Common use of Stockholders Meeting Clause in Contracts

Stockholders Meeting. Whether or not the Board of Directors of the Company shall take any action permitted by the third sentence of this Section 6.5, the Company shall cause a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on the adoption of this Agreement. The Board of Directors of the Company shall (i) include in the Proxy Statement/Prospectus the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Vote, the Board of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCL.

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

Stockholders Meeting. Whether or not the Board of Directors of (a) The Company, acting through the Company shall take any action permitted by the third sentence Board, shall, in accordance with applicable Law and its Articles of this Section 6.5Incorporation and Bylaws, the Company shall cause duly call, give notice of, convene and hold a special meeting of its stockholders (the "“Company Stockholders Meeting"”) to be duly called and held as soon as reasonably practicable after following the date clearance by the SEC of this Agreement the Proxy Statement for the purpose of considering and voting on upon the approval and adoption of this Agreement, the Merger and such other matters as may be necessary to effectuate the Transactions. The Company Board of Directors shall (i) recommend to the stockholders of the Company shall the approval and adoption of this Agreement and the Merger, (iii) include in the Proxy Statement/Prospectus Statement such favorable recommendation of the recommendation described in Section 4.4 (the "Company Board Recommendation") and that the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as stockholders of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the approval and adoption of this Agreement by its stockholders. The Board of Directors Agreement, (iii) take all lawful actions to solicit such approval from the stockholders of the Company and (iv) not withdraw or modify such favorable recommendation, except in the event and to the extent the Company Board makes an Adverse Recommendation in accordance with Section 5.10(b). For purposes of this Agreement, a “Adverse Recommendation” shall not withdrawbe deemed to have occurred if: (i) the Company Board or any committee thereof withdraws, amendmodifies or changes its recommendation of this Agreement, modify the Merger or qualify the Transactions in a manner adverse to Parent the Company Board Recommendation (or announce publicly its shall have resolved or announced an intention to do so), except that prior to the receipt of the Company Requisite Vote, the Board of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent ; (ii) the Company Board Recommendation (shall have recommended to the Company’s stockholders a competing Transaction or publicly announce its intention shall have resolved to do so)so or shall have entered into any letter of intent, upon three business days' prior notice to Parentmemorandum of understanding, but only if agreement in principle, merger agreement acquisition agreement, option agreement, joint venture agreement, alliance agreement, partnership agreement or similar document or any agreement, contract or commitment accepting any competing Transaction; (i)(Aiii) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after failed to include in the date Proxy Statement the recommendation of the Company Board in favor of the approval and adoption of this Agreement by any person other than Parent and the approval of the Merger or its affiliates and such proposal is pending at the time of such action and (Civ) the Board of Directors of Company fails to call the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCLStockholders Meeting.

Stockholders Meeting. Whether or not Unless the Board of Directors (or a duly authorized committee thereof) has made a Change of Recommendation, the Company Company, acting through its Board of Directors (or a duly authorized committee thereof), shall take any action permitted promptly (but no later than ten (10) Business Days after the later of (a) confirmation by the third SEC that the SEC has no further comments on the Proxy Statement or that it will not review the Proxy Statement and (b) the No-Shop Period Start Date, subject to the last sentence of this Section 6.56.3) take all reasonable action required under the DGCL, the Company shall cause Certificate of Incorporation, the Bylaws and the applicable requirements of the NYSE necessary to duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on the adoption of adopting this Agreement (including any adjournment or postponement thereof permitted by this Agreement. The , the “Stockholders Meeting”); provided that the Company may postpone, recess or adjourn such meeting for up to thirty (30) days (i) to the extent required by Law, (ii) if the Company has notified Parent pursuant to Section 6.1(e) that the Board of Directors (or a duly authorized committee thereof) intends to effect a Change of Recommendation or to terminate this Agreement pursuant to Section 8.1(d)(ii), (iii) to allow reasonable additional time to solicit additional proxies to the extent the Company reasonably believes necessary in order to obtain the Company Requisite Vote, (iv) if as of the Company time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the business of the Stockholders Meeting or (v) to allow reasonable additional time for the filing and dissemination of any supplemental or amended disclosure which the Board of Directors (or a duly authorized committee thereof) has determined in good faith after consultation with outside counsel is necessary under applicable Law or fiduciary duty for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Stockholders Meeting. The Company, acting through its Board of Directors (or a duly authorized committee thereof), shall except as permitted by Section 6.1(e), (ia) include in the Proxy Statement/Prospectus Statement the recommendation described in Section 4.4 (Recommendation and, subject to the "Company Board Recommendation") and consent of the Financial Advisor, the written opinion of Xxxxxxx, Xxxxx & Co.the Financial Advisor, dated the date of this Agreement, to the effect that, as of the date hereof, as to the fairness of the Per Share Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock view and (iib) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Vote, the Board of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), ; provided that the Board of Directors is (or a duly authorized committee thereof) may make a Change of Recommendation in accordance with Section 6.1(e) and, following such Change of Recommendation, may fail to (i) include in the Proxy Statement the Recommendation or (ii) use such reasonable best efforts. The Company shall, upon reasonable request by Parent, keep Parent informed with respect to proxy solicitation results. Notwithstanding anything to the contrary contained in this Agreement, the Company shall not be required to withdraw, amend or modify hold the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCLStockholders Meeting if this Agreement is terminated.

