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

Preparation of Proxy Statement; Stockholders Meeting. As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Purchase Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Purchase Agreement.

Preparation of Proxy Statement; Stockholders Meeting. As (a) The parties shall cooperate and promptly as reasonably practicable following the date of this Agreementprepare, but no later than June 25, 2010, and the Company shall file with the SEC as soon as practicable, a proxy statement ("Proxy Statement") with respect to the Stockholders Meeting to be held in connection with the Merger. The parties shall cooperate and promptly prepare and cause the appropriate party shall file with the SEC as soon as practicable any other filings required under the Exchange Act ("Additional Filings"), including a Rule 13e-3 Transaction Statement on Schedule 13E-3 ("Schedule 13E-3") with respect to the Merger to be filed jointly by the Company and Acquiror, together with any required amendments thereto. Each of the Company and Acquiror agrees that the written information provided by it for inclusion in the Proxy Statement and Additional Filings, and each amendment or supplement thereto, at the time of mailing thereof and at the time of the Stockholders Meeting, will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. (b) The Company will use its reasonable best efforts, and Acquiror will cooperate with the Company, to (i) file a preliminary Proxy Statement with the SEC and respond to the comments of the SEC thereon, and (ii) cause a preliminary proxy statement definitive Proxy Statement to be sent mailed to holders of Common Shares, in each case, as promptly as practicable (including clearing the stockholders of Proxy Statement with the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”SEC). The Company shall use its reasonable best efforts to finalize the Proxy Statement as will notify Acquiror promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or and of any request from by the SEC for amendments or supplements to the Proxy Statement or the Additional Filings or for additional information and shall provide Phoenix will supply Acquiror with copies of all correspondence between it such party or any of its representatives and its representativesthe SEC with respect to the Proxy Statement or the Additional Filings. The parties shall cooperate to cause the Proxy Statement and any Additional Filings to comply in all material respects with all applicable requirements of law. Whenever any event occurs which is required to be set forth in an amendment or supplement to the Proxy Statement or the Additional Filings, the Company, on the one hand, and the SECAcquiror, on the other hand. Phoenix , shall have promptly inform the opportunity to review other of such occurrence and approve cooperate in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. SEC and/or mailing to holders of Common Shares, such amendment or supplement to the Proxy Statement. (c) The Company shallwill, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statementthis Agreement, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders, such meeting to be held no sooner than 20 days nor later than 45 days following the date the Proxy Statement is mailed to the holders of Common Shares (the "Stockholders Meeting Meeting"), for the purpose of seeking Company stockholder approval and to solicit such approval from obtaining Stockholder Approval (as defined below). (d) If on the stockholders. In connection with date for the Stockholders MeetingMeeting established pursuant to subsection (c) above, the Company shallhas not received duly executed proxies which, when added to the number of votes represented in person at the Stockholders Meeting by persons who intend to vote to approve the Merger, will constitute a sufficient number of votes to constitute Stockholder Approval (but holders of less than a majority of the outstanding Common Shares have indicated their intention to vote against, or have submitted duly executed proxies voting against, approval of the Merger), then the Company, through the Board, shall recommend one or more adjournment(s) of the Stockholders Meeting for up to its stockholders that they approve (a) an increase in (i) its authorized shares 120 days after the record date as approved by a majority vote of holders of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals Shares present in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated person or by this Agreement and the other Transaction Documents, including the Exchange Agreementproxy.

Preparation of Proxy Statement; Stockholders Meeting. As promptly as reasonably practicable following (a) If the date adoption of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to Agreement by the Company’s stockholders meeting (together with any amendments or supplements theretois required by Law, the “Company shall, as soon as practicable following the expiration of the Offer (provided that the Minimum Tender Condition has been satisfied), prepare and file with the SEC the Proxy Statement”). The Statement in preliminary form, and each of the Company and Parent shall use its reasonable best efforts to finalize the Proxy Statement respond as promptly as possible after such filingpracticable to any comments of the SEC with respect thereto. The Company shall notify Parent promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix If at any time prior to receipt of the Company Stockholder Approval there shall have occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. No filing of, or amendment to, the Proxy Statement or any response to comments of the SEC shall be made by the Company without first providing Parent a reasonable opportunity to review and approve comment thereon. The Company shall include in such document or response all comments reasonably proposed by Parent and shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. The Company shall use its reasonable discretion efforts to cause the proxy statement and all amendments thereto and all correspondence from the Company and its representatives Proxy Statement to be mailed to the SEC related to the Company Company’s stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. The . (b) If the adoption of this Agreement by the Company’s stockholders is required by Law, the Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies Offer (provided that the Company that it will not review the Proxy StatementMinimum Tender Condition has been satisfied), duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the “Company Stockholders Meeting Meeting”) for the purpose of seeking the Company stockholder approval and to solicit such approval from Stockholder Approval regardless of whether the stockholdersCompany Board determines at any time that this Agreement or the Merger are no longer advisable or recommends that the stockholders of the Company reject this Agreement or the Merger. In connection with the Stockholders Meeting, the The Company shall, through the Company Board, recommend to its stockholders that they approve give the Company Stockholder Approval (asubject to Section 6.02(b)). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 7.01(b) an increase shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal or the occurrence of any Adverse Change in Recommendation. Notwithstanding the foregoing, if Sub or any other subsidiary of Parent shall acquire at least 90% of the outstanding shares of Company Common Stock with or without exercising its rights under the Top-Up Option, the parties shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the expiration of the Offer without a stockholders meeting in accordance with Section 253 of the DGCL. (ic) its authorized Parent shall cause all shares of Common Stock purchased pursuant to 519,000,000 the Offer and (ii) its authorized all other shares of Preferred Company Common Stock owned by Sub or any other subsidiary of Parent to 16,000,000, (b) be voted in favor of the Amended approval and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms adoption of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) The Company shall, as reasonably soon as practicable following the date of execution of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement (as defined in Section 6.01(c)) in preliminary proxy statement form (provided that Parent, Sub and their counsel shall be given reasonable opportunity to be sent review and comment on the Proxy Statement prior to its filing with the stockholders SEC), and each of the Company relating Company, Parent and Sub shall use its best efforts to respond as promptly as practicable to any comments of the Company’s stockholders meeting (together SEC with any amendments or supplements respect thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix shall have the opportunity If at any time prior to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from receipt of the Company and its representatives Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the SEC related Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall use reasonable efforts to cause the Proxy Statement to be mailed to the Company Company's stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. Subject to the fiduciary duties of the Company Board under applicable law, (i) the Proxy Statement shall contain the recommendation of the Company Board that the stockholders of the Company vote to adopt and approve this Agreement and the Merger and (ii) if requested to do so by Parent at any time prior to the Company Stockholders Meeting (as defined in Section 6.01(b)) and subject to compliance with applicable laws, if there shall have been publicly announced an alternative Acquisition Proposal, the Company Board shall within a reasonable period of time following such request (and prior to the Company Stockholders Meeting) publicly reaffirm such recommendation and/or shall publicly announce that it is not recommending that the stockholders of the Company accept an alternative Acquisition Proposal, provided that such reaffirmation or announcement does not require significant delay in the timing of the Company Stockholders Meeting. (b) The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statementexecution of this Agreement, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting Meeting") for the purpose of seeking the Company stockholder approval and Stockholder Approval. Subject to solicit such approval from the stockholders. In connection with the Stockholders MeetingSection 5.02, the Company shall, through the Company Board, recommend to its stockholders that they approve (agive the Company Stockholder Approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(b) an increase in (i) its authorized shares shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and any Acquisition Proposal. (c) elect four directors Parent shall cause any and all shares of Company Common Stock owned by Parent, Sub or any other Subsidiary of Parent to be voted in favor of the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms approval of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following (and in any event within fifteen (15) Business Days) after the date of this Agreement, but no later than June 25, 2010hereof, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting in preliminary form (together with any amendments thereof or supplements theretothereto and any other required proxy materials, the “Proxy Statement”)) for a special meeting of the Company’s stockholders (including any adjournments and postponements thereof, the “Stockholder Meeting”) and file it with the SEC, and the Company and Parent shall cooperate with each other in connection with the preparation of the foregoing, including to collect from their respective Affiliates, as applicable, any necessary information for the preparation of the foregoing. The Company shall use its commercially reasonable best efforts to finalize have the Proxy Statement cleared by the SEC as promptly as possible practicable after such filingthe filing thereof, including using its commercially reasonable efforts to respond as promptly as reasonably practicable to any comments received from the SEC or its staff concerning the Proxy Statement. The Company shall notify the other parties hereto promptly notify Phoenix upon the receipt of any comments from the SEC or its staff or any other government officials and of any request from by the SEC or its staff or any other government officials for amendments or supplements to the Proxy Statement and shall provide Phoenix supply the others with copies of all correspondence between it and or any of its representativesRepresentatives, on the one hand, and the SEC, or its staff or any other government officials, on the other hand, with respect to the Proxy Statement. Phoenix Without limiting the generality of the foregoing, each of Parent and Merger Sub shall have cooperate with the Company, and shall collect from their Affiliates any necessary information, in connection with the preparation and filing of the Proxy Statement, including promptly furnishing to the Company in writing upon request any and all information relating to Parent, Merger Sub and their respective Affiliates as may be required to be set forth in the Proxy Statement under Applicable Law. Parent shall ensure that such information supplied by it and its Affiliates for inclusion in the Proxy Statement will not, on the date the Proxy Statement is first mailed to stockholders of the Company and at the time of the Stockholder meeting, contains any untrue statement of material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto), or responding to any comments of the SEC with respect thereto, the Company shall provide Parent and its counsel with a reasonable opportunity to review and approve