of the board of directors of the Company to its stockholders under applicable Law. Subject The Company and Purchaser shall coordinate and cooperate with respect to the provisions timing of this Agreementsuch meeting. It shall be a condition to mailing the Form S-4 that (i) Purchaser shall have received a "comfort" letter from Ernst & Young LLP, independent public accountants for the Company, dated as of a date within two business days before the date on which the Form S-4 shall become effective, with respect to the financial statements of the Company will use reasonable best efforts included or incorporated in the Form S-4, in form and substance reasonably satisfactory to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the MergerPurchaser, and customary in scope and substance for "comfort" letters delivered by independent public accountants in connection with registration statements and proxy statements similar to take all other action necessary the Form S-4, and (ii) the Company shall have received a "comfort" letter from KPMG LLP, independent public accountants for Purchaser, dated as of a date within two business days before the date on which the Form S-4 shall become effective, with respect to the financial statements of Purchaser included or advisable incorporated in the Form S-4, in form and substance reasonably satisfactory to secure the vote or consent of holders of Company Common stock required Company, and customary in scope and substance for "comfort" letters delivered by independent public accountants in connection with registration statements and proxy statements similar to the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsForm S-4."

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following Pursuant to the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable LawMerger Agreement, the rules of The Nasdaq Capital Market and Company will, if required by applicable law in order to consummate the Restated Certificate of IncorporationMerger, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a special meeting of its stockholders (the “Stockholders’ "Special Meeting”") as soon as practicable following the acceptance for payment and purchase of Shares by Purchaser pursuant to the Offer for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement considering and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and taking action upon the approval of the Merger at and adoption of the Stockholders’ Meeting Merger Agreement. The Merger Agreement also provides that the Company will, if required by applicable law in order to consummate the Merger, (i) prepare and file with the Commission a preliminary proxy or information statement relating to the Merger and the approval of Merger Agreement and will use its best efforts (A) to obtain and furnish the Recapitalization if information required by the same is submitted Commission to be included in the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the CompanyProxy Statement (as defined below) and, after consultation with Parent, may adjourn to respond promptly to any comments made by the Commission with respect to the preliminary proxy or postpone information statement and cause a definitive proxy or information statement (the Stockholders’ Meeting "Proxy Statement") to be mailed to its stockholders and (iB) to obtain the necessary approvals of the Merger and the Merger Agreement by its stockholders and (ii) subject to the fiduciary obligations of the Company Board under applicable law as necessary to ensure that any required supplement or amendment to advised by independent counsel, include in the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors recommendation of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors Board that stockholders of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies vote in favor of the approval of the Merger and adoption of this Agreement the Merger Agreement. Parent agrees that it will vote, or cause to be voted, all of the Shares then owned by it, the Purchaser or any of its other subsidiaries and affiliates in favor of the approval of the transactions contemplated herebyMerger and the adoption of the Merger Agreement. In the event that Parent, including Purchaser or any other subsidiary of Parent acquires, together with the MergerShares owned by them collectively, and at least 90% of the outstanding Shares pursuant to the Offer or otherwise, the parties will take all other necessary and appropriate action necessary or advisable to secure cause the vote or consent Merger to become effective as soon as practicable after such acquisition, without a meeting of holders the Company's stockholders, in accordance with Section 253 of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsDGCL (a "Short-Form Merger").

Stockholders Meeting. The (a) Subject to its fiduciary responsibilities, the Board of Directors of the Company shallwill submit (i) this Merger Agreement, (ii) the Charter Amendment, and (iii) the proposal to transfer substantially all of its assets to the Liquidating Trust as required by Section 909 of the New York Business Corporation Law (the "Plan of Liquidation") to its stockholders for their adoption and will solicit proxies in favor of and recommend to its stockholders such adoption at a meeting thereof to be duly called and held as soon as practicable. In connection therewith, the Company shall prepare and file with the Commission, as soon as practicable, the required proxy material and shall use its best efforts promptly as reasonably practicable following the date on which the SEC (or to obtain clearance by the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, Commission of the Company mailing of such material to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approvalstockholders. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the its fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreementresponsibilities, the Company will use reasonable its best efforts to solicit from holders obtain the necessary approval of this Merger Agreement, the Charter Amendment and the Plan of Liquidation by its stockholders and will take as soon as practicable such other and further actions as may be required by this Merger Agreement and as may be required by law to effectuate the Merger, the Charter Amendment and the Plan of Liquidation. In obtaining the authorization and approval of its stockholders, the Company Common Stock proxies shall comply with all applicable Federal and state securities and other laws in favor connection with the transactions to be effected hereunder. Without limiting the generality of the adoption foregoing, the Company agrees that the information contained in its proxy statement (other than information as to MSCMG furnished to the Company in writing by MSCMG) (i) will comply in all respects with the provisions of this Agreement the Exchange Act and the approval rules and regulations promulgated thereunder, and (ii) will not contain any 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 not misleading, in each case when first mailed to the Company's stockholders and at all times thereafter through the Effective Date of the Merger. The Company shall not distribute any material to its stockholders in connection with this Merger Agreement, the Charter Amendment, the Plan of Liquidation and the transactions contemplated herebyhereby other than materials contained in its proxy statement cleared by the staff of the Commission, including except such additional material cleared by the staff of the Commission. (b) Without limiting the generality of the foregoing, MSCMG agrees that the information as to MSCMG furnished to the Company in writing by MSCMG for use in the Proxy Statement (i) will comply in all respects with the provisions of the Exchange Act and the rules and regulations promulgated thereunder, and (ii) will not contain any 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 not misleading, in each case on the Mailing Date and at all times thereafter through the Effective Date of the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals. SECTION 6.2.

Stockholders Meeting. The Company shallMerger Agreement provides that, as promptly as reasonably practicable if required by applicable law, the Company, acting through the Board, shall (i) following the date on which the SEC (or the staff expiration of the SEC) confirms that it has no further comments on the Proxy StatementOffer, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold call a meeting of its stockholders (the “Stockholders’ "Stockholders Meeting”") for the purpose of obtaining voting on the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Merger Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingthereby, (ii) if hold the Stockholders Meeting as soon as practicable after the purchase of Shares pursuant to the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, Offer and (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting unless taking such action would be consistent inconsistent with the fiduciary duties of the members of Board or the board of directors constituting the Special Committee to stockholders of the Company under applicable Law. Subject imposed by law, as determined by such directors in good faith and after consultation with independent legal counsel, recommend to its stockholders the approval of the Merger Agreement and the transactions contemplated thereby; provided, however, that the Board shall not be obligated to recommend the Merger Agreement or the transactions contemplated thereby if, at or prior to the provisions Stockholders Meeting, a Superior Proposal (as defined below) has been received and if with respect thereto the Special Committee or the Board determines in good faith (after consultation with its legal counsel) that taking such action would be inconsistent with its fiduciary duties to the stockholders of this Agreementthe Company. If a Stockholders Meeting is called, the Company will use its reasonable best efforts to solicit from holders the stockholders of the Company Common Stock proxies in favor of the approval and adoption of this the Merger Agreement and the approval of the transactions contemplated hereby, including the Merger, thereby and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock stockholders required for such approval, unless otherwise required by applicable fiduciary duties, as determined by such directors in good faith after consultation with independent legal counsel. At the rules Stockholders Meeting, Purchaser will cause all the Shares then owned by Purchaser or the Cherry Family Members to be voted in favor of the Merger. The Nasdaq Capital Market Merger Agreement provides that, notwithstanding the foregoing, if Purchaser, or applicable Laws any direct or indirect subsidiary of Purchaser, acquires at least 90 percent of the outstanding Shares (assuming that all Shares owned by the Cherry Family Members are transferred to obtain such approvalsPurchaser), the parties to the Merger Agreement shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the consummation of the Offer, without a meeting of stockholders of the Company, in accordance with the "Short-Form Merger" provisions of the DGCL. Unless Purchaser or other stockholders of the Company execute consents in lieu of a stockholders meeting adequate to approve the Merger, the Merger Agreement is required to be submitted to the stockholders of the Company whether or not the Board determines at any time subsequent to declaring its advisability that the Merger Agreement is no longer advisable and recommends that the stockholders reject it.