Stockholders Meeting. Whether or The Company shall, in accordance with applicable law and its Amended and Restated Certificate of Incorporation and By-laws duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, the "Company Special Meeting") of its stockholders for the purpose of approving and adopting the agreement of merger (as such term is used in Section 251 of the DGCL) set forth in this Agreement, approving the Merger and approving the Charter Amendment, in each case by the holders of a majority of the outstanding shares of Company Common Stock (with the holders of Company Class A Common Stock and the holders of Company Class B Common Stock voting together as a single class) and the affirmative vote of the holders of a majority of the outstanding shares of each of the Company Class A Common Stock and Company Class B Common Stock voting as separate classes (the "Company Stockholder Approval"). The Company agrees to use its reasonable efforts to cause the Company Special Meeting to occur within seventy-five (75) days after the date on which the Registration Statement becomes effective, but not earlier than twenty (20) business days after the date the Proxy Statement is first mailed to stockholders. The Company shall include in the Proxy Statement the recommendation of its Board of Directors ("Company Board Recommendation") that its stockholders vote in favor of the Company Stockholder Approval, subject to the duties of the Board of Directors of the Company shall take to make any action permitted by further disclosure to the third sentence of this Section 6.5, the Company shall cause a meeting of its stockholders (which shall not, unless expressly stated, constitute a withdrawal or adverse modification of such recommendation) and subject to the "Stockholders Meeting") right to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on the adoption withdraw, modify or change such recommendation in accordance with Section 5.10 of this Agreement. The Board of Directors of the Company shall (i) include in the Proxy Statement/Prospectus the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Vote, If the Board of Directors of the Company shall be permitted to withdrawwithdraws, amend, modify modifies or materially qualify changes its recommendation of this Agreement or the Merger in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention resolves to do so)any of the foregoing, upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates nevertheless remain obligated to call, give notice of, convene and such proposal is pending at the time of such action and (C) the Board of Directors of hold the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCLSpecial Meeting.

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

Stockholders Meeting. Whether or not The Company shall, as soon as practicable following the Board of Directors of the Company shall take any action permitted by the third sentence date of this Section 6.5Agreement, the Company shall cause duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on considering, as six separate proposals: (a) the adoption of this Agreement. The ; (b) the approval of an amendment to the Company's Restated Certificate of Incorporation implementing a classified Board of Directors of the Company shall (i) include in the Proxy Statement/Prospectus the recommendation described in Section 4.4 (the "Company Classified Board RecommendationProposal"); (c) the approval of an amendment to the Company's Restated Certificate of Incorporation placing limits on the size of the Company's board and requiring, subject to certain limitations, that board vacancies and newly created directorships be filled only by remaining board members (the "Board Size Proposal"); (d) the approval of an amendment to the Company's Restated Certificate of Incorporation eliminating the ability of stockholders to act by written consent (the "Written Consent Proposal"); (e) the approval of an amendment to the Company's Restated Certificate of Incorporation eliminating the ability of stockholders to call a special meeting (the "Special Meeting Proposal"); and (f) the approval of an amendment to the Company's Restated Certificate of Incorporation requiring a supermajority vote to amend the Surviving Corporation By-Laws by stockholder action or to amend the Surviving Corporation Certificate of Incorporation (the "Supermajority Voting Proposal") and in a manner that would affect matters covered by the written opinion of XxxxxxxClassified Board Proposal, Xxxxx & Co.the Board Size Proposal, dated the date of this AgreementWritten Consent Proposal, the Special Meeting Proposal or the Supermajority Voting Proposal if adopted, all as set forth in Exhibit A-1(a) hereto (collectively, the "Governance Amendments"), to the effect that, as become effective solely upon effectiveness of the date hereofMerger. The Company shall, the Merger Consideration is fairthrough its Board of Directors, from a financial point of view, recommend to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the stockholders adoption of this Agreement by its stockholders. The Board of Directors and the approval of the Company Governance Amendments and shall not withdraw, amendchange or modify such recommendation; provided, modify or qualify in a manner adverse to Parent however, that the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Vote, the Company's Board of Directors of the Company shall be permitted to may withdraw, amend, change or modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only such recommendation if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded it determines in good faith, on the basis of the advice of its after consultation with outside financial advisors (confirmed in writing to the Board of Directors)counsel, that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in it would be inconsistent with the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its Board's fiduciary duties to the stockholders of the Company under the DGCLnot to withdraw, change or modify such recommendation.

Stockholders Meeting. Whether or not the Board of Directors Each of the Company and Parent shall, in accordance with applicable law and their respective Certificate or Articles of Incorporation and the By-Laws duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, shall take any action permitted by be referred to as the third sentence of this Section 6.5"Parent Special Meeting" or the "Company Special Meeting," as the case may be, and, together as the Company shall cause a meeting "Special Meetings") of its respective stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on of, in the adoption of this Agreement. The Board of Directors case of the Company shall Company, approving and adopting the agreement of merger (ias such term is used in Section 251 of the DGCL) include set forth in this Agreement and approving the Merger, and in the Proxy Statement/Prospectus case of Parent, approving the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion issuance of Xxxxxxx, Xxxxx & Co., dated the date shares of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Parent Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Vote, the Board of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under in the DGCLMerger, by the holders of, in the case of the Company, a majority of the outstanding shares of Company Common Stock and, in the case of Parent, a majority of the outstanding shares of Parent Common Stock actually present and voting (the "Company Stockholder Approval" and the "Parent Stockholder Approval," as the case may be). Parent and the Company agree to use their reasonable efforts to cause the Special Meetings to occur within forty-five (45) days after the date on which the Registration Statement becomes effective. Each of Parent and the Company shall include in the Joint Proxy Statement the recommendation of their Boards of Directors that stockholders vote in favor of the Company Stockholder Approval or the Parent Stockholder Approval, as the case may be; in each case subject to the duties of the respective Boards of Directors to make any further disclosure to the stockholders (which shall not, unless expressly stated, constitute a withdrawal or adverse modification of such recommendation) and, in the case of the Company, subject to the right to change such recommendation or terminate this Agreement following receipt of a Superior Proposal as defined in Section 5.10.