comment on such document or response and shall consider Parent’s comments in its reasonable discretion good faith. The Company shall pay all filing fees required to be paid to the proxy statement and all amendments thereto and all correspondence from SEC in connection with the Proxy Statement. (b) The Company shall ensure that the Proxy Statement (i) will not, on the date it is first mailed to stockholders of the Company and its representatives at the time of the Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) will comply as to form in all material respects with the applicable requirements of the Exchange Act. Notwithstanding the foregoing, the Company assumes no responsibility with respect to information supplied by or on behalf of Parent or Merger Sub or their Affiliates in writing for inclusion or incorporation by reference in the Proxy Statement. If, prior to the Stockholder Meeting, the Company, Parent or Merger Sub discovers that information supplied by Parent and its Affiliates in writing for inclusion in the Proxy Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party hereto which discovers such information shall promptly notify the other parties hereto and the Company shall promptly prepare and file with the SEC related an appropriate amendment or supplement to the Company stockholders meeting Proxy Statement and, to the extent required by Applicable Law or the SEC or its staff, disseminate such amendment or supplement to the Company’s stockholders. (the “Stockholders Meeting”c) prior to filing with the SEC. The Company shall, as soon As promptly as reasonably practicable following the date the SEC completes review clearance of the Proxy Statement or notifies by the SEC (and in any event within ten Business Days after clearance by the SEC), the Company that it will not review shall duly set a record date for the Stockholder Meeting and cause the Proxy Statement, duly call Statement in definitive form and give notice of the Stockholder Meeting to be mailed to the Company’s stockholders. As promptly as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders, the Company stockholders by mailing shall in accordance with Applicable Law and the definitive Proxy StatementCompany’s governing documents, convene and hold the Stockholders Stockholder Meeting for the purpose of seeking Company stockholder approval considering and taking action upon the matters requiring Stockholder Approval; provided that notwithstanding anything else to solicit such approval from the stockholders. In connection with the Stockholders Meetingcontrary herein, the Company shall, through may postpone or adjourn the Board, recommend to its stockholders that they approve (a) an increase in Stockholder Meeting (i) its authorized shares with the consent of Common Stock to 519,000,000 and Parent, (ii) its authorized for the absence of a quorum necessary to conduct the business of the Stockholder Meeting, (iii) after consultation with Parent, to ensure that any necessary supplement or amendment to the Proxy Statement is provided to the holders of shares of Preferred Company Common Stock to 16,000,000within a reasonable amount of time in advance of the Stockholder Meeting, (biv) after consultation with Parent, to allow for additional time for the Amended and Restated Certificate solicitation of Designation proxies in order to obtain the Stockholder Approval, or (Series A-1v) and if the Company is required to postpone or adjourn the Company Meeting by applicable Law, provided, however, that the Company may not postpone the Stockholders Meeting for more than an aggregate of twenty Business Days without the prior written consent of Parent (c) elect four directors to the Boardwhich shall not be unreasonably withheld, conditioned or delayed). The Company shall within one consult with Parent to set the record date for the Stockholder Meeting and shall not change the record date or set a new record date for the Stockholder Meeting without consulting with Parent in good faith. Unless the Company Board or any committee thereof has made an Adverse Recommendation Change in compliance with Section 6.03, the Company shall (1x) Business Day make the Company Recommendation to the stockholders of obtaining the Company and include such stockholder approvals recommendation in the Proxy Statement, (y) use its commercially reasonable efforts to cause the definitive Proxy Statement to be mailed to the Company’s stockholders and to solicit from stockholders of the Company proxies in favor of the adoption of this Agreement and (z) take all other action necessary or advisable to secure the vote of the holders of shares of Company Common Stock required by Applicable Law to effect the Merger. In the event of an Adverse Recommendation Change, the Company shall continue to submit this Agreement to the stockholders of the Company for approval at the Stockholder Meeting unless this Agreement shall have been terminated in accordance with its terms prior to the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementStockholder Meeting.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable practicable, but in any event within 45 days, following the date of this Agreement, but no later than June 25, 2010, the Company shall shall, with the assistance of Parent, prepare the Proxy Statement and cause file the Proxy Statement with the SEC. Parent, HoldCo, Merger Sub 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, HoldCo and Merger Sub will furnish to the Company in writing the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be filed with set forth in the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize resolve all SEC comments with respect to the Proxy Statement as promptly as possible practicable after such filingreceipt thereof. The Company and each Parent Entity will promptly correct any information provided by it for use in the Proxy Statement, if and to the extent that it shall have become false or misleading in any material respect prior to the Company Stockholders’ Meeting. The Company shall cause the Proxy Statement, as so corrected, to be filed with the SEC and to be disseminated to its stockholders, in each case, as and to the extent required by applicable federal securities laws. Parent and its counsel shall be given a reasonable opportunity to review and comment on the Proxy Statement before it is filed with the SEC, and the Company shall give good faith and reasonable consideration to any comments made by Parent or its counsel. The Company shall promptly notify Phoenix upon the receipt of and provide to Parent and its counsel any comments the Company or its counsel receives from the SEC or any request from the SEC for amendments or supplements with respect to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on any request by the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives SEC for any amendment to the SEC related to the Company stockholders meeting Proxy Statement or for additional information. (the “Stockholders Meeting”b) prior to filing with the SEC. The Company shall, as soon As promptly as reasonably practicable and, in any event, no later than 40 days following the date the SEC completes review clearance of the Proxy Statement or notifies by the SEC, the Company, acting through the Company that it will not review the Proxy StatementBoard, shall (i) take all action necessary to duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Stockholders Meeting a meeting of its stockholders for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, obtaining the Company shall, through Stockholder Approval (the Board, recommend to its stockholders that they approve (a“Company Stockholders’ Meeting”) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The extent that the Company Board shall within one (1) Business Day of obtaining such stockholder approvals have effected an Adverse Recommendation Change in accordance with Section 5.4(c), include in the terms of Proxy Statement a statement to the effect that the Company Board (A) has unanimously determined that the Merger and this AgreementAgreement are advisable and (B) unanimously recommends that the Company’s stockholders vote to adopt this Agreement at the Company Stockholders’ Meeting; provided, however, that the Exchange Agreement and Company shall be permitted to delay, postpone or cancel the Investor Rights Agreement, take all requisite actions Company Stockholders’ Meeting (including but not beyond the filing Termination Date) if in the good faith judgment of the Charter Amendment, Company Board or any committee thereof (after consultation with its legal counsel) the Certificate of Designation (Series B) and failure to do so would reasonably be expected to breach the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementCompany Board’s fiduciary duties under applicable Law.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following the date of this Agreement, but in no event later than June 2521 days following the date hereof (such 21 days, 2010the “Proxy Filing Period”), the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to form, and the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its all commercially reasonable best efforts to finalize (i) respond as promptly as practicable to any comments of the SEC with respect thereto, (ii) to prepare and file any amendments to the Proxy Statement necessary to address or correct matters raised in the SEC’s comments, and (iii) to cause the Proxy Statement to be mailed to the Company Stockholders as promptly as possible after such filingpracticable following the date of this Agreement, but in no event later than five days following the filing of the definitive Proxy Statement with the SEC. The Company shall promptly notify Phoenix Parent upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix Parent with copies of all correspondence between it the Company and its representativesRepresentatives, on the one hand, and the SEC, on the other hand, relating to the Proxy Statement. Phoenix To the extent required by applicable Law, if at any time prior to receipt of the Company Stockholder Approval there shall have occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company or Parent, as the case may be, will promptly inform the other of such occurrence, and the Company and Parent shall cooperate in promptly preparing, filing with the SEC and mailing to the Company Stockholders such an amendment or supplement. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement or any amendments or supplements thereto or responding to any comments of the SEC with respect thereto, the Company (A) shall provide Parent a reasonable opportunity to review and approve comment on such document or response and (B) shall include in its reasonable discretion the proxy statement and such document or response all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting comments reasonably proposed by Parent. (the “Stockholders Meeting”b) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date of this Agreement (but taking into account the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call time necessary to prepare and give notice to the Company stockholders by mailing distribute the definitive Proxy StatementStatement and the time reasonably necessary to solicit proxies from the Company Stockholders), establish a record date for, duly call, give notice of, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and Stockholders’ Meeting. Subject to solicit such approval from the stockholders. In connection with the Stockholders MeetingSection 5.02, the Company shallshall include the Company Board Recommendation in the Proxy Statement. Subject to Section 5.02, through the Board, recommend Company shall take all action that is both reasonable and lawful to its stockholders that they approve (a) an increase solicit from the Company Stockholders proxies in (i) its authorized shares favor of Common Stock the proposal to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors adopt this Agreement. Notwithstanding anything to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals contrary contained in accordance with the terms of this Agreement, the Exchange Company may adjourn or postpone the Stockholders’ Meeting to the extent necessary to ensure that any necessary supplement or amendment to the Proxy Statement is provided to Company Stockholders in advance of a vote on the adoption of this Agreement and the Investor Rights Agreementor, take all requisite actions (including the filing if as of the Charter Amendment, time for which the Certificate Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Designation Company Common Stock represented (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delawareeither in person or by proxy) to effect approvals constitute a quorum necessary to conduct the business of such Stockholders’ Meeting; provided that any Stockholders’ Meeting so adjourned or postponed shall be held as promptly as permitted by the Charter Documents and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreementapplicable Law.