Stockholders Meeting. The Subject to a termination of this Agreement in accordance with Article VI and the provisions of this Agreement, the Company shall, as promptly as reasonably practicable following the date on which the SEC shall (or the staff of the SECi) confirms that it has no further comments on the Proxy Statement, take all reasonable action necessary in accordance with applicable Lawthe DGCL, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, regulations of the Company NYSE and in accordance with applicable Laws and its Charter and By-Laws to duly call, give notice of, convene and hold a meeting of its stockholders the holders of Shares for purposes of obtaining the Company Requisite Vote (the “Stockholders’ Stockholders Meeting”) as promptly as practicable after the execution of this Agreement to consider and vote upon the approval of this Agreement (the date of which shall be selected after reasonable consultation with Parent), (ii) as soon as reasonably practicable following the date the SEC staff advises that it has no further comments on the Proxy Statement or that the Company may commence mailing the Proxy Statement, duly call and give notice of, and commence mailing of the Proxy Statement to the holders of Shares as of the record date (selected after reasonable consultation with Parent) established for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability Stockholders Meeting, (iii) reasonably cooperate with Parent in initiating a “broker search” in accordance with Rule 14a-13 of the board of directors of 1934 Act as necessary to cause the Company to make an Adverse Recommendation Change comply with its obligations set forth in accordance with Section 6.6(cthe foregoing clauses (i) and (ii), and (iv) subject to a Change of Recommendation, use all reasonable efforts to solicit from the board holders of directors Shares proxies in favor of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy StatementAgreement. Parent shall vote (or cause to be voted) all shares of The Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Stockholders Meeting to a later date (iA) as necessary with the consent of Parent, (B) to the extent the Company believes in good faith that such adjournment or postponement is reasonably necessary, (1) to ensure that any required (by applicable Law) supplement or amendment to the Proxy Statement is provided to the Company’s stockholders holders of Shares within a reasonable amount of time in advance of the Stockholders’ Stockholders Meeting, (ii2) if to allow reasonable additional time to solicit additional proxies necessary to obtain the Company Requisite Vote (including after commencement of an Acquisition Proposal that is a tender offer or exchange offer), or (3) if, as of the time for which original date of the Stockholders’ Company Shareholders Meeting, the Company is unable to obtain a quorum of its shareholders at the Stockholders Meeting is originally scheduled (as set forth in necessary to conduct the Proxy Statement) business of the Stockholders Meeting, to ensure that there are insufficient shares of Company Common Stock sufficient Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business of the Stockholders Meeting. Subject to Section 4.2, the Company Board shall recommend that the holders of the Shares adopt this Agreement, and the Company shall (a) include the Company Recommendation in the Proxy Statement and (b) comply in all material respects with all legal requirements applicable to such meeting. Notwithstanding the foregoing, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), the Stockholders Meeting shall not be postponed or adjourned (x) by more than ten calendar days at a time or (y) by more than 30 calendar days in the Stockholders’ Meetingaggregate after the date on which the Stockholders Meeting was originally scheduled. In no event will the record date of the Stockholders Meeting be changed without Parent’s prior written consent (which consent shall not be unreasonably withheld, (iii) if delayed or conditioned), unless required by applicable Law Law. Notwithstanding anything to the contrary in this Agreement but subject to applicable Law, unless and until this Agreement is terminated in accordance with its terms, the Company’s obligation to call, give notice of, convene and hold the Stockholders Meeting under this Agreement shall not be limited, or (iv) if in otherwise affected, by the good faith judgment of the board of directors of commencement, disclosure, announcement or submission to the Company (after consultation with legal counsel)of any Acquisition Proposal, an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreementand once established, the Company will use reasonable best efforts to solicit from holders of shall not change the record date for the Company Common Stock proxies in favor of Stockholders Meeting or postpone or adjourn the adoption of this Agreement and Company Stockholders Meeting without the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or prior written consent of holders of Company Common stock required Parent (except as contemplated by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsthis Section 4.4).

Stockholders Meeting. The Subject to the terms and conditions of this Agreement, the Company, acting through the Company shallBoard, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, shall take all action necessary actions in accordance with applicable Lawlaw, its Certificate of Incorporation and By-laws and the rules of The Nasdaq Capital Stock Market to promptly and the Restated Certificate of Incorporationduly fix a record date for, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting as promptly as practicable, and not later than the 30th calendar day immediately following the date of its stockholders (the “Stockholders’ Meeting”) mailing of the Proxy Statement absent any legal restraint that prevents such action, the Company Meeting for the purpose of obtaining considering and voting upon the Requisite Stockholder ApprovalCompany Voting Proposal. Without limiting the generality of the foregoing, and subject to Section 6.1, the Company agrees that its obligations pursuant to this Section 6.5 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other person of any Acquisition Proposal. Subject to Section 6.1, (a) the ability of the board of directors Company Board shall recommend adoption of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), Voting Proposal by the board of directors stockholders of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent Statement and (b) the Company Board shall not withhold, withdraw or modify, or propose or resolve to withhold, withdraw or modify in a manner adverse to the Parent, the recommendation of the Company Board that the Company’s stockholders vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement Company Voting Proposal. Subject to Section 6.1, the Company shall take all action that is both reasonable and the approval lawful to solicit from its stockholders proxies in favor of the Merger at Company Voting Proposal and shall take all other action reasonably necessary or advisable to secure the Stockholders’ Meeting and the approval vote of the Recapitalization if stockholders of the same is submitted Company required by the rules of The Nasdaq Stock Market or the DGCL to the holders of Company Common Stock for approval at the Stockholders’ Meetingobtain such approvals. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with the Parent, may or, if requested by the Parent, shall adjourn or postpone the Stockholders’ Company Meeting (i) as to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingor, (ii) if as of the time for which the Stockholders’ Company Meeting is originally scheduled (as set forth in the Proxy Statement) ), there are insufficient shares of Company Common Stock represented (either in person or by proxy) affirmative votes to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of duly authorize the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsVoting Proposal.

Stockholders Meeting. The (a) In order to consummate the Merger, the Company, acting through the Company Board of Directors, shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to law: (i) duly call, give notice of, convene and hold a special meeting of its stockholders (the “"Stockholders’ ' Meeting”") as promptly as practicable after the date of this Agreement for the purpose of obtaining voting on the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the approval and adoption of this Agreement and the approval of Merger (the transactions contemplated hereby, including "Company Stockholder Approval"); (ii) prepare and file with the Merger, SEC a preliminary proxy statement relating to the Merger and shall include such recommendation this Agreement (the "Proxy Statement") and use its best efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the CompanyStatement and, after consultation with Parent, may adjourn to respond promptly to any comments made by the SEC with respect to the preliminary Proxy Statement and cause a definitive Proxy Statement to be mailed to its stockholders at the earliest practicable time; (iii) each party to this Agreement will notify the other parties promptly of the receipt of the comments of the SEC, if any, and of any request by the SEC for amendments or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment supplements to the Proxy Statement is provided or for additional information with respect thereto, and will supply the other parties with copies of all correspondence between such party or its representatives, on the one hand, and the SEC or members of its staff, on the other hand, with respect to the Company’s stockholders within a reasonable amount of Proxy Statement or the Merger. If (A) at any time in advance of prior to the Stockholders’ ' Meeting, (ii) if as any event should occur relating to the Company or any of the time for its Subsidiaries which the Stockholders’ Meeting is originally scheduled (as should be set forth in an amendment of, or a supplement to, the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will promptly inform Parent and (B) if at any time prior to the Stockholders' Meeting, any event should occur relating to Parent or Purchaser or any of their respective subsidiaries or affiliates, or relating to the plans of any such persons for the Company after the Effective Time, that should be set forth in an amendment of, or a supplement to, the Proxy Statement, Parent will promptly inform the Company, and in the case of (A) or (B) the Company and Parent, will, upon learning of such event, promptly prepare, and the Company shall file and, if required, mail such amendment or supplement to the Company's stockholders; provided, prior to such filing or mailing, the Company and Parent shall consult with each other with respect to such amendment or supplement. The Company and its counsel shall permit Parent and its counsel to participate in all communications with the SEC and its staff, including any meetings and telephone conferences, relating to the Proxy Statement, the Merger or this Agreement; (iv) subject to Section 5.6, include in the Proxy Statement the recommendation of the Board that stockholders of the Company vote in favor of the approval of the Merger and the adoption of this Agreement; and (v) use all commercially reasonable best efforts to solicit from holders of shares of Company Common Stock proxies in favor of the adoption of this Agreement Merger and the approval of the transactions contemplated hereby, including the Merger, and to shall take all other action necessary or or, in the reasonable opinion of Parent, advisable to secure the any vote or consent of holders stockholders required by the DGCL to effect the Merger. (b) The Company hereby represents that Lazard Freres & Co. LLC, the Company's independent financial advisor, has, subject to the terms of its engagement letter with the Company, consented to the inclusion of references to its opinion in the Proxy Statement. (c) Parent will provide the Company with the information concerning Parent and Purchaser required to be included in the Proxy Statement. (d) Parent shall vote, or cause to be voted, in favor of the approval of the Merger and the approval and adoption of this Agreement all shares of Company Common stock required Stock owned by the rules Parent, Purchaser or any of The Nasdaq Capital Market or applicable Laws to obtain such approvals.Parent's other Subsidiaries. Section 5.6

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, shall take all action necessary in accordance with applicable Lawthe United States federal securities laws, the rules of The Nasdaq Capital Market DGCL and the Restated Company Certificate of Incorporation, as amended, Incorporation and the BylawsCompany Bylaws necessary to duly call, as amendedgive notice of, convene and hold a special meeting of the holders of the Company Common Stock, to be held on the earliest practicable date determined in consultation with the Major Investors, for the purpose of obtaining the Requisite Common Stock Approval (the "STOCKHOLDERS MEETING"). Once the Stockholders Meeting has been called and noticed, the Company shall not postpone or adjourn (other than for the absence of a quorum and then only to the next possible future date) the Stockholders Meeting without consent of the Major Investors, except the Company may postpone or adjourn the Stockholders Meeting for a reasonable period of time to allow for the dissemination of materials and due investor consideration of disclosures required by Applicable Law in the judgment of the Company Board. The Company Board shall submit the Charter Amendments to the holders of the Company Common Stock unless, prior to the meeting of the holders of Company Common Stock called therefor, the Company Board shall have withdrawn the Company Board Recommendation. The Company shall solicit from the holders of Company Common Stock proxies to vote with respect to the Charter Amendments and, subject to the provisions of SECTION 2.1(g) hereof, shall take all other action necessary or advisable to secure the vote or consent of such holders required by the DGCL and the Company Certificate of Incorporation and Company Bylaws to authorize and adopt the Charter Amendments. Without limiting the generality of the foregoing, subject to the third sentence of this SECTION 5.1, (i) the Company agrees that its obligation to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at Stock, as required by this SECTION 5.1, shall not be affected by the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn amendment or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance modification of the Stockholders’ Meeting, Company Board Recommendation and (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel)agrees that its obligations pursuant to this SECTION 5.1 shall not be affected by the commencement, an adjournment public proposal, public disclosure or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of communication to the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary any Acquisition Proposal or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsSuperior Proposal.