Stockholders Meeting. Whether or not the Board of Directors of the The Company shall take any action permitted by the third sentence of this Section 6.5, the Company shall cause will call a meeting of its stockholders (the "Stockholders Stockholders' Meeting") to be duly called and held as soon promptly as practicable after the date of this Agreement for the purpose of voting on upon the adoption of this AgreementMerger Agreement and shall submit the Merger Agreement to its stockholders for a vote at such Stockholders' Meeting. The Board of Directors of the Company shall not, without the prior written consent of Parent (i) include in the Proxy Statement/Prospectus the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company which consent shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do sobe unreasonably withheld), except that postpone or adjourn the Stockholders' Meeting unless this Merger Agreement shall be terminated prior to the receipt date thereof. The Company, through its Board of Directors, subject to the Company Requisite Vote, fiduciary duties of the Board of Directors of the Company shall be permitted to withdrawor the Special Committee after consultation with counsel, amend, modify or materially qualify in a manner adverse to Parent will recommend approval of the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect Merger Agreement to the Company shall have been made after Company's stockholders; provided, however, that at any time at or prior to -------- ------- the date of this Agreement by any person other than Parent Stockholders' Meeting either the Special Committee or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that both the Board of Directors is required to withdrawand the Special Committee) may revoke, amend modify or modify the Company Board Recommendation in order to prevent it from breaching qualify its fiduciary duties recommendation with respect to the stockholders Merger Agreement if the Board of Directors of the Company under or the DGCLSpecial Committee determines in good faith (after consultation with legal counsel) that failure to revoke, modify or qualify such recommendation would create a material risk of liability for breach of its fiduciary duties. At the Stockholders' Meeting (and at any adjournment or postponement thereof), Parent will vote or cause to be voted in favor of approval and adoption of the Merger Agreement and approval of the Merger all of the outstanding shares of Class B Common Stock; provided, -------- however, that if such recommendation of the Special Committee is revoked, ------- modified or qualified in a manner adverse to Parent, Parent may, but shall not be obligated to, cause such shares to be so voted.

Stockholders Meeting. Whether or not (a) As soon as practicable following the Board of Directors acquisition by Merger Sub of the Minimum Shares pursuant to the Offer, the Company, acting through the Company shall take any action permitted by Board, shall, in accordance with applicable law, its Certificate of Incorporation and Bylaws and subject to the third sentence other provisions of this Section 6.57.1(a), to the Company shall cause a meeting of its stockholders (extent necessary to consummate the "Stockholders Meeting") to be Merger, promptly and duly called call, give notice of, convene and held hold as soon as practicable after a meeting of the date holders of this Agreement Common Stock (the "Company Stockholder Meeting") for the purpose of voting on to approve and adopt this Agreement and the adoption of this Agreement. The Board of Directors of the Company shall transactions contemplated hereby and (i) include recommend that the holders of the Common Stock accept the Offer and tender all of their shares of Common Stock to Purchaser and approve this Agreement and the transactions contemplated hereby, including the Merger, which recommendation shall be included in the Proxy Statement/Prospectus the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co.if any, dated the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its take all reasonable best efforts and lawful action to solicit and obtain the necessary vote in favor of the adoption of this Agreement by its stockholderssuch approval. The Company Board of Directors of the Company shall not withdraw, amend, amend or modify or qualify in a manner adverse to Parent its recommendation referred to in clause (i) of the Company Board Recommendation preceding sentence (or announce publicly its intention to do so)) provided that the disclosure of (x) the receipt of an Alternative Transaction or (y) the fact that the Company Board is considering such Alternative Transaction or reviewing it with its advisers (to the extent the Company Board shall have determined in good faith that any such disclosure is required by law or any applicable securities exchange requirement) shall not by itself constitute such a withdrawal, except that modification or amendment. Notwithstanding the foregoing, prior to the receipt acceptance for payment of the Company Requisite VoteMinimum Shares pursuant to the Offer, the Company Board of Directors of the Company shall be permitted to (A) withdraw, amend, amend or modify or materially qualify in a manner adverse to Parent the Company Board Recommendation its recommendation (or publicly announce its intention to do so)) of this Agreement and the transactions contemplated hereby, upon three business days' prior notice including the Offer and the Merger, in a manner adverse to Parent, but only if Parent or (i)(AB) approve or recommend or enter into an agreement with respect to a Superior Transaction if: (i) the Company has complied with Section 6.3, 7.3; (Bii) an unsolicited bona fide written a Superior Transaction Proposal with respect to the Company shall have been made after the date of this Agreement proposed by any person Person other than Parent or its affiliates and such proposal is pending at the time of such action and action; (Ciii) the Company Board of Directors of the Company shall have concluded determined in good faith, based on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors)counsel, that the Board of Directors is required failure to withdraw, amend or modify its recommendation or to approve or recommend or enter into such Superior Transaction would constitute a breach of the Company Board's fiduciary duties under applicable law; and (iv) the Company shall have notified Parent of such Superior Transaction proposal at least three Business Days in advance of such action. No action by the Company Board Recommendation permitted by the preceding sentence (each, a "Permitted Action") shall constitute a breach of this Agreement by the Company. (b) Notwithstanding the preceding paragraph or any other provision of this Agreement, in order the event Merger Sub owns 90% or more of the outstanding shares of each class of the capital stock of the Company following expiration of the Offer, the Company shall not be required to prevent it from breaching its fiduciary duties call the Company Stockholder 27 29 Meeting or to file or mail the Proxy Statement, and the parties hereto shall, at the request of Parent and subject to Article VIII, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable following such expiration without a meeting of stockholders of the Company in accordance with Section 253 of the DGCL. (c) If required by applicable law, as soon as practicable following Parent's request, the Company shall file with the SEC under the DGCLExchange Act and the rules and regulations promulgated thereunder, and shall use its reasonable best efforts to have cleared by the SEC, the Proxy Statement with respect to the Company Stockholder Meeting. Parent, Purchaser and the Company will cooperate with each other in the preparation of the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and Purchaser will furnish to the Company the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement. The Company agrees to use its reasonable best efforts, after consultation with the other parties hereto, to respond promptly to any comments made by the SEC with respect to the Proxy Statement and any preliminary version thereof filed by it and cause such Proxy Statement to be mailed to the Company's stockholders at the earliest practicable time. SECTION 7.2.