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) The Company shall, as reasonably soon as practicable following and in any event within twenty (20) Business Days after the date of this Agreementhereof, but no later than June 25, 2010, the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to the stockholders form, and each of the Company relating and Parent shall use its reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Parent and Merger Sub shall promptly furnish to the Company’s stockholders meeting (together with any amendments or supplements thereto, Company all information concerning Parent and Merger Sub required to be set forth in the “Proxy Statement”). Each of Parent and Merger Sub shall promptly correct any information provided by it for use in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and to correct any material omissions therein. The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix with make available to Parent copies of all correspondence between it the Company and the SEC or its staff with respect to the Proxy Statement. Each of the parties shall use its reasonable best efforts to resolve all SEC comments with respect to the Proxy Statement as promptly as practicable after receipt thereof. If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall provide Parent and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the counsel a reasonable opportunity to review the Proxy Statement prior to its being filed with the SEC and approve in shall provide Parent and their counsel a reasonable opportunity to review all amendments and supplements to the Proxy Statement and all responses to requests for additional information prior to their being filed with, or sent to, the SEC. The Company shall give reasonable and good faith consideration to any comments made by Parent or its counsel. The Company shall use its reasonable discretion efforts to cause the proxy statement and all amendments thereto and all correspondence from the Company and its representatives Proxy Statement to be mailed to the SEC related to the Company Company’s stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. . (b) The Company shall, as soon as reasonably practicable following after the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statementhereof, (i) duly call and call, establish a record date for, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the “Company Stockholders Meeting Meeting”) for the purpose of seeking the Company stockholder approval Stockholder Approval, and shall use reasonable best efforts to take all lawful action to solicit the adoption of this Agreement by such approval from the stockholders. In connection with the Stockholders Meeting, and (ii) through the Company shallBoard, through the Boardsubject to an Adverse Recommendation Change (as permitted by, and in accordance with, Section 5.03), recommend to its stockholders that they approve give the Company Stockholder Approval. The Company Board shall include the Company Recommendation in the Proxy Statement (a) except to the extent that the Company Board shall have effected an increase Adverse Recommendation Change as permitted by, and in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000accordance with, (b) the Amended and Restated Certificate of Designation (Series A-1) and Section 5.03). (c) elect four directors The parties agree to cooperate in good faith to determine whether Parent or Merger Sub “beneficially owns” (within the Boardmeaning of the Company Certificate) ten percent (10%) or more of the Company Common Stock as of the record date for the Company Stockholders Meeting. The Parent and Merger Sub shall cause all shares of the Company Common Stock owned by Parent and Merger Sub, and shall within one use reasonable best efforts to cause all shares of the Company Common Stock owned by their controlled affiliates, to be voted in favor of the adoption of this Agreement. (1d) Business Day of obtaining such stockholder approvals in accordance with Promptly following the terms execution of this Agreement, the Exchange Agreement Parent shall cause Merger Sub’s sole stockholder to execute and the Investor Rights Agreementdeliver, take all requisite actions (including the filing in accordance with Section 228 of the Charter AmendmentDGCL and in its capacity as the sole stockholder of Merger Sub, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by a written consent adopting this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the adoption of this Agree ment by the Company's stockholders is required by Law, the Company shall, at Parent's request, as reasonably soon as practicable following the date of this Agreementacceptance for payment of, but no later than June 25and payment for, 2010Company Common Stock pursuant to the Offer, the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to the stockholders form, and each of the Company relating and Parent shall use its commercially reasonable efforts to respond as promptly as practicable to any comments of the Company’s stockholders meeting (together SEC with any amendments or supplements respect thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix shall have the opportunity If at any time prior to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from receipt of the Company and its representatives Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the SEC related Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects; provided, however, that Parent shall cooperate with the Company to resolve such -------- ------- objections. The Company shall use its best efforts to cause the Proxy Statement to be mailed to the Company Company's stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. (b) If the adoption of this Agreement by the Company's stockholders is required by Law, the Company shall, at Parent's request, as soon as practicable following the acceptance for payment of, and payment for, Company Common Stock pursuant to the Offer, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") for the ---------------------------- purpose of seeking the Company Stockholder Approval. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies through the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000give the Company Stockholder Approval, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The extent that the Company Board shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms have withdrawn or modified its approval or recommendation of this Agreement, the Exchange Agreement and Offer or the Investor Rights Merger as permitted by Section 5.02(b). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(b) shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal or (ii) the withdrawal or modification by the Company Board of its approval or recommendation of this Agreement, the Offer or the Merger. Notwithstanding the foregoing, if Parent or any of its affiliates shall own at least 90% of the outstanding shares of Company Common Stock and of each series of Company Series Preferred Stock, Parent shall take all requisite actions (including necessary and appropriate action to cause the filing Merger to become effective as soon as practicable after the expiration of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) Offer without a stockholders meeting in accordance with the Secretary of State Section 253 of the State DGCL. (c) Parent shall cause all shares of Delaware) Company Common Stock purchased pursuant to effect approvals the Offer and consummate all other shares of Company Capital Stock owned by Parent or Sub or any other subsidiary of Parent to be voted in favor of the transactions contemplated by adoption of this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following after the date of this AgreementAgreement (and, but no in any event, not later than June 25, 2010the 15th Business Day immediately thereafter), the Company shall (i) prepare (with Parent’s reasonable cooperation to the extent required) and cause to be filed file with the SEC a preliminary proxy statement (as amended or supplemented from time to time, the “Proxy Statement”) to be sent to the stockholders of the Company relating to the special meeting of the Company’s stockholders meeting (together with any amendments the “Company Stockholders Meeting”) to be held to consider the adoption and approval of this Agreement and (ii) set a record date for the Company Stockholders Meeting and commence a broker search pursuant to Section 14a-13 of the Exchange Act in connection therewith. No filing or supplements theretomailing of, or amendment or supplement to, the “Proxy Statement”Statement will be made by the Company without providing Parent a reasonable opportunity to review and comment thereon (and including therein all comments reasonably proposed by Parent) and without the prior approval of Parent (which shall not be unreasonably withheld). The Company will advise Parent promptly after it receives any oral or written request by the SEC for amendment of the Proxy Statement or comments on the Proxy Statement and responses thereto or requests by the SEC for additional information, and will promptly provide Parent with true, correct and complete copies of any written communication from the SEC or any state securities commission and a reasonable opportunity to participate in the responses thereto. The Company shall respond to any requests or comments from the SEC as promptly as practicable and will provide Parent a reasonable opportunity to review and comment thereon (and include all comments reasonably proposed by Parent in such any response); provided, that the Company will not file or otherwise deliver to the SEC any such response without the prior approval of Parent (which shall not be unreasonably withheld). The Company shall cause the Proxy Statement to be mailed to its stockholders on or prior to the third Business Day after the resolution of any comments thereon from the SEC or, if the SEC does not inform the Company that it intends to review the Proxy Statement on or before the 10th calendar day following the filing of the Proxy Statement, on or prior to the third Business Day following such 10th calendar day. The Company shall use its reasonable best efforts to finalize cause all documents that it is responsible for filing with the SEC or other regulatory authorities under this Section 5.5(a) to comply in all material respects with all applicable requirements of Law. If, at any time prior to the Effective Time, any information should be discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement as promptly as possible after would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such filing. The Company information shall promptly notify Phoenix upon the receipt other parties hereto and an appropriate amendment or supplement describing such information shall promptly be filed by the Company with the SEC and, to the extent required under applicable Law, disseminated by the Company to stockholders of the Company; provided, that the delivery of such notice and the filing of any comments from such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the SEC or remedies available hereunder to any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting party. (the “Stockholders Meeting”b) prior to filing with the SEC. The Company shall, as soon As promptly as reasonably practicable following the date the SEC completes review resolution of any comments on the Proxy Statement or notifies from the SEC (or, if the SEC does not inform the Company that it will not intends to review the Proxy Statement on or before the 10th calendar day following the filing of the Proxy Statement, as promptly as reasonably practicable following such 10th calendar day), the Company, acting through the Company Board, shall duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Company Stockholders Meeting for the purpose of seeking obtaining the Company stockholder approval Stockholder Approval and, if applicable, the advisory vote required by Rule 14a-21(c) under the Exchange Act in connection therewith. The Company Board may (and, in the case of the following clauses (ii) and (iii), shall if requested by Parent) postpone or adjourn the Company Stockholders Meeting: (i) with the consent of Parent; (ii)(A) due to the absence of a quorum or (B) if the Company has not received proxies representing a sufficient number of Shares to obtain the Company Stockholder Approval, whether or not a quorum is present, to solicit additional proxies; (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside counsel and Parent is necessary under applicable law, and for such approval from supplemental or amended disclosure to be disseminated and reviewed by the stockholders. In connection Company’s stockholders prior to the Company Stockholders Meeting; or (iv) if the Company Board has effected an Adverse Recommendation Change pursuant to (and in compliance with) Section 5.4(e) and the Company Board determines in good faith, after consultation with outside counsel, that the failure to postpone or adjourn the Company Stockholders Meeting would violate NRS 92A.120, for so long as is necessary to avoid such violation; provided, that (x) nothing in the foregoing clauses (ii) or (iii) shall permit any postponement or adjournment of the Company Stockholders Meeting to a date on or after the date that is 10 Business Days prior to the Termination Date and (y) the Company may postpose or adjourn the Company Stockholders Meeting, and Parent may request that the Company shallpostpone or adjourn the Company Stockholders Meeting, pursuant to the foregoing clause (ii) only three times each and, subject to the foregoing clause (x), in each case only for up to 10 Business Days. (c) Except to the extent that the Company Board shall have effected an Adverse Recommendation Change in accordance with Section 5.4(d) or Section 5.4(e), the Company, through the Company Board, shall (i) recommend to its stockholders that they adopt and approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 this Agreement and the transactions contemplated hereby and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) include such recommendation in the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the BoardProxy Statement. The Company shall within one (1) Business Day of obtaining such stockholder approvals Unless this Agreement is validly terminated in accordance with Section 7.1 and, to the extent required under the terms of this Agreement, the Exchange Agreement Company pays to Parent the Termination Fee in accordance with Section 7.3, the Company’s obligations pursuant to Section 5.5(b) and this Section 5.5(c) shall not be affected by the Investor Rights Agreementcommencement, public proposal, public disclosure or communication to the Company or any other Person of any Acquisition Proposal. Subject to Section 5.4, the Company shall take all requisite actions action that is both reasonable and lawful to (including the filing x) solicit from its stockholders proxies in favor of the Charter Amendmentadoption and approval of this Agreement and, if applicable, the Certificate of Designation advisory vote required by Rule 14a-21(c) under the Exchange Act in connection therewith, and (Series By) and secure the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State vote of the State stockholders of Delaware) the Company required by the rules of NASDAQ or the NRS to effect approvals obtain such adoption and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreementapprovals.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the adoption of this Agreement by the Company's stockholders is required by Law, the Company shall, as reasonably soon as practicable following the date expiration of this Agreementthe Offer (provided that the Minimum Tender Condition has been satisfied), but no later than June 25, 2010, the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to the stockholders form, and each of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company and Parent shall use its reasonable best efforts to finalize the Proxy Statement respond as promptly as possible after such filingpracticable to any comments of the SEC with respect thereto. The Company shall notify Parent promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix If at any time prior to receipt of the Company Stockholder Approval there shall have occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. No filing of, or amendment to, the Proxy Statement or any response to comments of the SEC shall be made by the Company without first providing Parent a reasonable opportunity to review and approve comment thereon. The Company shall include in such document or response all comments reasonably proposed by Parent and shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. The Company shall use its reasonable discretion efforts to cause the proxy statement and all amendments thereto and all correspondence from the Company and its representatives Proxy Statement to be mailed to the SEC related to the Company Company's stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. The . (b) If the adoption of this Agreement by the Company's stockholders is required by Law, the Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies Offer (provided that the Company that it will not review the Proxy StatementMinimum Tender Condition has been satisfied), duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the Stockholders Meeting COMPANY STOCKHOLDERS MEETING) for the purpose of seeking the Company stockholder approval and to solicit such approval from Stockholder Approval regardless of whether the stockholdersCompany Board determines at any time that this Agreement or the Merger are no longer advisable or recommends that the stockholders of the Company reject this Agreement or the Merger. In connection with the Stockholders Meeting, the The Company shall, through the Company Board, recommend to its stockholders that they approve give the Company Stockholder Approval (a) an increase in (i) subject to Section 6.2(b)). Without limiting the generality of the foregoing, the Company agrees that its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors obligations pursuant to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms first sentence of this AgreementSection 7.1(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Exchange Agreement and Company of any Company Takeover Proposal or the Investor Rights Agreement, take all requisite actions (including the filing occurrence of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.any Adverse Change in 39

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed file with the SEC a preliminary proxy statement (as amended or supplemented, the Proxy Statement) to be sent to the stockholders of the Company relating in connection with the meeting of the Company’s stockholders for the purpose of obtaining the Stockholder Approval (the Company Stockholders’ Meeting). The Company and the Purchaser shall cooperate in the preparation of the Proxy Statement. The information supplied by the Company for inclusion in the Proxy Statement shall not, on the date the Proxy Statement is first mailed to the Company’s stockholders meeting (together stockholders, at the time of the Company Stockholders’ Meeting and at the First Closing, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not false or misleading; or omit to state any material fact necessary to correct any statement in any earlier communication with respect to the solicitation of proxies for the Company Stockholders’ Meeting which has become false or misleading. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder. If at any amendments time prior to the First Closing, any event or supplements theretoinformation should be discovered by the Company which should be set forth in a supplement to the Proxy Statement, the “Company shall promptly inform the Purchaser. Notwithstanding the foregoing, the Company makes no representation or warranty with respect to any information supplied by the Purchaser which is contained in the Proxy Statement”). . (b) The Company shall present in the Proxy Statement as separate proposals for separate votes by the Company’s stockholders each item requiring a separate vote threshold and shall segregate proposals seeking stockholder approval of Bylaw Amendments and Certificate of Incorporation Amendments that are subject to different stockholder approval thresholds. (c) The Company shall use its all commercially reasonable best efforts to finalize have the Proxy Statement cleared by the SEC and its staff under the Exchange Act, as promptly as possible practicable after such filing. The Company shall cause the Proxy Statement to be mailed to holders of Company Common Stock as promptly as practicable after Proxy Statement is cleared by the SEC. Without limiting any other provision herein, the Proxy Statement will contain such information and disclosure so that the Proxy Statement conforms in all material respects to the requirements of the Exchange Act. (d) The Company shall promptly notify Phoenix upon Purchaser of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply the Purchaser with copies of all correspondence between it and the Company or any of its representatives, on the one hand, representatives and the SEC, on the other handSEC or its staff. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the The Company and its representatives the Purchaser shall cooperate with each other and provide to each other all information necessary in order to prepare the SEC related Proxy Statement as expeditiously as practicable. (e) If at any time prior to the Company stockholders meeting (Stockholders’ Meeting there shall occur any event with respect to the “Stockholders Meeting”) prior Company, or with respect to filing other information supplied by the Company for inclusion in the Proxy Statement, which event is required to be described in an amendment of or a supplement to the Proxy Statement, such event shall be so described, and such amendment or supplement shall be promptly filed with the SEC. SEC and, as required by Law, disseminated to the stockholders of the Company. (f) The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statementhereof, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Stockholders Company Stockholders’ Meeting for the purpose of seeking the Stockholder Approval. The Company stockholder approval shall engage a nationally recognized proxy solicitation firm for the purposes of seeking the Stockholder Approval and shall instruct such firm to solicit proxies in a manner that is designed to obtain such approval from the stockholderswithin a 20 Business Day solicitation period, taking into account all relevant facts and circumstances. In connection with the Stockholders Meeting, the The Company shall, through the Boardits Board of Directors, recommend to its stockholders that they approve give the Stockholder Approval (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000the Company Board Recommendation), (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Boardextent that the Company’s Board of Directors shall have withdrawn or modified its recommendation of this Agreement pursuant to Section 5.4 below. (g) The information supplied by the Purchaser for inclusion in the Proxy Statement shall not, on the date the Proxy Statement is first mailed to the Company’s stockholders, at the time of the Company Stockholders’ Meeting and at the First Closing, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not false or misleading. If at any time prior to the First Closing, any event or information should be discovered by the Purchaser which should be set forth in a supplement to the Proxy Statement, the Purchaser shall promptly inform the Company of the same. Notwithstanding the foregoing, the Purchaser makes no representation or warranty with respect to any information supplied by the Company which is contained in the Proxy Statement. (h) The Company Stockholders’ Meeting shall within one (1) Business Day of obtaining such stockholder approvals in accordance with be held no later than October 15, 2006, unless the terms of this Agreement, SEC and its staff have not cleared the Proxy Statement under the Exchange Agreement and the Investor Rights AgreementAct by September 5, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement2006.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, the Company Parent shall prepare and cause to be filed provide a draft for review by the Sellers and file with the SEC a preliminary proxy statement to be sent to the stockholders on Schedule 14A of the Company relating to the Company’s stockholders meeting Exchange Act (together with any amendments or supplements thereto, the “Proxy Statement”). ) relating to a special meeting of the stockholders of the Parent (the “Parent Stockholder Meeting”) at which the stockholders of the Parent will vote on, among other things, a proposal to approve (“Parent Stockholder Approval”) the issuance of Parent Common Stock upon conversion of the Parent Preferred Stock and any other proposals necessary to permit the consummation of the Acquisition as required by applicable Law, including the rules and regulations of the NYSE American provided, that each of the Parent and the Sellers shall consult with the other party and provide the other party a reasonable period of time to review such preliminary Proxy Statement and any amendments thereto prior to the filing of such document with the SEC and will reasonably consider any comments from the other party. (b) The Company parties shall use its reasonable best efforts to finalize reasonably cooperate with each other in the preparation of the Proxy Statement and to have such preliminary Proxy Statement cleared by the SEC as promptly as possible practicable after such filing. The Company Parent shall notify the Sellers promptly notify Phoenix upon following the receipt of any comments (whether written or oral) from the SEC or and of any request from by the SEC for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix will supply the Sellers with copies of all correspondence with the SEC with respect to the Proxy Statement between it Parent and any of its representatives, on the one hand, and the SEC, SEC on the other hand. Phoenix The Proxy Statement, and any supplement or amendment thereto, shall comply in all material respects with all applicable requirements of Law. (c) Parent shall date the Proxy Statement as of the approximate date of mailing to Parent stockholders and shall use its commercially reasonable efforts to cause Proxy Statement to be mailed to Parent stockholders at the earliest practicable date. Whenever any event occurs which is required to be set forth in an amendment or supplement to the Proxy Statement, (A) Parent shall promptly inform the Sellers of such occurrences, (B) Parent shall prepare and file with the SEC any such amendment or supplement to the Proxy Statement, (C) Parent shall use its commercially reasonable efforts to have the opportunity Proxy Statement prepared for use at the Parent Stockholder Meeting, and (D) Parent shall use commercially reasonable efforts to review and approve in its reasonable discretion have the proxy statement and all amendments thereto and all correspondence from the Company and its representatives amendment of or supplement to Proxy Statement cleared by the SEC related to the Company stockholders meeting as quickly as commercially practical. (the “Stockholders Meeting”d) prior to filing with the SEC. The Company shallParent will, as soon as reasonably practicable practicable, following the date on which the SEC completes review of the preliminary Proxy Statement or notifies is cleared by the Company that it will not review the Proxy StatementSEC, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, and as soon as practicable convene and hold the Stockholders Parent Stockholder Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from obtaining the stockholdersParent Stockholder Approval. In connection with the Stockholders Meeting, the Company shallParent will, through the Boardits board of directors, recommend to its Parent stockholders that they approve all of the proposals coming before the stockholders of the Parent at the Parent Stockholders Meeting. (ae) an increase in (i) If on the date of the Parent Stockholder Meeting, Parent has not received proxies representing a sufficient number voting securities to approve all proposals being voted on at the Parent Stockholder Meeting, Parent shall adjourn its authorized shares stockholder meeting until such date as shall be mutually agreed upon by Parent and the Sellers, which date shall not be less than 5 days nor more than 10 days after the date of Common Stock to 519,000,000 adjournment, and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors subject to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms and conditions of this AgreementAgreement shall continue to use its commercially reasonable efforts, together with its proxy solicitor (if any), to assist in the Exchange Agreement solicitation of proxies from stockholders relating to such party’s stockholder approval at its stockholder meeting. Parent shall only be required to adjourn or postpone the Parent Stockholder Meeting one time pursuant to this Section 6.6(e). (f) The Sellers and the Investor Rights Agreement, take all requisite actions (including Companies will promptly provide to Parent information that is required to be included in the filing Proxy Statement with respect to the Sellers and the Companies and supplement such information from time to time until the date of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementParent Stockholder Meeting.