Stockholders Meeting. The Company shallwill, as promptly soon as reasonably practicable following after the date on which Proxy Statement is cleared by the SEC (or for mailing to the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary Company’s stockholders in accordance with applicable LawSection 6.3(a), the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders the holders of the Company Shares (the “Company Stockholders’ Meeting”) for the purpose of obtaining seeking the Company Requisite Stockholder ApprovalVote. Subject to the ability of the board of directors The record date of the Company Stockholders’ Meeting shall be selected by the Company after reasonable consultation with Parent. The Company, through the Company Board, shall recommend to make holders of the Company Shares that they vote in favor of the Company Merger so that the Company may obtain the Company Requisite Vote (the “Company Recommendation”) and the Company shall use reasonable best efforts to solicit the Company Requisite Vote (including by soliciting proxies from the Company’s stockholders), except in each case to the extent that the Company Board has effected an Adverse Recommendation Change Change, as permitted by and determined in accordance with Section 6.6(c)6.6. The Company shall keep Parent reasonably informed with respect to proxy solicitation results as reasonably requested by Parent. Unless this Agreement is terminated in accordance with its terms, the board of directors of the Company shall make the Company Recommendation with respect not submit to the adoption vote of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of its stockholders any Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ MeetingAcquisition Proposal. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, Company may adjourn or postpone the Company Stockholders’ Meeting after reasonable consultation with Parent (ia) as to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders holders of Company Shares within a reasonable amount of time in advance of a vote on the Stockholders’ MeetingCompany Merger, (iib) for the absence of a quorum or (c) if as of the additional time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if reasonably required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated herebyCompany Merger; provided, including that, in the Mergercase of this clause (c), and to take all other action necessary or advisable to secure without the vote or written consent of holders Parent, in no event will the Company Stockholders’ Meeting (as so postponed or adjourned) be held on a date that is more than 30 days after the date for which the Company Stockholders’ Meeting was originally scheduled. Unless this Agreement has been terminated in accordance with Article VIII, the obligation of the Company Common stock to duly call, give notice of, convene and hold the Company Stockholders’ Meeting and mail the Proxy Statement (and any amendment or supplement thereto that may be required by Law) to the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.Company’s stockholders will not be affected by an Adverse Recommendation Change. ​ ​ ​

Stockholders Meeting. The (a) Unless there shall be a Change in the Company shallBoard Recommendation (as defined below), as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, Company shall duly take all lawful action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders on a date as soon as reasonably practicable (the “Stockholders’ "Company Stockholders Meeting”") for the purpose of obtaining the Requisite Stockholder Approval. Subject required approval of its stockholders with respect to the ability transactions contemplated by this Agreement, and shall take all lawful action to solicit the adoption of this Agreement, by the board requisite vote of directors its stockholders; and the Board of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors Directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the MergerBoard Recommendation, and shall include not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to Parent such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at or this Agreement or take any action or make any statement in connection with the Stockholders’ Company Stockholders Meeting inconsistent with such recommendation or approval (collectively, a "Change in the Company Board Recommendation"); provided the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be a Change in the approval Company Board Recommendation) of material factual information regarding the business, financial condition or results of operations of Parent or the Company or the fact that an Acquisition Proposal has been made, the identity of the Recapitalization if party making such proposal or the same is submitted to material terms of such proposal (provided, that the holders Board of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors Directors of the Company does not withdraw, modify or qualify (after consultation with legal counselor propose to withdraw, modify or qualify) in any manner adverse to Parent its recommendation), an adjournment to the extent such information, facts, identity or postponement terms is required to be disclosed under applicable law; and, provided further, that the Board of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors Directors of the Company under applicable Law. Subject to the provisions of this Agreement, may make a Change in the Company will use reasonable best efforts Board Recommendation pursuant to solicit from holders of SECTION 5.4 hereof. If there is a Change in the Company Common Stock proxies in favor Board Recommendation and/or this Agreement is terminated, this Agreement need not be submitted to a vote of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsCompany's stockholders.

Stockholders Meeting. (a) From and after the Closing, the Company will take, in accordance with applicable law, the Certificate of Incorporation and Bylaws, all action necessary to present the Shareholder Approval Proposal (as defined below) for a vote at the Company's 1999 annual meeting of stockholders, which meeting shall be held as soon as practicable but in any event prior to the six-month anniversary of the Closing Date (the "Stockholders' Meeting"), including the actions set forth in paragraphs (b), (c), (d) and (e) below. (b) The Company's proxy statement for the 1999 annual meeting of stockholders (as amended or supplemented, the "Proxy Statement") shall include a proposal to consider and vote on the Shareholder Approval (the "Shareholder Approval Proposal"). Subject to the fiduciary duties of the Board of Directors, the Proxy Statement shall contain the recommendation of the Board of Directors of the Company that the stockholders approve the Shareholder Approval Proposal. The Company shallshall notify the Investor promptly of the receipt by it of any comments from the Commission or its staff and of any request by the Commission for amendments or supplements to the Proxy Statement or for additional information and will supply the Investor with copies of all correspondence between the Company and its representatives, as promptly as reasonably practicable following on the date on which one hand, and the SEC (Commission or the members of its staff or of any other governmental officials, on the other hand, with respect to the Proxy Statement. Insofar as it relates to the Shareholder Approval Proposal, the Company shall give the Investor and its counsel the reasonable opportunity to review and comment on the Proxy Statement prior to its being filed with the Commission and shall give the Investor and its counsel the reasonable opportunity to review and comment on 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 Commission. The Company shall give reasonable consideration to any comments the Investor or its counsel may provide with respect to the Proxy Statement or any amendment or supplement thereto insofar as it relates to the Shareholder Approval Proposal. (c) In the event the Shareholder Approval Proposal is not duly approved by the stockholders at the Stockholders' Meeting, the Company shall take all reasonable action necessary, but subject to applicable law, the Certificate of Incorporation and Bylaws to present and the Board of Directors shall recommend the adoption of the SECShareholder Approval Proposal at each meeting of its stockholders held thereafter until the Shareholder Approval Proposal is duly adopted by the stockholders for so long as the Shareholder Approval is required under the NASD Rules for the full conversion of the Senior Preferred Stock into Common Stock and the vesting of full voting rights in the Senior Preferred Stock. (d) confirms Other than with respect to any information with respect to any member of the Investor Group supplied to the Company by such member of the Investor Group in writing specifically for inclusion in the Proxy Statement as to which information the Company makes no representation or warranty, the Company hereby represents and warrants that it has no further comments on the Proxy Statement, take all action as of the date thereof and as of the date of the Stockholders' Meeting, will not include 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 accordance with applicable Lawlight of the circumstances under which they will be made, not misleading. (e) The Investor hereby represents and warrants that the rules of The Nasdaq Capital Market and the Restated Certificate of IncorporationProxy Statement, as amendedof the date thereof and as of the date of the Stockholders' Meeting, will not include 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 will be made, not misleading, to the extent, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject only to the ability of the board of directors of the Company to make an Adverse Recommendation Change extent that such statement or omission was made in accordance reliance upon and in conformity with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation written information with respect to the adoption of this Agreement Investor and its Affiliates supplied to the approval of Company by the transactions contemplated hereby, including the Merger, and shall include such recommendation Investor specifically for inclusion in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.Section 6.8

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SECa) confirms that it has no further comments on the Proxy Statement, GranCare will take all --------------------- action necessary in accordance with applicable Law, the rules law and its Restated Articles of The Nasdaq Capital Market Incorporation and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company By-Laws to duly call, give notice of, convene and hold a special meeting of its stockholders (the “Stockholders’ "Special Meeting”") for the purpose of obtaining the Requisite Stockholder Approval. Subject as soon as practicable to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement consider and vote upon the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will Distribution Agreement and the other transactions contemplated by this Agreement and the Distribution Agreement. GranCare, through its Board of Directors, shall recommend to its stockholders approval of this Agreement, the Distribution Agreement and the other transactions contemplated by this Agreement and the Distribution Agreement (which recommendation shall be contained in the Proxy Statement (as hereinafter defined)) and shall use all commercially reasonable best efforts to solicit from holders of Company Common Stock its stockholders proxies in favor of the approval and adoption of this Agreement, the Distribution Agreement and the other transactions contemplated by this Agreement and the approval Distribution Agreement. GranCare's Board of Directors shall not withdraw, change, modify in any manner or take action inconsistent with its recommendation of the transactions contemplated herebyDistribution, including the Distribution Agreement, the Merger, this Agreement or the other transactions contemplated hereby or thereby and shall not resolve to do any of the foregoing and publicly disclose such resolution; provided, however, that GranCare's Board of Directors may withdraw, change, -------- ------- modify in any manner or take action inconsistent with such recommendation or resolve to do any of the foregoing and publicly disclose such resolution in the event that there is an unsolicited written proposal for a GranCare Acquisition Transaction from a bona fide financially capable third party only if (i) three business days' written notice shall have been given to Vitalink; (ii) GranCare's Board of Directors shall have been advised (A) in writing by its investment banker that such third party is financially capable of consummating a GranCare Acquisition Transaction that would yield a higher value to GranCare's stockholders than will the Merger and (B) by the written opinion of outside counsel to GranCare that recommending this Agreement to the stockholders of GranCare or failing to take all other the action necessary or advisable proposed would be inconsistent with GranCare's Board of Directors' fiduciary duties to secure such stockholders (in providing such opinion GranCare's counsel may assume that California law is not materially different from Delaware law); and (iii) after weighing such advice, GranCare's Board of Directors shall determine that failure to take the vote or consent proposed action would be inconsistent with such Board of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsDirectors' fiduciary duties.