Stockholders Meeting. Whether or not The Company shall, as soon as practicable following the Board of Directors of the Company shall take any action permitted by the third sentence date of this Section 6.5Agreement, the Company shall cause duly call, give notice of, convene and hold, a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on considering, as four separate proposals, (i) the adoption of this Agreement. The ; (ii) the approval of an amendment to the Certificate of Incorporation of the Company establishing a range for the number of directors on the Surviving Corporation's Board of Directors from six to nine, the actual number to be determined exclusively by resolution of the Surviving Corporation's Board of Directors, a provision that prohibits the alteration or repeal of this provision without the vote of at least 66- 2/3% of the total voting power of the outstanding shares of the Surviving Corporation's voting stock, voting together as a single class, and related provisions in Article Twelfth of the Certificate of Incorporation as set forth in Exhibit A-1 hereto to become effective in the Merger at the Effective Time (the "Board Size Amendment"); (iii) the approval of an amendment to the Certificate of Incorporation of the Company shall (i) include providing for a requirement that the approval of 66- 2/3% of the total voting power of the outstanding shares of the Surviving Corporation's common stock is necessary to approve any merger or consolidation, any sale, lease, exchange or other disposition of all or substantially all of the Surviving Corporation's assets and, unless approved by two-thirds of the Surviving Corporation's Board of Directors, any issuance of voting securities of the Surviving Corporation that would require stockholder approval and related provisions in Article Thirteenth of the Certificate of Incorporation as set forth in Exhibit A-1 hereto to become effective in the Proxy Statement/Prospectus Merger at the recommendation described in Section 4.4 Effective Time (the "Company Board RecommendationSupermajority Voting Amendment") and (iv) the written opinion approval of Xxxxxxxan amendment to the Certificate of Incorporation of the Company providing for an increase in authorized capital and the creation of a new Class C Common Stock having one-tenth ( 1/10) of one vote per share and related provisions in Article Fourth of the Certificate of Incorporation as set forth in Exhibit A-1 hereto to become effective in the Merger at the Effective Time (the "Authorized Capital Amendment"). The Company hereby represents and warrants to Harcourt General that a committee of independent directors of the Company's Board of Directors has approved the Merger, Xxxxx & Co., dated the date of this Agreement, the Board Size Amendment, the Supermajority Voting Amendment and the Authorized Capital Amendment, has determined that the Merger, this Agreement, the transactions contemplated by the Distribution Agreement, the Board Size Amendment, the Supermajority Voting Amendment and the Authorized Capital Amendment are advisable and favorable to and, therefore, fair to and in the effect that, as best interests of the date hereofstockholders of the Company other than Harcourt General, and has recommended that the Merger Consideration is fair, from a financial point stockholders of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite VoteAgreement, the Board Size Amendment, the Supermajority Voting Amendment and the Authorized Capital Amendment. The Company shall, through a committee of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice independent directors of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3)continue to recommend to its stockholders adoption of this Agreement, or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors)Size Amendment, that the Board of Directors is required to withdraw, amend or modify Supermajority Voting Amendment and the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCLAuthorized Capital Amendment and shall not withdraw such recommendation.