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the approval of this Agreement by the Company's stockholders is required by Applicable Law, the Company shall, as reasonably soon as practicable following the date expiration of this Agreementthe Offer, but no later than June 25prepare in accordance with the rules and regulations of the SEC and file with the SEC the Proxy Statement in preliminary form, 2010and each of the Company and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company and Parent shall cooperate with one another in connection with the preparation of the Proxy Statement. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. If at any time prior to receipt of Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and cause mail to be filed with the SEC a preliminary proxy statement its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to be sent to the stockholders of which Parent reasonably objects, unless the Company relating is advised by outside counsel that it is required to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”)do so by Applicable Law. The Company shall use its reasonable best efforts to finalize cause the Proxy Statement to be mailed to the Company's stockholders as promptly as possible practicable after such filing. The Company shall promptly notify Phoenix upon filing the receipt of any comments Proxy Statement with the SEC and receiving clearance from the SEC or any request from with respect to such Proxy Statement. (b) If the SEC for amendments or supplements to approval of this Agreement by the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representativesCompany's stockholders is required by Applicable Law, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies the Company that it will not review the Proxy StatementOffer, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Company Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholdersStockholder Approval. In connection with the Stockholders Meeting, the The Company shall, through the Company Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 this Agreement and (ii) its authorized shares of Preferred Stock to 16,000,000the Merger, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The extent that the Company Board shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms have withdrawn or modified its approval or recommendation of this Agreement, the Exchange Agreement and Offer or the Investor Rights AgreementMerger as permitted by Section 6.02(b). Notwithstanding the foregoing, if Sub or any other Subsidiary of Parent shall acquire at least ninety percent (90%) of the outstanding shares of Company Common Stock, the parties shall, at the request of Parent, take all requisite actions (including necessary and appropriate action to cause the filing Merger to become effective as soon as practicable thereafter without a stockholders meeting in accordance with Section 253 of the Charter Amendment, DGCL. (c) Parent shall cause all shares of Company Common Stock purchased pursuant to the Certificate Offer and all other shares of Designation (Series B) and the Amended and Restated Certificate Company Common Stock owned by Sub or any other Subsidiary of Designation (Series A-1) with the Secretary of State Parent to be voted in favor of the State approval of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. As promptly as reasonably practicable following (a) If the date approval of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to Agreement by the Company’s stockholders meeting (together with any amendments or supplements theretois required by Applicable Law, the “Company shall, as soon as practicable following the expiration of the Offer, prepare in accordance with the rules and regulations of the SEC and file with the SEC the Proxy Statement in preliminary form. Each of the Company and Parent shall furnish all information concerning such person to the other as may be reasonably requested in connection with the preparation, filing and distribution of the Proxy Statement”). Each of the Company and Parent shall use its commercially reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix Prior to filing or mailing any Proxy Statement, or any amendment or supplement thereto, or responding to any comments of the SEC with respect thereto, the Company shall have the (i) provide Parent an opportunity to review and approve comment thereon, (ii) include in its reasonable discretion the proxy statement such document or response all comments reasonably proposed by Parent and all amendments thereto and all correspondence from the Company and its representatives (iii) not file or mail such document or response to the SEC related prior to receiving the consent of Parent, which shall not be unreasonably withheld. The Company shall use its commercially reasonable efforts to cause the Proxy Statement to be mailed to the Company Company’s stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. The . (b) If the approval of this Agreement by the Company’s stockholders is required by Applicable Law, the Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies Offer and acceptance for payment of the Company that it will not review the Proxy StatementShares by Sub, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Company Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholdersStockholder Approval. In connection with the Stockholders Meeting, the The Company shall, through the Company Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 this Agreement and (ii) its authorized shares of Preferred Stock to 16,000,000the Merger, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The extent that the Company Board shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms have withdrawn or modified its approval or recommendation of this Agreement, the Exchange Agreement and Offer or the Investor Rights AgreementMerger as permitted by Section 6.02(b). Notwithstanding the foregoing, if Sub or any other Subsidiary of Parent shall acquire at least 90% of the outstanding shares of Company Common Stock, the parties shall, at the request of Parent, take all requisite actions (including necessary and appropriate action to cause the filing Merger to become effective as soon as practicable after the expiration of the Charter AmendmentOffer without a stockholders’ meeting in accordance with Section 253 of the DGCL. (c) If the approval of this Agreement by the Company’s stockholders is required by Applicable Law, each of Parent and Sub agrees that it will vote, or cause to be voted, all Shares purchased pursuant to the Certificate Offer and all other Shares owned by it or any of Designation (Series B) its Subsidiaries in favor of the approval of Merger and the Amended and Restated Certificate adoption of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following after the date of this Agreement, but the Company shall (i) prepare and file a Proxy Statement with the SEC in preliminary form as required by the Exchange Act (in any event no later than June 25fifteen calendar days after the date hereof) and (ii) set a preliminary record date for the Company Stockholders Meeting and commence a broker search pursuant to Section 14a-13 of the Exchange Act in connection therewith. The Company shall consult with Parent in good faith regarding the foregoing. The Company shall use all reasonable efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after the filing thereof. The Company shall obtain and furnish the information required to be included in the Proxy Statement, 2010shall provide Parent and Merger Sub with any comments that may be received from the SEC or its staff with respect thereto, shall respond promptly to any such comments made by the SEC or its staff with respect to the Proxy Statement, and shall cause the Proxy Statement in definitive form to be mailed to the Company’s stockholders at the earliest practicable date. If at any time prior to obtaining the Company Stockholder Approval, any information relating to the Merger, the Company, Parent, Merger Sub or any of their respective Affiliates, directors or officers should be discovered by the Company or Parent that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto and the Company shall prepare and cause to be filed promptly file with the SEC a preliminary proxy statement an appropriate amendment or supplement describing such information and, to be sent the extent required by applicable Law, disseminate such amendment or supplement to the stockholders of the Company. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company relating shall give Parent, Merger Sub and their counsel a reasonable opportunity to review and comment on such document or response and shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent, Merger Sub and their counsel. (b) As promptly as practicable after the Proxy Statement is cleared by the SEC for mailing to the Company’s stockholders meeting (together with any amendments or supplements theretostockholders, the Company shall duly call, give notice of, convene and hold a special meeting of its stockholders (the “Company Stockholders Meeting”) solely for the purpose of obtaining the Company Stockholder Approval and, if applicable, the advisory vote required by Rule 14a-21(c) under the Exchange Act in connection therewith (and such Company Stockholders Meeting shall in any event be no later than forty-five calendar days after (i) the tenth calendar day after the preliminary Proxy Statement therefor has been filed with the SEC if by such date the SEC has not informed the Company that it intends to review the Proxy Statement or (ii) if the SEC has, by the tenth calendar day after the preliminary Proxy Statement therefor has been filed with the SEC, informed the Company that it intends to review the Proxy Statement”, the date on which the SEC confirms that it has no further comments on the Proxy Statement). The Company may postpone or adjourn the Company Stockholders Meeting solely (i) with the consent of Parent; (ii)(A) due to the absence of a quorum or (B) if the Company has not received proxies representing a sufficient number of Shares for the Company Stockholder Approval, whether or not a quorum is present, to solicit additional proxies; provided, that the Company may not postpone or adjourn the Company Stockholders Meeting more than a total of two times pursuant to the preceding clause (ii)(A) and/or clause (ii)(B); or (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Stockholders Meeting. Notwithstanding the foregoing, the Company shall, at the request of Parent, to the extent permitted by Law, adjourn the Company Stockholders Meeting to a date specified by Parent for the absence of a quorum or if the Company has not received proxies representing a sufficient number of Shares for the Company Stockholder Approval; provided, that the Company shall not be required to adjourn the Company Stockholders Meeting more than one time pursuant to this sentence, and no such adjournment pursuant to this sentence shall be required to be for a period exceeding ten Business Days or for any period that would require the Company to select a different record date for the Company Stockholders Meeting, provided, further, that Parent shall not be entitled to exercise the foregoing right to cause the adjournment of the Company Stockholders Meeting if the Company has previously exercised the right to adjourn such meeting contained in clause (ii)(A) or clause (ii)(B) of the prior sentence. Except in the case of an Adverse Recommendation Change specifically permitted by Section 5.2(b), the Company, through the Company Board, shall (i) recommend to its stockholders that they adopt this Agreement and the transactions contemplated hereby and (ii) include such recommendation in the Proxy Statement. Without limiting the generality of the foregoing, the Company agrees that (x) except in the event of an Adverse Recommendation Change specifically permitted by Section 5.2(b), the Company shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements solicit proxies to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from obtain the Company Stockholder Approval and (y) its representatives obligations pursuant to this Section 5.3(b) shall not be affected by the SEC related commencement, public proposal, public disclosure or communication to the Company stockholders meeting (or any other Person of any Acquisition Proposal or the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review occurrence of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreementany Adverse Recommendation Change.