Stockholders Meeting. The Subject to the other provisions of this Agreement, the Company shall, shall (i) as promptly as reasonably practicable following the date on which and in any event not later than ten (10) Business Days after the SEC (or the staff of the SEC) confirms that it has no further comments on on, or otherwise clears, the Schedule 13E-3 and the Proxy Statement, take all action necessary in accordance with applicable Law, required under the rules DGCL and its Certificate of The Nasdaq Capital Market Incorporation and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders promptly following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Stockholders’ Meeting”) for ), with the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability record date and meeting date of the board of directors of Stockholders’ Meeting to be determined by the Company after good faith consultation with Parent, and (ii) subject to make an Adverse a Change in Company Recommendation Change in accordance with Section 6.6(c)6.2, the board of directors of the Company shall make the Company Recommendation with respect (x) recommend to the adoption of stockholders that they approve and adopt this Agreement and the approval of the transactions contemplated hereby, including the MergerAgreement, and shall include such recommendation in the Proxy Statement. Parent shall vote , (or cause y) use its reasonable best efforts to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, solicit from its stockholders proxies in favor of the adoption of this Agreement and the approval of the Merger at Transactions, and (z) take all other actions necessary or advisable to secure the Stockholders’ Meeting and Stockholder Approval. Upon prior written request of Parent, the approval of the Recapitalization if the same is submitted Company shall use its commercially reasonable efforts to advise Parent on a current basis prior to the holders date of Company Common Stock for approval at the Stockholders’ Meeting, as to the aggregate tally of proxies received by the Company with respect to the Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company may, and Parent may request in writing that the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting Meeting, if and to the extent the Special Committee determines in good faith (i) as such adjournment or postponement is necessary or advisable to ensure that any required supplement or amendment to the Proxy Statement that is required by applicable Law is timely provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingstockholders, (ii) if as of at the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) proceeds to business there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, or (iii) if additional time is required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsAgreement.

Stockholders Meeting. The If the adoption of this Agreement by the Company’s stockholders is required by applicable Law, subject to Section 5.2(b), the Company shall, as promptly as reasonably practicable following (and in any event within five (5) Business Days) after the later of (i) the Offer Termination Date and (ii) the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market NASDAQ and the Restated Certificate of Incorporation, as amended, Incorporation and the BylawsBylaws to establish a record date, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) Meeting for the purpose of obtaining the Requisite Stockholder Approval. Subject ; provided, however, that, except as may be required by applicable Law or an Order of any Governmental Authority, in no event shall such meeting be set for a date later than 30 calendar days following the date the Proxy Statement is mailed to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ MeetingCompany’s stockholders. Notwithstanding anything to the contrary contained set forth in this Agreement, any adjournments or postponements of such meeting shall require the prior written consent of Parent, except that (i) the Company may adjourn the Stockholder Meeting in the case and then only to the extent that such adjournment is required to allow additional time for the filing and mailing of any supplemental or amended disclosure which the SEC (or the staff of the SEC) has instructed the Company is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders’ Meeting, and (ii) the Company, after consultation with Parent, may (or upon the written request of Parent, shall) adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are either (A) insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law Meeting or (ivB) if in insufficient affirmative votes to adopt this Agreement; provided, that the good faith judgment of the board of directors of record date shall not be changed without Parent consent (not to be unreasonably withheld, conditioned or delayed). Unless the Company (after consultation Board shall have effected an Adverse Recommendation Change as permitted in accordance with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this AgreementSection 5.6, the Company will shall use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and shall ensure that all proxies solicited in connection with the approval Stockholders’ Meeting are solicited in compliance with all applicable Laws and all rules of NASDAQ. For the avoidance of doubt, unless this Agreement is validly terminated in accordance with Section 7.1, an Adverse Recommendation Change (or a proposed or announced intention to do so) shall not relieve the Company of its obligation hereunder to give notice of, convene and hold the Stockholders’ Meeting. The Company shall, upon the reasonable request of Parent, advise Parent at least on a daily basis on each of the last seven (7) Business Days prior to the scheduled date of the Stockholders’ Meeting as to the aggregate tally of affirmative proxies received by the Company with respect to the Requisite Stockholder Approval. Without the prior written consent of Parent, except as required by applicable Law, the adoption of this Agreement and the transactions contemplated hereby, hereby (including the Merger) shall be the only matter (other than procedural matters) which the Company shall propose to be acted on by the stockholders of the Company at the Stockholders’ Meeting. Notwithstanding the foregoing and Section 5.2, if, following the Offer Closing and to take all other action necessary or advisable to secure the vote or consent exercise, if any, of holders the Top-Up Option, Parent and its affiliates shall own at least ninety percent (90%) of the outstanding shares of Company Common stock required Stock, the parties hereto shall take all necessary and appropriate action, including with respect to the transfer to Merger Sub of any shares of Company Common Stock held by Parent or its affiliates, to cause the rules Merger to become effective as soon as reasonably practicable after the Offer Closing without the Proxy Statement and the Stockholders’ Meeting in accordance with the terms and conditions of The Nasdaq Capital Market or applicable Laws to obtain such approvalsthis Agreement and Section 253 of the DGCL.

Stockholders Meeting. The Company Company, acting through its Board of Directors (or a committee thereof), shall, as promptly as reasonably practicable following the date on which confirmation by the SEC (or that the staff of the SEC) confirms that it SEC has no further comments on the Proxy StatementStatement (but subject to the last sentence of this Section 6.3), take all action necessary in accordance with applicable Law, required under the rules of The Nasdaq Capital Market DGCL and the Restated Certificate Certification of Incorporation, as amended, Incorporation and the Bylaws, as amended, Bylaws and the applicable requirements of the Company New York Stock Exchange necessary to promptly and duly call, give notice of, convene and hold as promptly as practicable a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining approving and adopting this Agreement (including any adjournment or postponement thereof, the Requisite Stockholder Approval. Subject “Stockholders Meeting”), with the record date and meeting date of the Stockholders Meeting to be selected after reasonable consultation with Parent; provided that the Company may postpone, recess or adjourn such meeting solely (i) to the ability extent required by Law, (ii) with the written consent of Parent, (iii) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Company Requisite Vote or (iv) in the absence of a quorum. The Company, acting through its Board of Directors (or a committee thereof), shall, subject to Section 6.1(c), (a) make the Recommendation and, subject to the consent of the board of directors Financial Advisor, include in the Proxy Statement the Recommendation and the written opinion of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c)Financial Advisor, dated as of the date of this Agreement, that, as of such date, the board aggregate Per Share Merger Consideration is fair, from a financial point of directors view, to the holders of the Company shall make Common Stock, (b) reaffirm the Company Recommendation with (which Recommendation shall, for the avoidance of doubt, be in respect to the adoption of this Agreement and the approval Merger, as may be modified pursuant to any changes to the terms of this Agreement irrevocably offered in writing by Parent pursuant to, and in accordance with, Section 6.1(c)(iii) or Section 6.1(d), as applicable) within five (5) Business Days of a request therefor by Parent following the date on which any Acquisition Proposal or material modification thereto is received by the Company or is published, sent or communicated to the Company’s stockholders (or, if the Stockholders Meeting is scheduled to be held within five (5) Business Days of such request, within one (1) Business Day after such request and in any event, prior to the date of the transactions contemplated herebyStockholders Meeting) (provided, including that Parent may not make any such request on more than one (1) occasion) and (c) use its reasonable best efforts to solicit from its stockholders proxies to obtain the MergerCompany Requisite Vote and take all other action necessary or advisable to obtain the Company Requisite Vote required by the DGCL, the Certificate of Incorporation, the Bylaws and shall the applicable requirements of the New York Stock Exchange; provided, that the Board of Directors of the Company may fail to include such recommendation the Recommendation in the Proxy Statement. Parent shall vote (Statement or cause withdraw, modify, qualify or change the Recommendation, or formally resolve to be voted) all shares of Company Common Stock beneficially owned by Parent effect or Merger Sub, if any, in favor publicly announce an intention to effect any of the adoption foregoing (a “Change of this Agreement and the approval Recommendation”) solely in accordance with Section 6.1(c)(iii) and, following such Change of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted Recommendation, may fail to the holders of Company Common Stock for approval at the Stockholders’ Meetinguse such reasonable best efforts. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone Company shall not be required to hold the Stockholders’ Stockholders Meeting (i) as necessary to ensure that any required supplement or amendment prior to the Proxy Statement No-Shop Period Start Date or if this Agreement is provided validly terminated in accordance with its terms. Notwithstanding anything to the Company’s stockholders within a reasonable amount contrary in this Agreement, unless this Agreement has been validly terminated pursuant to Article VIII, if the Board of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors Directors of the Company (after consultation with legal counsel), an adjournment or postponement shall have made a Change of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this AgreementRecommendation, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of shall nonetheless submit this Agreement and the approval transactions contemplated hereby to the stockholders at the Stockholders Meeting and shall not submit any alternate Acquisition Proposal for adoption by the stockholders of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsCompany.