Stockholders Meeting. Whether or not the Board The Company shall, in accordance with applicable Law and its certificate of Directors incorporation and by-laws, convene a special meeting of the Company shall take any action permitted by the third sentence of this Section 6.5, the Company shall cause a meeting of its stockholders Stockholders (the "“Stockholders Meeting"”) to be duly called and held as soon promptly as practicable after the date of this Agreement for the purpose of voting on the adoption of this Agreement. The Board of Directors mailing of the Company shall Proxy Statement (iand in any event, subject to the provisos to this sentence, no more than thirty (30) include in the Proxy Statement/Prospectus the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co., dated the days after such date of this Agreement, mailing) to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock consider and (ii) use its reasonable best efforts to obtain the necessary vote in favor of upon the adoption of this Agreement and, subject to Section 5.4, shall use its reasonable best efforts, consistent with customary practice, to solicit the Stockholder Approval (it being understood that the Parent shall also be entitled to take any reasonable lawful action to solicit the Stockholder Approval); provided, that such solicitation activities may include cooperating with the Parent in making presentations to proxy advisory firms or other similar Persons making a recommendation with respect to the transactions contemplated hereby; provided, further, that the Company may postpone, delay or adjourn the Stockholders Meeting (i) with the consent of the Parent (not to be unreasonably withheld, conditioned or delayed), (ii) for the absence of a quorum, (iii) to allow reasonable additional time for the preparation and filing of any supplemental or amended disclosure that is prepared and filed in accordance with Section 5.2(a) and for such supplemental or amended disclosure to be disseminated and reviewed by its stockholders. The the Stockholders prior to the Stockholders Meeting, or (iv) if in the good faith judgment of the Board of Directors (after consultation with its outside legal counsel), failure to adjourn, delay or postpone the Stockholders Meeting would reasonably be expected to be inconsistent with the fiduciary duties of the Board of Directors under applicable Law; provided, further, that the Parent may require the Company to postpone or adjourn the Stockholders Meeting one time (but in no event to a date that is less than two (2) Business Days prior to the End Date), unless prior to any such postponement or adjournment the Company shall have received an aggregate number of proxies voting for the adoption of this Agreement (and which have not been withdrawn) sufficient such that, if the shares of Common Stock subject to such proxies are not otherwise voted at the Stockholders Meeting so as to withdraw such proxies, the condition set forth in Section 6.1(a) will be satisfied at the Stockholders Meeting. Without the prior written consent of the Parent, the adoption of this Agreement and matters related to the transactions contemplated hereby (including the Merger) shall be the only matters which the Company shall propose to be acted on by the Stockholders at the Stockholders Meeting. The Company shall establish a record date for purposes of determining Stockholders entitled to notice of and vote at the Stockholders Meeting (the “Record Date”) on or prior to the date on which the Proxy Statement is mailed to the Stockholders pursuant to Section 5.2. Once established, the Company shall not withdrawchange the Record Date or establish a different record date for the Stockholders Meeting without the prior written consent of the Parent (not to be unreasonably withheld, amend, modify conditioned or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do sodelayed), except that prior to the receipt of the Company Requisite Vote, unless the Board of Directors determines in good faith (after consultation with its outside legal counsel) that it is required to do so by applicable Law or pursuant to the Company’s certificate of incorporation or by-laws. In the event that the date of the Company shall be permitted to withdrawStockholders Meeting as originally called is for any reason postponed or adjourned or otherwise delayed, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (agrees that, unless the Parent shall have otherwise approved in writing, it shall implement such postponement or publicly announce its intention to do so)adjournment or other delay in such a way that the Company does not establish a new record date for the Stockholders Meeting, as so postponed, adjourned or delayed, except as required by applicable Law or the Company’s certificate of incorporation or by-laws. The Company shall, upon three business days' prior notice to the reasonable request of the Parent, but only if advise the Parent periodically (i)(Aand at least on a daily basis on each of the last seven (7) Business Days prior to the date of the Stockholders Meeting) as to the aggregate tally of the proxies received by the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of Stockholder Approval. Unless this Agreement by has been terminated pursuant to and in accordance with Article VII, and notwithstanding any person other than Parent or its affiliates and such proposal is pending at the time Change of such action and (C) the Board of Directors of the Company Recommendation, this Agreement shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing be submitted to the Board Stockholders for the purpose of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in obtaining the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCLStockholder Approval.

Stockholders Meeting. Whether or not The Company shall, as soon as practicable following the Board of Directors of the Company shall take any action permitted by the third sentence date of this Section 6.5Agreement, the Company shall cause duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on considering, as five separate proposals: (a) the adoption of this Agreement. The Board ; (b) the approval of Directors an amendment to the Company's Restated Certificate of Incorporation placing limits on the size of the Company shall (i) include in the Proxy Statement/Prospectus the recommendation described in Section 4.4 Company's board and requiring, subject to certain limitations, that board vacancies and newly created directorships be filled only by remaining board members (the "Company Board RecommendationSize Proposal"); (c) the approval of an amendment to the Company's Restated Certificate of Incorporation eliminating the ability of stockholders to act by written consent (the "Written Consent Proposal"); (d) the approval of an amendment to the Company's Restated Certificate of Incorporation eliminating the ability of stockholders to call a special meeting (the "Special Meeting Proposal"); and (e) the approval of an amendment to the Company's Restated Certificate of Incorporation requiring a supermajority vote to amend the Surviving Corporation By-Laws by stockholder action or to amend the Surviving Corporation Certificate of Incorporation (the "Supermajority Voting Proposal") and in a manner that would affect matters covered by the written opinion of XxxxxxxBoard Size Proposal, Xxxxx & Co.the Written Consent Proposal, dated the date of this AgreementSpecial Meeting Proposal or the Supermajority Voting Proposal if adopted, all as set forth in Exhibit A-1(a) hereto (collectively, the "Governance Amendments"), to the effect that, as become effective solely upon effectiveness of the date hereofMerger. The Company shall, the Merger Consideration is fairthrough its Board of Directors, from a financial point of view, recommend to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the stockholders adoption of this Agreement by its stockholders. The Board of Directors and the approval of the Company Governance Amendments and shall not withdraw, amendchange or modify such recommendation; provided, modify or qualify in a manner adverse to Parent however, that the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Vote, the Company's Board of Directors of the Company shall be permitted to may withdraw, amend, change or modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only such recommendation if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded it determines in good faith, on the basis of the advice of its after consultation with outside financial advisors (confirmed in writing to the Board of Directors)counsel, that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in it would be inconsistent with the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its Board's fiduciary duties to the stockholders of the Company under the DGCLnot to withdraw, change or modify such recommendation.