Preparation of Proxy Statement; Stockholders Meeting. As (a) In the event that Section 253 of the DGCL is unavailable and inapplicable to effectuate the Merger, as promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010Acceptance Time, the Company shall shall, with the assistance and approval (not to be unreasonably withheld, conditioned or delayed) of Parent, prepare and cause to be filed file with the SEC a the preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its commercially reasonable best efforts to finalize clear the preliminary Proxy Statement with the SEC as promptly as possible practicable after such filing. The Company shall cause the Proxy Statement to be mailed to the Company’s stockholders as promptly notify Phoenix upon as practicable after the receipt of any comments from Proxy Statement has been cleared with the SEC. No filing of, or amendment or supplement to, or correspondence to the SEC or any request from the SEC for amendments or supplements its staff with respect to the Proxy Statement will be made by the Company, without providing Parent and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the Merger Sub a reasonable opportunity to review and approve in its reasonable discretion the proxy statement comment thereon (and all amendments thereto and all correspondence from the Company shall give reasonable consideration to all additions, deletions, changes or other comments suggested by Parent, Merger Sub or their counsel). The Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments thereon and its representatives responses thereto or requests by the SEC for additional information. If at any time prior to the SEC related Effective Time any information relating to the Company stockholders meeting (or Parent, or any of their respective Affiliates, officers or directors, should be discovered by the “Stockholders Meeting”) prior Company or Parent that should be set forth in an amendment or supplement to filing the Proxy Statement, so that such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC. The Company shallSEC and, to the extent required by Law, disseminated to the stockholders of the Company. (b) In the event that Section 253 of the DGCL is unavailable and inapplicable to effectuate the Merger, as soon promptly as reasonably practicable following the date the SEC completes review clearance of the Proxy Statement or notifies by the SEC, the Company, acting through the Company that it will not review the Proxy StatementBoard, shall (i) take all action necessary to duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Stockholders Meeting a meeting of its stockholders for the purpose of seeking to obtain the Company stockholder approval and to solicit such approval from Stockholder Approval (the stockholders. In connection with the “Company Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a”) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The extent that the Company Board shall within one (1) Business Day of obtaining such stockholder approvals have effected an Adverse Recommendation Change in accordance with Section 6.3, (x) solicit the terms of this Agreement, Company Stockholder Approval and (y) include in the Exchange Agreement and Proxy Statement the Investor Rights Agreement, take all requisite actions (including the filing recommendation of the Charter Amendment, Company Board that the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State stockholders of the State Company vote in favor of Delaware) to effect approvals the adoption and consummate the transactions contemplated by approval of this Agreement and the other Transaction DocumentsMerger. Each of Parent and Merger Sub shall vote all Shares acquired in the Offer (and all Shares otherwise beneficially owned by them or any of their Affiliates as of the applicable record date) in favor of the adoption and approval of this Agreement and the Merger in accordance with applicable Law at the Company Stockholders Meeting. Parent shall vote, including or cause to be voted, all of the Exchange Agreementshares of capital stock of Merger Sub in favor of the adoption and approval of this Agreement and the Merger in accordance with applicable Law.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the approval of this Agreement by the Company's stockholders is required by Applicable Law, the Company shall, as reasonably soon as practicable following the date expiration of this Agreementthe Offer, but no later than June 25prepare in accordance with the rules and regulations of the SEC and file with the SEC the Proxy Statement in preliminary form, 2010and each of the Company and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. If at any time prior to receipt of Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and cause mail to be filed with the SEC a preliminary proxy statement to be sent to the its stockholders of the such an amendment or supplement. The Company relating to the Company’s stockholders meeting (together with shall not mail any amendments Proxy Statement, or supplements any amendment or supplement thereto, the “Proxy Statement”)to which Parent reasonably objects. The Company shall use its reasonable best efforts to finalize cause the Proxy Statement to be mailed to the Company's stockholders as promptly as possible practicable after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The . (b) If the approval of this Agreement by the Company's stockholders is required by Applicable Law, the Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies the Company that it will not review the Proxy StatementOffer, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Company Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholdersStockholder Approval. In connection with the Stockholders Meeting, the The Company shall, through the Company Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 this Agreement and (ii) its authorized shares of Preferred Stock to 16,000,000the Merger, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The extent that the Company Board shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms have withdrawn or modified its approval or recommendation of this Agreement, the Exchange Agreement and Offer or the Investor Rights AgreementMerger as permitted by Section 6.02(b). Notwithstanding the foregoing, if Sub or any other Subsidiary of Parent shall acquire at least 90% of the outstanding shares of Company Common Stock, the parties shall, at the request of Parent, take all requisite actions (including necessary and appropriate action to cause the filing Merger to become effective as soon as practicable after the expiration of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) Offer without a stockholders meeting in accordance with the Secretary of State Section 253 of the State DGCL. (c) Parent shall cause all shares of Delaware) Company Common Stock purchased pursuant to effect approvals the Offer and consummate all other shares of Company Common Stock owned by Sub or any other Subsidiary of Parent to be voted in favor of the transactions contemplated by approval of this Agreement and the other Transaction Documents, including the Exchange AgreementMerger.