Stockholders Meeting. The Company shallwill take, in accordance with applicable Law and its certificate of incorporation and by-laws, all action necessary to establish a record date for, duly call, give notice of, convene a meeting of holders of Shares (the "Stockholders Meeting") as promptly as reasonably practicable following after the date on which that the SEC (or staff informs the staff of the SEC) confirms Company that it has no further comments on the preliminary Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market to consider and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to vote upon the adoption of this Agreement Agreement, and the approval Company shall conduct in a timely manner a "broker search" in accordance with Rule 14a-13 of the transactions contemplated hereby, including Exchange Act in connection therewith; provided that in no event shall the Merger, and shall include such recommendation in Company be required to hold the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Stockholders Meeting and the approval of the Recapitalization if the same is submitted prior to the holders fifth business day after the earlier of Company Common Stock for approval at (x) the Stockholders’ MeetingCut-Off Date and (y) the first date from and after the Go-Shop Period End Date as of which no Person qualifies as an Excluded Person. Notwithstanding anything to Following the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to distribution of the Proxy Statement is provided pursuant to Section 6.3, the Company’s stockholders within a reasonable amount of time in advance date of the Stockholders’ MeetingStockholders Meeting may not be adjourned or postponed, except the Stockholder Meeting may be adjourned or postponed from time to time and at any time by the Company (ii) if as of and shall be adjourned or postponed by the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meetingreasonable request of Parent in circumstances described in clauses (b) or (d)): (a) with the consent of Parent (not to be unreasonably withheld, conditioned or delayed); (iiib) if for the absence of a quorum; (c) as the Company Board or any duly constituted committee thereof determines in good faith is required by applicable Law or (iv) if Law, including in connection with the good faith judgment discharge of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members Company Board to the extent necessary to allow for the filing or distribution of any supplemental or amended disclosure with respect to the board of directors of transactions contemplated by this Agreement which the Company Board has determined in good faith (after consultation with its outside legal counsel) is necessary under applicable LawLaws and for such supplemental or amended disclosure to be disseminated to and reviewed by the Company's 44 stockholders prior to the Stockholders Meeting; or (d) to solicit additional proxies if the Company or Parent reasonably believes doing so may be necessary to obtain the Requisite Company Vote. Subject to the provisions of this AgreementSection 6.2 hereof, the Company will Board shall recommend such adoption and shall use reasonable best efforts to take customary lawful actions to solicit from holders of Company Common Stock proxies in favor of the such adoption of this Agreement. For the avoidance of doubt, to the extent the Company Board makes a Change of Recommendation, the Company nevertheless shall continue to submit this Agreement and to the approval stockholders of the transactions contemplated hereby, including Company for adoption at the Merger, and Stockholders Meeting unless this Agreement shall been terminated in accordance with its terms prior to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsStockholders Meeting.

Stockholders Meeting. No later than ten (10) days from the later of the date of this Agreement or Seller's receipt of Purchaser's information to be included in the Information Statement (as such term is defined below), the Seller and Purchaser shall finalize an information statement relating to the approval of the Transactions by the Seller's stockholders (the "Information Statement"). The Company Seller and Purchaser shall provide and include in the Information Statement such information relating to the Seller and Purchaser and the Seller's stockholders as required pursuant to the provisions of applicable securities and corporate laws (including, without limitation, Rule 502 under the Securities Act). The Seller shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with its certificate of incorporation and bylaws and the applicable requirements of the Delaware General Corporation Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene call and hold a special meeting of its stockholders (the “Stockholders’ Meeting”) as promptly as practicable for the purpose of obtaining permitting them to consider and to vote upon and approve the Requisite Stockholder Approvalprincipal terms of the Transactional Documents (the "Seller Stockholders' Meeting"). Subject The Seller shall cause a copy of the Information Statement to be mailed to each stockholder of the Seller. As promptly as practicable after the delivery of copies of the Information Statement to all stockholders of the Seller, the Seller shall use all commercially reasonable efforts to cause each of such stockholders who is not an "accredited investor" (as defined in Rule 501 under the Securities Act) to appoint a "purchaser representative" (as defined in Rule 501 under the Securities Act) in connection with evaluating the merits and risks of investing in Purchaser Common Stock and to cause each of such stockholders to execute and deliver to Purchaser a stockholder representation letter in the form prepared by the Purchaser and reasonably acceptable to the ability Seller. In lieu of calling and holding the board of directors of Seller Stockholders' Meeting, the Company to make an Adverse Recommendation Change Seller may solicit written consents in accordance with Section 6.6(c), its certificate of incorporation and bylaws and the board of directors applicable requirements of the Company shall make Delaware General Corporation Law (and the Company Recommendation parties hereto acknowledge that the Seller currently intends to do so). Purchaser will reasonably cooperate with the Seller with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as matters set forth in this Section 4.9. Purchaser and the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person Seller will each promptly provide all information relating to its business or by proxy) to constitute a quorum operations necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if for inclusion in the good faith judgment Information Statement to satisfy all requirements of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement state and the approval of the transactions contemplated hereby, including the Merger, federal securities and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalscorporate laws.

Stockholders Meeting. The Subject to the other provisions of this Agreement, the Company shall, shall (i) as promptly as reasonably practicable following the date on which and in any event no later than ten (10) Business Days after the SEC (or the staff of the SEC) confirms that it has no further comments on on, or otherwise clears, the Schedule 13E-3 and the Proxy Statement, take all action necessary in accordance with applicable Law, required under the rules NRS and its Articles of The Nasdaq Capital Market Incorporation and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company Bylaws to duly call, give notice of, convene and hold a meeting of its stockholders promptly following the mailing of the Proxy Statement for the purpose of obtaining the Company Stockholder Approval (the “Stockholders’ Meeting”) for ), with the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability record date and meeting date of the board of directors of Stockholders’ Meeting to be determined by the Company after good faith consultation with Parent, and (ii) subject to make an Adverse a Change in Company Recommendation Change in accordance with Section 6.6(c)6.2, the board of directors of the Company shall make the Company Recommendation with respect (x) recommend to the adoption of stockholders that they approve and adopt this Agreement and the approval of the transactions contemplated hereby, including the MergerAgreement, and shall include such recommendation in the Proxy Statement. Parent shall vote , (or cause y) use its reasonable best efforts to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, solicit from its stockholders proxies in favor of the adoption of this Agreement and the approval of the Merger at Transactions and (z) take all other actions necessary or advisable to secure the Stockholders’ Meeting and Company Stockholder Approval. Upon prior written request of Parent, the approval of the Recapitalization if the same is submitted Company shall use its commercially reasonable efforts to advise Parent on a current basis prior to the holders date of Company Common Stock for approval at the Stockholders’ Meeting, as to the aggregate tally of proxies received by the Company with respect to the Company Stockholder Approval. Notwithstanding anything to the contrary contained in this Agreement, the Company may, and Parent may request in writing that the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting Meeting, if and to the extent the Special Committee, determines in good faith (i) as such adjournment or postponement is necessary to ensure that any required supplement or amendment to the Proxy Statement that is required by applicable Law is timely provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meetingstockholders, (ii) if as of at the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) proceeds to business there are insufficient shares of Company Common Stock Shares represented (either in person or by proxy) to constitute a quorum necessary or advisable to conduct business at the Stockholders’ Meeting, or (iii) if additional time is required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsAgreement.

Stockholders Meeting. The Company shall(a) Subject to Section 6.2, following the time the SEC indicates it will not review or have any further comments with respect to the Proxy Statement (or if no communication is received from the SEC indicating it intends to review, as promptly soon as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statementpermitted by applicable Law), Seller will take all action actions necessary in accordance with applicable Law, Seller’s organizational documents and the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”Meeting as promptly as practicable following the twentieth (20th) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability Business Day following mailing of the board Proxy Statement to Seller stockholders, but in no event later than the thirtieth (30) Business Day following such mailing of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent Seller shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor provide Buyer with notice of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Stockholder’s Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meetingas promptly as practicable. Notwithstanding anything to the contrary contained in this Agreement, the CompanySeller may, after in consultation with ParentBuyer, may and shall, at the written request of Buyer, adjourn or postpone the Stockholders’ Meeting (i) as to the extent required by applicable Law or if, after consultation with Buyer, Seller determines such adjournment or postponement necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders of Seller within a reasonable amount of time in advance of the Stockholders’ MeetingMeeting if such disclosure is determined by Seller in good faith after consultation with outside counsel to be required to be provided to the stockholders of Seller, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock Seller common stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ Meeting, or (iii) to solicit additional proxies if required necessary to obtain Stockholder Approval; provided, however, that, unless otherwise agreed to by applicable Law or each of Buyer and Seller, (ivx) if in the good faith judgment with respect to each of the board of directors of the Company foregoing clauses (after consultation with legal counselii) and (iii), an adjournment or postponement of the Stockholders’ Meeting would will not be consistent adjourned or postponed in connection with any one adjournment or postponement to a date that is more than thirty (30) days in the fiduciary duties of aggregate without Buyer’s prior written consent and in no event shall any adjournment or postponement be to a date that is fewer than thirteen (13) Business Days prior to the members of the board of directors of the Company under applicable LawOutside Date). Subject to the express provisions of Section 6.2 regarding a Seller Adverse Recommendation Change, Seller shall (i) recommend that Seller’s stockholders adopt this Agreement, the Company will Agreement at Stockholders’ Meeting and (ii) use its commercially reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated herebyobtain Stockholder Approval, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalssoliciting proxies therefor.