Stockholders Meeting. Whether (a) The Company, acting through its Board of Directors, shall, in accordance with applicable law (i) duly call, give notice of, convene and hold a special meeting (the "Special Meeting") of its stockholders and submit this Agreement to a vote of the Company's stockholders as promptly as practicable following the execution and delivery of this Agreement; (ii) as promptly as practicable following the execution and delivery of this Agreement, subject to review of the subject proxy materials by the Securities and Exchange Commission ("SEC") and notification (either orally or in writing) to the Company that the SEC has no further comments relating to such proxy materials, distribute a letter to stockholders, notice of meeting, proxy statement and form of proxy to stockholders of the Company in connection with the Merger (collectively, including any amendments or supplements thereto, the "Proxy Statement"), and include in the Proxy Statement, (A) the recommendation of the Board of Directors that stockholders of the Company vote in favor of the approval of the Merger Agreement and (B) the written opinions of Xxxxxxxx Wertheim & Co. Incorporated ("Xxxxxxxx Xxxxxxxx") and Xxxxx Xxxxxx Inc. ("Xxxxx Xxxxxx") that the Merger Consideration is fair to the stockholders of the Company from a financial point of view; (iii) as promptly as practicable following the execution and delivery of this Agreement, file with the SEC a preliminary form of the Proxy Statement to be sent to the stockholders of the Company relating to the solicitation of stockholder votes at the Special Meeting, which Proxy Statement shall include all information concerning the Company, Parent and Acquisition required to be set forth therein pursuant to the Securities Exchange Act of 1934, as amended (the "1934 Act") and the applicable rules and regulations thereunder (the "1934 Act Rules" and, together with the 1934 Act, the "Exchange Act") in connection with the transactions contemplated by this Agreement; (iv) file a definitive form of the Proxy Statement which shall reflect compliance with comments and requests in accordance with the Exchange Act from the SEC as the Company and Parent shall deem appropriate; (v) distribute such definitive Proxy Statement to its stockholders in accordance with applicable law; and (vi) take all such other action reasonably necessary or appropriate to obtain the lawful approval of this Agreement by the stockholders of the Company. Notwithstanding the foregoing, the Special Meeting need not be called or held and, prior to the Special Meeting, the recommendation of the Board of Directors of the Company shall take any action permitted by the third sentence of this Section 6.5may be withdrawn, the Company shall cause a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on the adoption of this Agreement. The Board of Directors of the Company shall (i) include in the Proxy Statement/Prospectus the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, modified or amended to the effect extent that, as a result of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify commencement or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Votean Acquisition Proposal (as hereinafter defined in Section 5.2(a)) which constitutes a Superior Proposal (as hereinafter defined in Section 5.2(d)), the Board of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded determines in good faith, on the basis after receipt of the advice of its outside financial advisors (confirmed in writing from independent legal counsel to the Board of Directors)Company, that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely failure to so act would result in a Parent Material Adverse Effect, and, on the basis breach of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCLapplicable law.

Stockholders Meeting. Whether or not the Board of Directors Each of the Company and Parent shall, in accordance with applicable law and their respective Certificate or Articles of Incorporation and the By-Laws duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, shall take any action permitted by be referred to as the third sentence of this Section 6.5"PARENT SPECIAL MEETING" or the "COMPANY SPECIAL MEETING," as the case may be, and, together as the Company shall cause a meeting "SPECIAL MEETINGS") of its respective stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on of, in the adoption of this Agreement. The Board of Directors case of the Company shall Company, approving and adopting the agreement of merger (ias such term is used in Section 251 of the DGCL) include set forth in this Agreement and approving the Merger, and in the Proxy Statement/Prospectus case of Parent, approving the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion issuance of Xxxxxxx, Xxxxx & Co., dated the date shares of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Parent Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Vote, the Board of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under in the DGCLMerger, by the holders of, in the case of the Company, a majority of the outstanding shares of Company Common Stock and, in the case of Parent, a majority of the outstanding shares of Parent Common Stock actually present and voting (the "COMPANY STOCKHOLDER APPROVAL" and the "PARENT STOCKHOLDER APPROVAL," as the case may be). Parent and the Company agree to use their reasonable efforts to cause the Special Meetings to occur within forty-five (45) days after the date on which the Registration Statement becomes effective. Each of Parent and the Company shall include in the Joint Proxy Statement the recommendation of their Boards of Directors that stockholders vote in favor of the Company Stockholder Approval or the Parent Stockholder Approval, as the case may be; in each case subject to the duties of the respective Boards of Directors to make any further disclosure to the stockholders (which shall not, unless expressly stated, constitute a withdrawal or adverse modification of such recommendation) and, in the case of the Company, subject to the right to change such recommendation or terminate this Agreement following receipt of a Superior Proposal as defined in Section 5.10.

Stockholders Meeting. Whether or not The Company, acting through the Board Board, shall, in accordance with applicable Law and the Company’s Certificate of Directors of the Company shall take any action permitted by the third sentence of this Section 6.5Incorporation and By-laws, the Company shall cause (a) duly call, give notice of, convene and hold a special meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon promptly as practicable after the date of this Agreement for the purpose of considering, taking action on, and voting on the adoption issuance of this Agreement. The Board of Directors of the Purchased Securities (the “Stockholders’ Meeting”), (b) the Company shall submit the issuance of the Purchased Securities to a vote of the Company’s stockholders and (c) subject to Section 6.04(d), (i) include in the Proxy Statement/Prospectus Statement the recommendation described in Section 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereofBoard that the stockholders of the Company approve the issuance of the Purchased Securities (such approval by the Company’s stockholders, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock “Stockholder Approval”) and (ii) use its all reasonable best efforts to obtain the necessary vote Stockholder Approval, including, without limitation, postponing or adjourning the Stockholders’ Meeting to obtain a quorum or to solicit additional proxies or calling, giving notice of, convening and holding additional Stockholders’ Meetings. At the Stockholders’ Meeting, no matters shall be noticed or submitted to the stockholders other than the issuance of the Purchased Securities or a proposal to adjourn or postpone the meeting, including for purposes of soliciting additional proxies in favor of the adoption approval of this Agreement by its stockholdersthe issuance of the Purchased Securities. The Board of Directors Company shall call, give notice of, convene and hold the Stockholders’ Meeting and submit the issuance of the Purchased Securities to a vote of the Company’s Stockholders, regardless of the commencement, disclosure, announcement or submission to it of any Acquisition Proposal (whether or not a Superior Proposal), any furnishing of information, discussions or negotiations with respect thereto, or any decision or action by the Board to change, withhold or withdraw its recommendation in respect of the issuance of the Purchased Securities. The Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior submit to the receipt of the Company Requisite Vote, the Board of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice vote of its outside financial advisors stockholders any Acquisition Proposal (confirmed in writing to the Board of Directors), that such Transaction Proposal is whether or not a Superior Proposal (as defined in Section 6.3Proposal), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCL.