Preparation of Proxy Statement; Stockholders Meeting. As (a) FORM S-4. Each of the Company and Purchaser shall cooperate and promptly prepare under the Securities Act, with respect to the shares of Purchaser Common Stock issuable in the 20 Merger, a portion of which Form S-4 shall also serve as the joint proxy statement with respect to the meetings of the stockholders of the Company and of Purchaser in connection with the Merger (in its entirety, the "Form S-4"). The respective parties will cause the Form S-4 to comply as to form in all material respects with the applicable provisions of the Securities Act, the Exchange Act, and the rules and regulations thereunder. Each of the Company and Purchaser shall furnish all information about itself and its business and operation and all necessary financial information to the other as the other may reasonably request in connection with the preparation of the Form S-4. Purchaser shall use its reasonable best efforts, and the Company will cooperate with the Purchaser, to have the Form S-4 declared effective by the SEC as promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company Purchaser shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements obtain, prior to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the effective date the SEC completes review of the Proxy Statement Form S-4, all necessary state securities law or notifies the Company that it will not review the Proxy Statement, duly call and give notice "blue sky" permits or approvals required to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate carry out the transactions contemplated by this Agreement and will pay all expenses incident thereto. Purchaser agrees that the other Transaction DocumentsForm S-4 and each amendment or supplement thereto at the time of mailing thereof and at the time of the respective meetings of stockholder of the Company and Purchaser, including will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein, in light of the Exchange Agreementcircumstances under with they were made, not misleading; provided, however, that the foregoing shall not apply to the extent that any such untrue statement of a material fact or omission to state a materiel fact was made by Purchaser in reliance upon and in conformity with information concerning the Company furnished to Purchaser by the Company for use in the Form S-4. The Company agrees that the information provided by it for inclusion in the Form S-4 and each amendment or supplement thereto, at the time of mailing thereof and at the time of the respective meetings of stockholders of the Company and Purchaser, will not include any untrue statement of a material fact or omit to state a materiel fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Purchaser will advise and deliver copies (if any) to the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Purchaser Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4 or comments thereon and responses thereto or requests by the SEC for additional information.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following (and in any event within twenty (20) Business Days) after the date of this Agreement, but no later than June 25, 2010hereof, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting in preliminary form (together with any amendments thereof or supplements theretothereto and any other required proxy materials, the “Proxy Statement”)) for a special meeting of the Company’s stockholders (including any adjournments and postponements thereof, the “Stockholder Meeting”) and file it with the SEC, and the Company and Parent shall cooperate with each other in connection with the preparation of the foregoing, including to collect from their respective Affiliates, as applicable, any necessary information for the preparation of the foregoing. The Company shall use its commercially reasonable best efforts to finalize have the Proxy Statement cleared by the SEC as promptly as possible practicable after such filingthe filing thereof, including using its commercially reasonable efforts to respond as promptly as reasonably practicable to any comments received from the SEC or its staff concerning the Proxy Statement. The Company shall notify the other parties hereto promptly notify Phoenix upon the receipt of any comments from the SEC or its staff or any other government officials and of any request from by the SEC or its staff or any other government officials for amendments or supplements to the Proxy Statement and shall provide Phoenix supply the others with copies of all correspondence between it and or any of its representativesRepresentatives, on the one hand, and the SEC, or its staff or any other government officials, on the other hand, with respect to the Proxy Statement. Phoenix Without limiting the generality of the foregoing, each of Parent and Merger Sub shall have cooperate with the Company, and shall collect from their Affiliates any necessary information, in connection with the preparation and filing of the Proxy Statement, including promptly furnishing to the Company in writing upon request any and all information relating to Parent, Merger Sub and their respective Affiliates as may be required to be set forth in the Proxy Statement under Applicable Law. Parent shall ensure that such information supplied by it and its Affiliates for inclusion in the Proxy Statement will not, on the date the Proxy Statement is first mailed to stockholders of the Company and at the time of the Stockholder meeting, contains any untrue statement of material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto), or responding to any comments of the SEC with respect thereto, the Company shall provide Parent and its counsel with a reasonable opportunity to review and approve comment on such document or response and shall consider Parent’s comments in its reasonable discretion good faith. The Company shall pay all filing fees required to be paid to the proxy statement and all amendments thereto and all correspondence from SEC in connection with the Proxy Statement. (b) The Company shall ensure that the Proxy Statement (i) will not, on the date it is first mailed to stockholders of the Company and its representatives at the time of the Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) will comply as to form in all material respects with the applicable requirements of the Exchange Act. Notwithstanding the foregoing, the Company assumes no responsibility with respect to information supplied by or on behalf of Parent or Merger Sub or their Affiliates in writing for inclusion or incorporation by reference in the Proxy Statement. If, prior to the Stockholder Meeting, the Company, Parent or Merger Sub discovers that information supplied by Parent and its Affiliates in writing for inclusion in the Proxy Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party hereto which discovers such information shall promptly notify the other parties hereto and the Company shall promptly prepare and file with the SEC related an appropriate amendment or supplement to the Company stockholders meeting Proxy Statement and, to the extent required by Applicable Law or the SEC or its staff, disseminate such amendment or supplement to the Company’s stockholders. (the “Stockholders Meeting”c) prior to filing with the SEC. The Company shall, as soon As promptly as reasonably practicable following the date the SEC completes review clearance of the Proxy Statement or notifies by the SEC (and in any event within ten Business Days after clearance by the SEC), the Company that it will not review shall duly set a record date for the Stockholder Meeting and cause the Proxy Statement, duly call Statement in definitive form and give notice of the Stockholder Meeting to be mailed to the Company’s stockholders. As promptly as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders, the Company stockholders by mailing shall in accordance with Applicable Law and the definitive Proxy StatementCompany’s governing documents, convene and hold the Stockholders Stockholder Meeting for the purpose of seeking Company stockholder approval considering and taking action upon the matters requiring Stockholder Approval; provided that notwithstanding anything else to solicit such approval from the stockholders. In connection with the Stockholders Meetingcontrary herein, the Company shall, through may postpone or adjourn the Board, recommend to its stockholders that they approve (a) an increase in Stockholder Meeting (i) its authorized shares with the consent of Common Stock to 519,000,000 and Parent, (ii) its authorized for the absence of a quorum necessary to conduct the business of the Stockholder Meeting, (iii) after consultation with Parent, to ensure that any necessary supplement or amendment to the Proxy Statement is provided to the holders of shares of Preferred Company Common Stock to 16,000,000within a reasonable amount of time in advance of the Stockholder Meeting, (biv) after consultation with Parent, to allow for additional time for the Amended and Restated Certificate solicitation of Designation proxies in order to obtain the Stockholder Approval, or (Series A-1v) and if the Company is required to postpone or adjourn the Company Meeting by applicable Law, provided, however, that the Company may not postpone the Stockholders Meeting for more than an aggregate of twenty Business Days without the prior written consent of Parent (c) elect four directors to the Boardwhich shall not be unreasonably withheld, conditioned or delayed). The Company shall within one consult with Parent to set the record date for the Stockholder Meeting and shall not change the record date or set a new record date for the Stockholder Meeting without consulting with Parent in good faith. Unless the Company Board or any committee thereof has made an Adverse Recommendation Change in compliance with Section 6.03, the Company shall (1x) Business Day make the Company Recommendation to the stockholders of obtaining the Company and include such stockholder approvals recommendation in the Proxy Statement, (y) use its commercially reasonable efforts to cause the definitive Proxy Statement to be mailed to the Company’s stockholders and to solicit from stockholders of the Company proxies in favor of the adoption of this Agreement and (z) take all other action necessary or advisable to secure the vote of the holders of shares of Company Common Stock required by Applicable Law to effect the Merger. In the event of an Adverse Recommendation Change, the Company shall continue to submit this Agreement to the stockholders of the Company for approval at the Stockholder Meeting unless this Agreement shall have been terminated in accordance with its terms prior to the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementStockholder Meeting.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, but (i) Acquirer will provide the Company with all information with respect to the Acquirer Group as is reasonably necessary or advisable for inclusion in the Proxy Statement, (ii) the Company shall prepare and, after obtaining the approval of Acquirer, which approval shall not be unreasonably withheld, delayed or conditioned, file with the SEC the Proxy Statement in preliminary form, and (iii) the Company and Acquirer shall prepare the Schedule 13E-3. Without limiting the foregoing, each of the Company and Acquirer will take all reasonable steps necessary or advisable to enable the Proxy Statement and the Schedule 13E-3 to be filed with the SEC no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders 2004. Each of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company and Acquirer shall use its commercially reasonable best efforts to finalize the Proxy Statement respond as promptly as possible after such filingpracticable to any comments of the SEC with respect thereto. The Each of the Company and Acquirer shall notify the other promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or the Schedule 13E-3 or for additional information and shall provide Phoenix supply the others with copies of all correspondence between it and or any of its representativesRepresentatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement or the Schedule 13E-3, as applicable. Phoenix shall have Absent any temporary restraining order, preliminary or permanent injunction or other order or decree issued by any court of competent jurisdiction or other legal restraint or prohibition or notification by the opportunity to SEC of the commencement of an SEC review and approve in its reasonable discretion of the proxy statement and all amendments thereto and all correspondence from preliminary Proxy Statement, the Company and its representatives to shall file with the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, definitive Proxy Statement as soon as reasonably practicable following the date filing of the preliminary Proxy Statement with the SEC completes review (but not earlier than the 10th calendar day following the filing of the preliminary Proxy Statement), and shall cause the mailing of the definitive Proxy Statement to the stockholders of the Company to occur as promptly as practicable thereafter. If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement or notifies the Company or Acquirer shall otherwise reasonably determine that it will not review any amendment or supplement should be made to the Proxy Statement in accordance with applicable Law, the Company shall as promptly as practicable prepare and mail to its stockholders such an amendment or supplement. Prior to responding to any comments of the SEC with respect to the Proxy Statement, duly call and give notice to the Company stockholders (i) shall provide Acquirer an opportunity to review and comment on such document or response, and (ii) shall consider in good faith for inclusion in such document or response all comments reasonably proposed by Acquirer. (b) The Company shall, as promptly as reasonably practicable after the date of this Agreement, establish a record date for and duly call, and as promptly as reasonably practicable after the mailing of the definitive Proxy StatementStatement pursuant to Section 6.01, give notice of, convene and hold a meeting of its stockholders (the “Company Stockholders Meeting for Meeting”) to obtain (i) the purpose of seeking Company stockholder Stockholder Approval and (ii) the approval and to solicit adoption of this Agreement and the approval of the Merger by the holders of the majority of shares of Company Common Stock present or represented by proxy at such meeting that is not held by any member of the Acquirer Group voting “for” and “against” such approval from (treating for this purpose holders who have delivered, prior to the stockholders. In connection Company obtaining the Company Stockholder Approval, written demands for appraisal in accordance with Section 262(d) of the Stockholders MeetingDGCL and who, as of such time, shall not have effectively withdrawn or otherwise forfeited appraisal rights as voting “no”) (such approval, the “Unaffiliated Stockholders Approval”). The Company shall, through the BoardCompany Board and in the Proxy Statement, recommend to its stockholders that they approve (agive each of the Company Stockholder Approval and the Unaffiliated Stockholders Approval, except to the extent that the Company Board shall have withdrawn or modified its recommendation of this Agreement or the Merger as permitted by Section 5.02(b). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(b) an increase in shall not be affected by (i) the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal or (ii) the withdrawal or modification by the Company Board of its authorized approval or recommendation of this Agreement or the Merger. (c) Acquirer shall cause all shares of Company Common Stock owned by Acquirer or any other member of the Acquirer Group to 519,000,000 be voted in favor of the approval and adoption of this Agreement and approval of the Merger. Unless the Company Board shall have made an Adverse Recommendation Change, the Company shall cause all shares which are voted at the direction of the Company Board or its members to be voted in favor of the adoption of this Agreement. (d) If the Company is unable to obtain a quorum of its stockholders at such time, (i) the Company may extend the date of the Company Stockholders Meeting by no more than 30 days and the Company shall use its commercially reasonable efforts during such 30-day period to obtain such a quorum as soon as practicable, and (ii) its authorized shares of Preferred Stock the Company may delay the Company Stockholders Meeting to 16,000,000, the extent (band only to the extent) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors Company determines in good faith that such delay is required by applicable law or to comply with written or verbal comments made by the SEC with respect to the BoardProxy Statement. The Company Such 30 day period shall within one (1) Business Day constitute the 30 day written notice period for purposes of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementSection 8.01(c)(i).