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold FHI shall call a meeting of its stockholders (the “Stockholders’ Meeting”) to be held as promptly as practicable for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to voting upon the adoption of this Agreement and the approval Agreement. FHI will, through its Board of the transactions contemplated herebyDirectors, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause recommend to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the its stockholders adoption of this Agreement unless the Board of Directors of FHI determines in good faith, after having consulted with and considered the advice of its financial advisors and outside counsel, that making such recommendation, or failing to withdraw, modify or amend any previously made recommendation, would be reasonably likely to constitute or result in a breach of fiduciary 43 35 duty by FHI's Board of Directors under applicable law. FHI agrees that it will, upon the request of BancWest, postpone or recess such stockholders' meeting for such period as BancWest shall reasonably request, if, for any reason the trustees under The Will and of the Estate of S.M. Xxxxx xxxll have failed in any material respect to have complied with their obligations under the Stockholders Agreement, dated as of the date hereof, between BNP and the approval trustees under The Will and of the Merger Estate of S.M. Xxxxx (xxe "Stockholders Agreement") at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted or prior to the holders date of Company Common Stock for approval such meeting, or shall have indicated to BancWest their intention so to do, in order to afford BNP an opportunity to enforce its rights under the Stockholders Agreement, including by way of court action, unless it is reasonably likely that the FHI Stockholder Approval will be obtained at the Stockholders’ Meetingsuch meeting. Notwithstanding anything to the contrary contained In addition, nothing in this Agreement, the Company, after consultation with Parent, may adjourn Section 5.3 or postpone the Stockholders’ Meeting (i) as necessary elsewhere in this Agreement shall prohibit accurate disclosure by FHI of information that is required to ensure that any required supplement or amendment to be disclosed in the Proxy Statement is provided or any other document required to be filed with the Company’s stockholders within SEC (including without limitation a reasonable amount of time in advance of the Stockholders’ Meeting, (iiSolicitation/Recommendation Statement on Schedule 14D-9) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) otherwise required to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required be disclosed by applicable Law law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment regulation or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market any securities exchange or applicable Laws to obtain such approvalsautomated quotation system on which the securities of FHI may then be traded.

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members Company Board under applicable law, in addition to the solicitation of stockholder approval required under Section 6.6, if requested by Parent in writing (a “Meeting Request”) at any time during the board of directors Option Period, the Company shall (a) cause a meeting of the Company under Stockholders (a “Stockholders Meeting”), to be called for purposes of approving, reapproving or ratifying the Merger and this Agreement, or (b) circulate a solicitation for written consent in lieu of such Stockholders Meeting for the same purposes. In the event that Parent delivers a Meeting Request pursuant to this Section 6.3, the Company shall cause a Stockholders Meeting to be held on such date as may be reasonably requested by Parent and set forth in the Meeting Request and is consistent with the Company’s bylaws and applicable Lawlaw, and shall distribute on a timely basis to all stockholders of the Company any soliciting materials relating to such meeting (including a Joint Statement in accordance with Section 6.4 below, and any other information statement, proxy statement or prospectus prepared by Parent and, to the extent such information statement or proxy statement relates to the Company or the Merger, reasonably approved by the Company). Subject to the provisions fiduciary duties of the Company Board under applicable law, any such information statement, proxy statement or prospectus shall be distributed together with a copy of the recommendation of the Company Board that the Company Stockholders vote “FOR” the approval and adoption of the Merger and this Agreement. In the event that Parent circulates a solicitation for written consent in lieu of such Stockholders Meeting, the Company will use reasonable best efforts shall distribute to solicit from holders of the Company Common Stock proxies Stockholders, together with such written consent, any materials that would have been required to be distributed to the Company Stockholders in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsconnection with a Stockholders Meeting.

Stockholders Meeting. The Company shall, Detective shall as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market this Agreement call and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company cause to duly call, give notice of, convene and hold be held a stockholders meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining approving the Requisite Stockholder Approval. Subject to Merger and the ability issuance of the board Detective Shares and the Lynx Option and the other matters contemplated by this Agreement including, without limitation, the Amended and Restated Certificate of directors Incorporation of Detective, which shall be in form and substance reasonably satisfactory to Detective and Lynx (the "Amended Charter"), and the election of the Company Post-Closing Directors. In connection therewith, subject to make an Adverse Recommendation Change in accordance with Section 6.6(c6.03(b), the board Board of directors Directors of Detective shall declare advisable and recommend the approval of the Company Merger, the Amended Charter, the election of the Post-Closing Directors to Detective's Board of Directors and such other matters necessary in connection with the consummation of the transactions contemplated herein, and shall make prepare and file with the Company Recommendation SEC under the Exchange Act, and shall use all reasonable efforts to have promptly cleared by the SEC, and promptly thereafter shall mail to its stockholders, the proxy materials, as they may be amended and supplemented, to be used in connection with such stockholder meeting (the "Proxy Material"). Detective shall provide Lynx with a reasonable opportunity to review and comment upon the Proxy Material prior to its filing with the SEC and distribution to Detective's stockholders. Detective shall promptly and properly prepare and file any other filings required under the Exchange Act or any other Federal or state laws relating to the transactions contemplated herein (collectively, the "Other Filings"). Detective shall notify Lynx promptly of the receipt of any comments of the SEC and of any request by the SEC for amendments or supplements to the Proxy Material or by any other governmental official with respect to any Other Filings or for additional information and will supply Lynx with copies of all correspondence between Detective and its representatives, on the one hand, and the SEC or the members of its staff or any other appropriate government official, on the other hand, with respect to the adoption of this Agreement Proxy Material and any Other Filings. Detective shall obtain and furnish the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation information required to be included in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement Material and the approval of the Merger at the Stockholders’ Meeting any Other Filings; and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the CompanyDetective, after consultation with ParentLynx, may adjourn or postpone the Stockholders’ Meeting shall (iand Lynx agrees to reasonably cooperate with Detective in connection therewith) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.respond promptly

Stockholders Meeting. The Company shall, Detective shall as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market this Agreement call and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company cause to duly call, give notice of, convene and hold be held a stockholders meeting of its stockholders (the “Stockholders’ Meeting”) for the purpose of obtaining approving the Requisite Stockholder Approval. Subject to Merger and the ability issuance of the board Detective Shares and the Lynx Option and the other matters contemplated by this Agreement including, without limitation, the Amended and Restated Certificate of directors Incorporation of Detective, which shall be in form and substance reasonably satisfactory to Detective and Lynx (the "AMENDED CHARTER"), and the election of the Company Post-Closing Directors. In connection therewith, subject to make an Adverse Recommendation Change in accordance with Section 6.6(c6.03(b), the board Board of directors Directors of Detective shall declare advisable and recommend the approval of the Company Merger, the Amended Charter, the election of the Post-Closing Directors to Detective's Board of Directors and such other matters necessary in connection with the consummation of the transactions contemplated herein, and shall make prepare and file with the Company Recommendation SEC under the Exchange Act, and shall use all reasonable efforts to have promptly cleared by the SEC, and promptly thereafter shall mail to its stockholders, the proxy materials, as they may be amended and supplemented, to be used in connection with such stockholder meeting (the "PROXY MATERIAL"). Detective shall provide Lynx with a reasonable opportunity to review and comment upon the Proxy Material prior to its filing with the SEC and distribution to Detective's stockholders. Detective shall promptly and properly prepare and file any other filings required under the Exchange Act or any other Federal or state laws relating to the transactions contemplated herein (collectively, the "OTHER FILINGS"). Detective shall notify Lynx promptly of the receipt of any comments of the SEC and of any request by the SEC for amendments or supplements to the Proxy Material or by any other governmental official with respect to any Other Filings or for additional information and will supply Lynx with copies of all correspondence between Detective and its representatives, on the one hand, and the SEC or the members of its staff or any other appropriate government official, on the other hand, with respect to the adoption of this Agreement Proxy Material and any Other Filings. Detective shall obtain and furnish the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation information required to be included in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement Material and the approval of the Merger at the Stockholders’ Meeting any Other Filings; and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the CompanyDetective, after consultation with ParentLynx, may adjourn or postpone shall (and Lynx agrees to reasonably cooperate with Detective in connection therewith) respond promptly to any comments made by the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment SEC with respect to the Proxy Statement is provided Material and any Other Filings and any preliminary version thereof and cause the Proxy Material and related form of proxy to be mailed to its stockholders at the earliest practicable time. Detective shall notify Lynx of its intention to mail the Proxy Material to the Company’s stockholders within a reasonable amount of Detective at least 48 hours prior to the intended time of such mailing. Detective represents and warrants that the information (other than information with respect to the Lynx Companies which is supplied by Lynx in advance of the Stockholders’ Meeting, (ii) if as of the time writing to Detective specifically for which the Stockholders’ Meeting is originally scheduled (as set forth use in the Proxy StatementMaterial) there are insufficient shares contained in the Proxy Material will not, at the date of Company Common Stock represented (either mailing to Detective's stockholders or at the date of such stockholder meeting, contain any statement which, at the time and in person light of the circumstances under which it is made, be false or by proxy) misleading with respect to constitute a quorum any material fact required to be stated therein or necessary to conduct business correct any statement in any earlier communication with respect to the solicitation of proxies for such stockholder meeting. Detective represents and warrants that the Proxy Material will comply as to form in all material respects with the Exchange Act and the rules and regulations of the Commission thereunder. Lynx and Lynx Parent represent and warrant that the information supplied by Lynx or Lynx Parent in writing to Detective and Acquisition Sub specifically for use in the Proxy Material will not, at the Stockholders’ Meetingdate of mailing to Detective's stockholders or at the date of such stockholder meeting, (iii) if required by applicable Law or (iv) if contain any statement which, at the time and in the good faith judgment light of the board of directors of the Company (after consultation circumstances under which it is made, be false or misleading with legal counsel), an adjournment respect to any material fact required to be stated therein or postponement of the Stockholders’ Meeting would be consistent necessary to correct any statement in any earlier communication with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject respect to the provisions solicitation of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain for such approvalsstockholder meeting.