Stockholders Meeting. Whether or not Unless the Board of Directors of the Company has made a Change of Recommendation, the Company, acting through its Board of Directors (or a committee thereof), shall take any action permitted promptly following confirmation by the third SEC that the SEC has no further comments on the Proxy Statement (but subject to the last sentence of this Section 6.56.8), take all action required under the NRS, the Company shall cause Articles of Incorporation, the Bylaws and the applicable requirements of the New York Stock Exchange necessary to duly call, give notice of, convene and hold a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of approving and adopting this Agreement (including any adjournment or postponement thereof, the “Stockholders Meeting”), with the record date and meeting date being selected after reasonable consultation with Parent; provided that the Company may postpone, recess, adjourn or cancel such meeting (i) to the extent required by Law, (ii) with the written consent of Parent, (iii) to allow reasonable additional time to solicit additional proxies to obtain the Company Requisite Vote or (iv) if as of the time for which the Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient Shares represented (either in person or by proxy) and voting on to constitute a quorum necessary to conduct the adoption business of this Agreementthe Stockholders Meeting. The Company, acting through its Board of Directors of the Company shall (ior a committee thereof), shall, subject to Section 6.6(b), (a) include in the Proxy Statement/Prospectus Statement the recommendation described Recommendation, (b) reaffirm the Recommendation (which Recommendation shall, for avoidance of doubt, be in respect of this Agreement and the 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 4.4 6.6(b)(iii) or Section 6.6(c), as applicable) within five (5) Business Days after a request therefor by Parent following the "date on which any Acquisition Proposal or material modification thereto is received by the Company Board Recommendation"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, within one (1) Business Day, if possible, before the Stockholder Meeting) (provided that Parent may not make any such request on more than one (1) occasion in respect of each Acquisition Proposal or material modification thereof) and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (iic) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Vote, including by soliciting proxies therefor; provided that the Board of Directors of the Company shall be permitted may fail to include the Recommendation in the Proxy Statement or withdraw, amendmodify, modify qualify or materially qualify in a manner adverse change the recommendation, or formally resolve to Parent the Company Board Recommendation (effect or publicly announce its an intention to do so)effect any of the foregoing solely in accordance with Section 6.6(b)(iii) or Section 6.6(c) and following such Change of Recommendation, upon three business days' may fail to use such reasonable best efforts. Notwithstanding the foregoing, without the prior notice to written consent of Parent, but only if the Stockholder Meeting will not be postponed or adjourned (i)(AA) by more than 10 calendar days at a time without the Company has complied with Section 6.3, prior written consent (which consent shall not be unreasonably withheld or delayed) of Parent; or (B) an unsolicited bona fide written Transaction Proposal with respect to Section 6.8(iii), by more than 30 calendar days after the date on which the Stockholder Meeting was (or was required to be) originally scheduled. In no event will the record date of the Stockholder Meeting be changed without Parent’s prior written consent (which consent shall not be unreasonably withheld or delayed), unless required by applicable Law. Notwithstanding anything to the contrary contained in this Active.22007448.8.doc Agreement, the Company shall have been made after not be required to hold the date of Stockholders Meeting if this Agreement by any person other than Parent or is validly terminated in accordance with its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCLterms.

Stockholders Meeting. Whether or not the Board of Directors of the Company shall take any action permitted by the third sentence of this Section 6.54.5, the Company shall cause a meeting of its stockholders Stockholders (the "Stockholders “Stockholders’ Meeting"”) to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on the adoption of this AgreementAgreement or, subject to approval of Bionik, the Company shall solicit written consents of the applicable stockholders in lieu of a Stockholders’ Meeting. The Board of Directors of the Company shall (i) include in the Proxy Statement/Prospectus the proxy statement or other soliciting document prepared therefor its recommendation described in Section 4.4 favor of adoption of this Agreement (the "Company “Board Recommendation"”) and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote votes in favor of the adoption of this Agreement by its stockholdersStockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent Bionik the Company Board Recommendation (or announce publicly its intention to do so), except that that, prior to the receipt of the Company Requisite Vote, the Board of Directors of the Company shall be permitted to withhold, withdraw, amend, modify or materially qualify in a manner adverse to Parent Bionik the Company Board Recommendation and shall be released from its obligations under clauses (or publicly announce its intention to do so)i) and (ii) above, upon three business days' following two Business Days’ prior notice to ParentBionik, but only if (i)(AA) the Company has complied in all respects with Section 6.34.4 of this Agreement, and (B) an unsolicited bona fide written Transaction Proposal after consulting with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) outside legal counsel, the Board of Directors of the Company shall have concluded determines in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing faith that to include the Board of Directors)Recommendation or not withhold, that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3)withdraw, amend, modify or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to qualify the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching would be inconsistent with its fiduciary duties to the stockholders Stockholders of the Company under the DGCLapplicable law.

Stockholders Meeting. Whether or not the Board of Directors of the Company shall take any action permitted by the third sentence of this Section SECTION 6.5, the Company shall cause a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on the adoption of this Agreement. The Board of Directors of the Company shall (i) include in the Proxy Statement/Prospectus the recommendation described in Section SECTION 4.4 (the "Company Board Recommendation") and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration Exchange Ratio is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite VoteStockholder Approval, the Board of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3SECTION 6.1, (Bb) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3SECTION 6.1), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCL.