Stockholders Meeting. The Company shall, as promptly as reasonably practicable (a) Promptly following the date on which Initial Closing Date, the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, Company shall take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold call a meeting of its stockholders (the “Stockholders’ Stockholders Meeting”) for the purpose of obtaining seeking approval of the Requisite Stockholder Approval. Subject Company’s stockholders for the issuance of the Call Shares, the Call Exercise Warrants, the Second Closing Warrants, the Aggregate Incremental Warrant Shares and the Warrant Shares issuable upon exercise or otherwise pursuant to the ability of Second Closing Warrants (the board of directors "Proposal”). In connection therewith, no later than twenty-one (21) calendar days after the Initial Closing Date, the Company shall prepare and file with the SEC a proxy statement for the Stockholders Meeting (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”). The Company shall use its reasonable Best Efforts to cause the Proxy Statement to be cleared by the SEC (“SEC Clearance”) and mailed to the stockholders of the Company to make an Adverse Recommendation Change in accordance as promptly as practicable after filing. The Company shall provide the Call Investors and their counsel with Section 6.6(c)copies of any written comments or correspondence, the board and shall inform them of directors of any oral comments or discussions, that the Company shall make or its counsel may receive or have from time to time with the Company Recommendation SEC or its staff with respect to the adoption Proxy Statement promptly after such discussions, or the Company’s receipt of this Agreement such comments or correspondence, and any written or oral responses thereto. The Company shall respond promptly to any comments made by the approval SEC with respect to the Proxy Statement. The Stockholders Meeting shall occur not later than January 31, 2009 (the “Stockholders Meeting Deadline”); provided however, that if, notwithstanding the exercise of the transactions contemplated herebyCompany’s reasonable Best Efforts, including the MergerCompany is unable to obtain SEC Clearance of the Proxy Statement by January 1, 2009, the Stockholders Meeting Deadline shall be automatically extended to February 28, 2009. Each Investor shall promptly furnish in writing to the Company such information relating to such Investor and shall include such recommendation its investment in the Company as the Company may reasonably request for inclusion in the Proxy Statement. Parent The Company will comply with Section 14(a) of the Exchange Act and the rules promulgated thereunder in relation to any Proxy Statement to be sent to the stockholders of the Company in connection with the Stockholders Meeting, and the Proxy Statement shall vote not, on the date that the Proxy Statement (or cause any amendment thereof or supplement thereto) is first mailed to stockholders or at the time of the Stockholders Meeting, contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements made therein not false or misleading, or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies or the Stockholders Meeting which has become false or misleading. If the Company should discover at any time prior to the Stockholders Meeting any event relating to the Company or any of its affiliates, officers or directors that is required to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, set forth in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required a supplement or amendment to the Proxy Statement is provided Statement, in addition to the Company’s stockholders within a reasonable amount of time in advance of obligations under the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this AgreementExchange Act, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of promptly inform the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsInvestors thereof.

Stockholders Meeting. The Company shall, as (a) As promptly as reasonably practicable following the date on which hereof, the Company shall prepare and file with the Securities and Exchange Commission (the “SEC”), a proxy statement (together with any amendments thereof or supplements thereto and any other required proxy materials, the “Proxy Statement”) for a special meeting of its stockholders ((including any adjournment or postponement thereof) the “Special Meeting”) relating to the Merger and this Agreement; provided, that Parent, Purchaser and their counsel shall be given a reasonable opportunity to review the Proxy Statement before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. Subject to Section 5.2, the Company shall include in the Proxy Statement the Company Board Recommendation (unless the Company Board of Directors withdraws or modifies its Company Board Recommendation in accordance with Section 5.2). The Company shall use its reasonable efforts to obtain and furnish the information required to be included by the SEC in the Proxy Statement and, after consultation with Purchaser, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Purchaser and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may receive from time to time from the SEC or its staff with respect to the Proxy Statement promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Purchaser and their counsel shall be given a reasonable opportunity to review any such written responses and the SEC) confirms Company shall give due 31344360_15 consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Purchaser and their counsel. The Company, on the one hand, and Parent and Purchaser, on the other hand, agree to promptly correct any information provided by it for use in the Proxy Statement if and to the extent that it has no such information shall have become false or misleading in any material respect or as otherwise required by applicable Laws, and the Company further comments on agrees to cause the Proxy Statement, take all action necessary as so corrected (if applicable), to be filed with the SEC and, if any such correction is made following the mailing of the Proxy Statement as provided in accordance with applicable LawSection 1.6(b), mailed to holders of the rules Shares, in each case as and to the extent required by the Securities Exchange Act of The Nasdaq Capital Market and the Restated Certificate of Incorporation1934, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene rules and hold a meeting of its stockholders regulations promulgated thereunder (the “Stockholders’ MeetingExchange Act”) for or the purpose of obtaining the Requisite Stockholder Approval. Subject to the ability of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote SEC (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders within a reasonable amount of time in advance of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counselits staff), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvals.

Stockholders Meeting. The Company shall, as (a) As promptly as reasonably practicable following the date on which of this Agreement (and in any event within ten (10) Business Days), the SEC Company shall prepare and file as promptly as practicable with the Securities and Exchange Commission (or the staff “SEC”) a proxy for a special meeting of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its Company’s stockholders (the “Stockholders’ Special Meeting”) for (together with any amendments thereof or supplements thereto and any other required proxy materials, the purpose of obtaining the Requisite Stockholder Approval. Subject “Proxy Statement”) relating to the ability of Merger and this Agreement; provided, that Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the board of directors Proxy Statement before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel with the intention that the Proxy Statement be in a form ready to print and mail to the stockholders of the Company as promptly as practicable following the date of this Agreement. Parent and Merger Sub shall promptly furnish to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make in writing all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation for inclusion in the Proxy Statement. Parent Subject to Section 5.2(c) hereof, the Company shall include in the Proxy Statement the recommendation of the Company Board of Directors that stockholders of the Company vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement in accordance with the DGCL (the “Company Recommendation”) and the approval opinion of the Merger at Company Financial Advisor referred to in Section 3.19. The Company shall use its reasonable best efforts to obtain and furnish the Stockholders’ Meeting and information required to be included by the approval of SEC in the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the CompanyProxy Statement and, after consultation with Merger Sub, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Merger Sub and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may adjourn receive from time to time from the SEC or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment its staff with respect to the Proxy Statement is provided promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to the Company’s stockholders within a reasonable amount unless it has first obtained the consent of time in advance of Parent and Merger Sub to such mailing, which consent shall not be unreasonably withheld, conditioned or delayed. The Company, on the Stockholders’ Meetingone hand, (ii) if as of and Parent and Merger Sub, on the time other hand, agree to promptly correct any information provided by it for which the Stockholders’ Meeting is originally scheduled (as set forth use in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either Statement if and to the extent that it shall have become false or misleading in person any material respect or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if as otherwise required by applicable Law or Law, and the Company further agrees to cause the Proxy Statement, as so corrected (iv) if in applicable), to be filed with the good faith judgment SEC and, if any such correction is made following the mailing of the board Proxy Statement as provided in Section 1.6(b)(ii), mailed to holders of directors shares (the “Shares”) of common stock, par value $0.01 per share, of the Company (after consultation with legal counselthe “Common Stock”), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject in each case as and to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock extent required by the Securities Exchange Act of 1934, as amended, and the rules of The Nasdaq Capital Market and regulations promulgated thereunder (the “Exchange Act”) or applicable Laws to obtain such approvalsthe SEC (or its staff).

Stockholders Meeting. The Company shall, as (a) As promptly as reasonably practicable following the date on which of this Agreement (and in any event within ten (10) Business Days), the SEC Company shall prepare and file as promptly as practicable with the Securities and Exchange Commission (or the staff “SEC”) a proxy for a special meeting of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold a meeting of its Company’s stockholders (the “Stockholders’ Special Meeting”) for (together with any amendments thereof or supplements thereto and any other required proxy materials, the purpose of obtaining the Requisite Stockholder Approval. Subject “Proxy Statement”) relating to the ability of Merger and this Agreement; provided, that Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review the board of directors Proxy Statement before it is filed with the SEC and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel with the intention that the Proxy Statement be in a form ready to print and mail to the stockholders of the Company as promptly as practicable following the date 2 of this Agreement. Parent and Merger Sub shall promptly furnish to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make in writing all information concerning Parent and Merger Sub that may be required by applicable securities Laws or reasonably requested by the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation for inclusion in the Proxy Statement. Parent Subject to Section 5.2(c) hereof, the Company shall include in the Proxy Statement the recommendation of the Company Board of Directors that stockholders of the Company vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement in accordance with the DGCL (the “Company Recommendation”) and the approval opinion of the Merger at Company Financial Advisor referred to in Section 3.19. The Company shall use its reasonable best efforts to obtain and furnish the Stockholders’ Meeting and information required to be included by the approval of SEC in the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the CompanyProxy Statement and, after consultation with Merger Sub, respond promptly to any comments made by the SEC with respect to the Proxy Statement. The Company shall provide Parent, Merger Sub and their counsel with copies of any written comments, and shall inform them of any oral comments, that the Company or its counsel may adjourn receive from time to time from the SEC or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment its staff with respect to the Proxy Statement is provided promptly after the Company’s receipt of such comments, and any written or oral responses thereto. Parent, Merger Sub and their counsel shall be given a reasonable opportunity to review any such written responses and the Company shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to the Company’s stockholders within a reasonable amount unless it has first obtained the consent of time in advance of Parent and Merger Sub to such mailing, which consent shall not be unreasonably withheld, conditioned or delayed. The Company, on the Stockholders’ Meetingone hand, (ii) if as of and Parent and Merger Sub, on the time other hand, agree to promptly correct any information provided by it for which the Stockholders’ Meeting is originally scheduled (as set forth use in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either Statement if and to the extent that it shall have become false or misleading in person any material respect or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if as otherwise required by applicable Law or Law, and the Company further agrees to cause the Proxy Statement, as so corrected (iv) if in applicable), to be filed with the good faith judgment SEC and, if any such correction is made following the mailing of the board Proxy Statement as provided in Section 1.6(b)(ii), mailed to holders of directors shares (the “Shares”) of common stock, par value $0.01 per share, of the Company (after consultation with legal counselthe “Common Stock”), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject in each case as and to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock extent required by the Securities Exchange Act of 1934, as amended, and the rules of The Nasdaq Capital Market and regulations promulgated thereunder (the “Exchange Act”) or applicable Laws to obtain such approvalsthe SEC (or its staff).

Stockholders Meeting. The Company shall, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable Law, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company to duly call, give notice of, convene and hold shall call a meeting of its stockholders to be held as promptly as practicable following the date of this Agreement, but in no event later than ninety (90) days following the Closing Date, to vote on the following proposals (the “Stockholders’ MeetingStockholder Proposals”): (i) to approve an increase in the number of shares of Common Stock that the Company is authorized to issue from one hundred ten million (110,000,000) shares to two hundred fifty million (250,000,000) shares; and (ii) to approve (1) the issuance of Common Stock and Pre-Funded Warrants, as applicable, upon the conversion of the Mandatorily Convertible Preferred Stock, (2) the issuance of the Coverage Warrants upon the conversion of the Mandatorily Convertible Preferred Stock and (3) the issuance of Common Stock upon the exercise of the Pre-Funded Warrants and the Coverage Warrants, in each case for purposes of Rule 5635 of the purpose Nasdaq Stock Market Rules (such approval of obtaining the Requisite Stockholder Proposals, “Stockholder Approval”). Subject to the ability The Board of the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors Directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company, after consultation with Parent, may adjourn or postpone the Stockholders’ Meeting (i) as necessary to ensure that any required supplement or amendment to the Proxy Statement is provided recommend to the Company’s stockholders within a reasonable amount of time that such stockholders vote in advance favor of the Stockholders’ Meeting, (ii) if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Stockholder Proposal. The Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Stockholders’ Meeting, (iii) if required by applicable Law or (iv) if in the good faith judgment of the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will shall use its reasonable best efforts to obtain such Stockholder Approval. In connection with such meeting, the Company shall promptly prepare and file (but in no event more than twenty (20) days after the Closing Date) with the Commission a preliminary proxy statement, shall use its reasonable best efforts to respond to any comments of the Commission or its staff with respect to the preliminary proxy statement and to cause a definitive proxy statement related to such stockholders’ meeting to be mailed to the Company’s stockholders, and shall solicit proxies from holders of Company Common Stock its shareholders in connection therewith in the same manner as all other management proposals in such proxy statement and all management-appointed proxyholders shall vote their proxies in favor of such proposal. The Company shall provide the adoption of this Agreement Purchaser with a reasonable opportunity to review and provide comments on the preliminary proxy statement and the approval definitive proxy statement. The Company shall notify Purchaser promptly of the transactions contemplated hereby, including receipt of any comments from the Merger, Commission or its staff with respect to the proxy statement and to take all other action necessary or advisable to secure the vote or consent of holders of Company Common stock required any request by the rules Commission or its staff for amendments or supplements to such proxy statement or for additional information (but the Company shall not provide any Purchaser with any material, non-public information, unless requested by such Purchaser and pursuant to a written agreement regarding the confidentiality and use of The Nasdaq Capital Market such information). If at any time prior to such stockholders’ meeting there shall occur any event that is required to be set forth in an amendment or applicable Laws supplement to obtain the proxy statement, the Company shall as promptly as practicable prepare and mail to its stockholders such approvalsan amendment or supplement. In the event that Stockholder Approval is not obtained at such stockholder meeting, the Company shall include a proposal to approve (and the Board of Directors shall recommend approval of) such proposal at a meeting of its stockholders to be held no less than once in each subsequent four-month period beginning on the date of such stockholder meeting until such approval is obtained.

Stockholders Meeting. (a) The Company shallwill take, as promptly as reasonably practicable following the date on which the SEC (or the staff of the SEC) confirms that it has no further comments on the Proxy Statement, take all action necessary in accordance with applicable LawLaw and its certificate of incorporation and by-laws, the rules of The Nasdaq Capital Market and the Restated Certificate of Incorporation, as amended, and the Bylaws, as amended, of the Company all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders holders of Shares (the “Stockholders’ Stockholders Meeting”) as promptly as reasonably practicable after the execution of this Agreement for the purpose of obtaining seeking the Requisite Stockholder Approval. Subject to the ability Company Vote, regardless of whether the board of directors of the Company to make an Adverse Recommendation Change in accordance with Section 6.6(c), the board of directors of the Company shall make the Company Recommendation with respect to the adoption of this Agreement and the approval of the transactions contemplated hereby, including the Merger, and shall include such recommendation in the Proxy Statement. Parent shall vote (or cause to be voted) all shares of Company Common Stock beneficially owned by Parent or Merger Sub, if any, in favor of the adoption of this Agreement and the approval of the Merger any duly authorized committee thereof determines at the Stockholders’ Meeting and the approval of the Recapitalization if the same is submitted to the holders of Company Common Stock for approval at the Stockholders’ Meeting. Notwithstanding anything to the contrary contained in any time that this Agreement, the Merger or the other transactions contemplated by this Agreement are no longer advisable, recommends that the stockholders of the Company reject this Agreement, the Merger or the other transactions contemplated by this Agreement, or any other Change of Recommendation has occurred. The Company shall not postpone or adjourn the Stockholders Meeting except to the extent (1) Parent has consented to such postponement or adjournment in writing, or (2) the Company, acting in good faith after consultation consulting with Parentits outside legal counsel, may adjourn or postpone the Stockholders’ Meeting determines that (i) as such postponement or adjournment is necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company’s stockholders of the Company within a reasonable amount of time in advance of the Stockholders’ Stockholders Meeting, (ii) if as of (A) it will not receive proxies sufficient to obtain the time for which the Stockholders’ Meeting Requisite Company Vote, whether or not a quorum is originally scheduled present, or (as set forth in the Proxy StatementB) there are insufficient shares of Company Common Stock it will not have sufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business at of the Stockholders’ Stockholders Meeting, or (iii) if such postponement or adjournment is required by to comply with applicable Law or (iv) if Law; provided, that in the good faith judgment case of any postponement or adjournment under clause (ii) above, the date of the Stockholders Meeting shall not be postponed or adjourned by more than an aggregate of fifteen (15) calendar days other than with Parent’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed). Subject to Section 6.2 hereof, the board of directors of the Company (after consultation with legal counsel), an adjournment or postponement of the Stockholders’ Meeting would be consistent with the fiduciary duties of the members of the board of directors of the Company under applicable Law. Subject to the provisions of this Agreement, the Company will use reasonable best efforts to solicit from holders of Company Common Stock proxies in favor of and any duly authorized committee thereof shall recommend the adoption of this Agreement at the Stockholders Meeting and, unless there has been a Change of Recommendation permitted by and in accordance with Section 6.2(d), shall include the approval of Company Recommendation in the transactions contemplated hereby, including the Merger, Proxy Statement and to shall take all other lawful action necessary or advisable to secure the vote or consent solicit such adoption of holders of Company Common stock required by the rules of The Nasdaq Capital Market or applicable Laws to obtain such approvalsthis Agreement.