Stockholders Meeting. Whether or not the Board of Directors Each of the Company and Parent shall, in accordance with applicable law and their respective Certificate or Articles of Incorporation and By-laws duly call, give notice of, convene and hold a special meeting (which, as may be duly adjourned, shall take any action permitted be referred to as the "Parent Special Meeting" or the "Company Special Meeting," as the case may be, and, together as the "Special Meetings") of its respective stockholders for the 30 35 purpose of, in the case of the Company, approving and adopting the agreement of merger (as such term is used in Section 251 of the DGCL) set forth in this Agreement and approving the Merger by the third sentence holders of this Section 6.5, the Company shall cause a meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon as practicable after the date of this Agreement for the purpose of voting on the adoption of this Agreement. The Board of Directors majority of the outstanding shares of Company shall (i) include in the Proxy Statement/Prospectus the recommendation described in Section 4.4 Common Stock (the "Company Board RecommendationStockholder Approval") and in the written opinion case of XxxxxxxParent, Xxxxx & Co., dated (i) approving the date issuance of this Agreement, shares of Parent Common Stock to the effect that, as stockholders of the date hereof, Company in the Merger Consideration is fair, from a financial point of view, to by the holders of Company a majority of the outstanding shares of Parent Common Stock actually present and voting and (ii) electing the Director Nominees (as defined in Section 5.17) to Parent's Board of Directors by a plurality vote of the holders of Parent Common Stock (collectively, the "Parent Stockholder Approval"). Parent and the Company agree to use its their reasonable best efforts to obtain cause the necessary Special Meetings to occur within sixty (60) days after the date on which the Registration Statement becomes effective but not sooner than twenty (20) business days after the date the Joint Proxy Statement is first mailed to stockholders. Each of Parent and the Company shall include in the Joint Proxy Statement the recommendation of their Boards of Directors that stockholders vote in favor of the adoption Company Stockholder Approval or the Parent Stockholder Approval, as the case may be; in each case subject to the duties of the respective Boards of Directors to make any further disclosure to the stockholders (which shall not, unless expressly stated, constitute a withdrawal or adverse modification of such recommendation) and, subject to the right to change such recommendation or terminate this Agreement following receipt of a Company Superior Proposal or Parent Superior Proposal, as applicable, or subject to the right to change such recommendation in accordance with Section 5.20. Each of Parent and the Company agrees to cooperate and use its respective best efforts to hold the Parent Special Meeting and the Company Special Meeting on the same day. If the Company's Board of Directors withdraws, modifies or changes its recommendation of this Agreement by its stockholders. The Board of Directors of or the Company shall not withdraw, amend, modify or qualify Merger in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention resolves to do so), except that prior to the receipt any of the Company Requisite Voteforegoing, the Board of Directors of the Company shall be permitted remain obligated to withdrawcall, amendgive notice of, modify or materially qualify in a manner adverse to Parent convene and hold the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under the DGCLSpecial Meeting.

Stockholders Meeting. Whether or not (a) The Company, acting through the Board Board, shall, in accordance with applicable Law and the Company’s Certificate of Directors of the Company shall take any action permitted by the third sentence of this Section 6.5Incorporation and By-laws, the Company shall cause (i) duly call, give notice of, convene and hold a special meeting of its stockholders (the "Stockholders Meeting") to be duly called and held as soon promptly as practicable after the date of this Agreement for the purpose of considering, taking action on, and voting on the adoption approval of this Agreement. The Board the Charter Amendment, the issuance of Directors the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company shall (isuch meeting, including any adjournment or postponement thereof, the “Stockholders’ Meeting”), (ii) submit the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company, to a vote of the Company’s stockholders, and (iii) subject to Section 7.01(b), (A) include in the Proxy Statement/Prospectus Statement the recommendation described in Section 4.4 of the Board (the "Company “Board Recommendation"”) and the written opinion of Xxxxxxx, Xxxxx & Co., dated the date of this Agreement, to the effect that, as of the date hereof, the Merger Consideration is fair, from a financial point of view, to the holders of Company Common Stock and (ii) use its reasonable best efforts to obtain the necessary vote in favor of the adoption of this Agreement by its stockholders. The Board of Directors of the Company shall not withdraw, amend, modify or qualify in a manner adverse to Parent the Company Board Recommendation (or announce publicly its intention to do so), except that prior to the receipt of the Company Requisite Vote, the Board of Directors of the Company shall be permitted to withdraw, amend, modify or materially qualify in a manner adverse to Parent the Company Board Recommendation (or publicly announce its intention to do so), upon three business days' prior notice to Parent, but only if (i)(A) the Company has complied with Section 6.3, (B) an unsolicited bona fide written Transaction Proposal with respect to the Company shall have been made after the date of this Agreement by any person other than Parent or its affiliates and such proposal is pending at the time of such action and (C) the Board of Directors of the Company shall have concluded in good faith, on the basis of the advice of its outside financial advisors (confirmed in writing to the Board of Directors), that such Transaction Proposal is a Superior Proposal (as defined in Section 6.3), or (ii) there has been any change in the financial condition, properties, business or results of operations of Parent and its Subsidiaries, or any transaction, commitment, dispute or other event, or any other development or combination of developments that, individually or in the aggregate, has had or is reasonably likely to result in a Parent Material Adverse Effect, and, on the basis of advice of its outside legal counsel (confirmed in writing to the Board of Directors), that the Board of Directors is required to withdraw, amend or modify the Company Board Recommendation in order to prevent it from breaching its fiduciary duties to the stockholders of the Company under approve the DGCLCharter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company (such approval by the Company’s stockholders, the “Stockholder Approval”) and (B) use all reasonable efforts to obtain the Stockholder Approval, including postponing or adjourning the Stockholders’ Meeting to obtain a quorum or to solicit additional proxies or calling, giving notice of, convening and holding additional Stockholders’ Meetings. At the Stockholders’ Meeting, no matters shall be noticed or submitted to the stockholders other than the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company or a proposal to adjourn or postpone the meeting, for purposes of soliciting additional proxies in favor of the approval of the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company. The Company shall call, give notice of, convene and hold the Stockholders’ Meeting and submit the Charter Amendment, the issuance of the Initial Shares, the Rights Offerings and any other matters relating to the Transactions, which require the approval of the stockholders of the Company.