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following after the date of this AgreementAgreement (and, but no in any event, not later than June 25the fifteenth (15th) Business Day immediately thereafter, 2010provided there shall not exist a then-pending Acquisition Proposal), the Company shall (i) prepare (with the Parent’s reasonable cooperation to the extent required) and cause to be filed file with the SEC a preliminary proxy statement (as amended or supplemented from time to time, the “Proxy Statement”) to be sent to the stockholders of the Company relating to the special meeting of the Company’s stockholders meeting (together with any amendments or supplements theretothe “Company Stockholders Meeting”) to be held to consider, among other matters, the “adoption of this Agreement and (ii) set a record date for determining the stockholders entitled to notice of and to vote at the Company Stockholders Meeting and commence a broker search pursuant to Section 14a-13 of the Exchange Act in connection therewith. No filing or mailing of, or amendment or supplement to, the Proxy Statement”Statement will be made by the Company without providing the Parent a reasonable opportunity to review and comment thereon (and considering in good faith all comments reasonably proposed by the Parent). The Company will advise the Parent promptly after it receives any oral or written request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information, and will promptly provide the Parent with true, correct and complete copies of any written communication from the SEC or any state securities commission and a reasonable opportunity to participate in the responses thereto. The Company shall use its commercially reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt of respond to any requests or comments from the SEC or any request from as promptly as practicable and will provide the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the Parent a reasonable opportunity to review and approve comment thereon (and consider in its reasonable discretion good faith all comments reasonably proposed by the proxy statement and all amendments thereto and all correspondence from Parent in any such response). If, at any time prior to the Effective Time, any information should be discovered by the Company and its representatives or the Parent that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall promptly be filed by the Company with the SEC related and, to the Company extent required under applicable law, disseminated to stockholders meeting of the Company; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any party hereunder or otherwise affect the remedies available hereunder to any party. (the “Stockholders Meeting”b) prior to filing with the SEC. The Company shall, as soon As promptly as reasonably practicable following the date Company’s receipt of notice from the SEC completes that the SEC has completed its review of the Proxy Statement or notifies (or, if the SEC does not inform the Company that it will not intends to review the Proxy StatementStatement on or before the 15th calendar day following the filing of the preliminary Proxy Statement pursuant to Rule 14a-6 under the Exchange Act, as promptly as reasonably practicable following such 15th calendar day), the Company, acting through the Company Board, shall duly call and call, give notice of, cause the Proxy Statement to the Company stockholders by mailing the definitive Proxy Statementbe disseminated to its stockholders, convene and hold the Company Stockholders Meeting for the purpose of seeking obtaining the Company stockholder approval and Stockholder Approval and, if applicable, the advisory vote required by Rule 14a-21(c) under the Exchange Act in connection therewith; provided, however, that the Company Board shall be permitted to solicit such approval from adjourn, delay or postpone the stockholders. In connection Company Stockholders Meeting in accordance with applicable law (but not beyond the Outside Date) (i) with the written consent of the Parent, (ii) if the Company Board has determined in good faith after consultation with outside counsel that the failure to so adjourn, delay or postpone the Company Stockholders Meeting would reasonably be expected to be inconsistent with its fiduciary duties under applicable law, (iii) to the extent necessary to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside counsel is reasonably likely to be necessary or appropriate under applicable law and for such supplemental or amended disclosure to be disseminated and reviewed by the Company’s stockholders prior to the Company Stockholders Meeting or (iv) if there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholders Meeting; provided, that nothing in the foregoing clauses (iii) or (iv) shall permit any postponement or adjournment of the Company Stockholders Meeting to a date on or after the date that is ten (10) Business Days prior to the Termination Date. Except to the extent that the Company Board shall have effected a Company Board Recommendation Change in accordance with Section 6.1(b), the Company shallCompany, through the Company Board, shall (A) recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 adopt this Agreement and (iiB) its authorized shares of Preferred Stock to 16,000,000, (b) include such recommendation in the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the BoardProxy Statement. The Company shall within one (1) Business Day of obtaining such stockholder approvals Unless this Agreement is validly terminated in accordance with Section 8.1 and, to the extent required under the terms of this Agreement, the Exchange Agreement and Company pays to the Investor Rights Agreement, take all requisite actions (including Parent the filing of the Charter AmendmentTermination Fee in accordance with Section 8.3, the Certificate Company’s obligation to duly call, give notice of, cause the Proxy Statement to be disseminated to its stockholders and convene and hold the Company Stockholders Meeting pursuant to this Section 6.13 shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any of Designation (Series B) and the Amended and Restated Certificate its Representatives of Designation (Series A-1) with the Secretary of State of the State of Delaware) any Acquisition Proposal. Subject to effect approvals and consummate the transactions contemplated by this Agreement Section 6.1 and the other Transaction Documentsterms of this Agreement, including the Company shall take all action that is both reasonable and lawful to solicit from its stockholders proxies in favor of the adoption and approval of this Agreement and, if applicable, the advisory vote required by Rule 14a-21(c) under the Exchange AgreementAct in connection therewith.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following the date after execution of this Agreement, but no later than June 25, 2010, the Company USAi shall prepare and cause to be filed file with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company , in form and substance reasonably satisfactory to Universal, and shall use its reasonable best efforts to finalize the Proxy Statement respond, after consultation with Universal, as promptly as possible after such filingpracticable to any comments of the SEC with respect thereto. The Company USAi shall notify Universal promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement and or for additional information. USAi shall provide Phoenix supply Universal with copies of all correspondence between it and or its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix Universal shall have cooperate with USAi in providing any information or responses to comments, or other assistance, reasonably requested in connection with the opportunity foregoing. If at any time prior to review receipt of the USAi Stockholder Approvals there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, USAi shall promptly prepare and approve in mail to its stockholders such an amendment or supplement. USAi shall use its reasonable discretion best efforts to cause the proxy statement and all amendments thereto and all correspondence from the Company and Proxy Statement to be mailed to its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review Proxy Statement shall comply in all material respects with all applicable requirements of law. None of the Proxy Statement information supplied or notifies to be supplied by Vivendi, USAi or their respective Affiliates for inclusion or incorporation by reference in the Company that it proxy statement will contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not review the Proxy Statementmisleading. (b) USAi shall duly call, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the "USAi Stockholders Meeting Meeting") for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholdersUSAi Stockholder Approvals as soon as practicable after the filing of the definitive Proxy Statement. In connection with the Stockholders Meeting, the Company USAi shall, through the USAi Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000give the USAi Stockholder Approvals, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The Company extent that the USAi Board shall within one (1) Business Day have withdrawn or modified its recommendation to USAi's stockholders of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the Transactions as permitted by Section 4.09. USAi agrees that its obligations pursuant to this Section 4.10 shall not be affected by the withdrawal or modification by the USAi Board or any committee thereof of such Board's or such committee's recommendation to USAi's stockholders of this Agreement or the Transactions. (c) Subject to clause (b) of this Section 4.10, each Parent Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Transaction DocumentsParent Party in doing, all things necessary, proper or advisable to obtain the USAi Stockholder Approvals. (d) At any meeting of the stockholders of USAi called to seek the USAi Stockholder Approvals or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to this Agreement or the Exchange AgreementTransactions is sought, such Parent Party or Diller, as applicable, shall vote (or cause to be voted) any USAi ▇▇▇▇▇▇ Stock over which such Parent Party or Diller, as applicable, has the power to vote in favor of granting ▇▇▇ ▇▇Ai Stockholder Approvals.

Preparation of Proxy Statement; Stockholders Meeting. As promptly as reasonably practicable following (a) If the date adoption of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to Agreement by the Company’s stockholders meeting (together with any amendments or supplements theretois required by Law, the “Company shall, at Parent’s and U.S. Parent’s request, as soon as practicable following the expiration of the Offer, prepare and file with the SEC the Proxy Statement”)Statement in preliminary form, and each of the Company, Parent and U.S. Parent shall use its reasonable efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent and U.S. Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent and U.S. Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix If at any time prior to receipt of the Company Stockholder Approval there shall have occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall provide Parent and U.S. Parent and their counsel a reasonable opportunity to review the Proxy Statement prior to its being filed with the SEC and approve in its shall provide Parent and U.S. Parent and their counsel a reasonable discretion opportunity to review all amendments and supplements to the proxy statement Proxy Statement and all amendments thereto and all correspondence from the Company and its representatives responses to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) requests for additional information prior to filing with their being filed with, or sent to, the SEC. The Company shall give reasonable and good faith consideration to any comments made by Parent, U.S. Parent or their counsel, recognizing that the ultimate form and content of the Proxy Statement, any amendments and supplements thereto, and any response to requests for additional information will be the responsibility of the Company. The Company shall use its reasonable efforts to cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as practicable after filing with the SEC. (b) If the adoption of this Agreement by the Company’s stockholders is required by Law, the Company shall, at Parent’s and U.S. Parent’s request, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies the Company that it will not review the Proxy StatementOffer, duly call and call, establish a record date for, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the “Company Stockholders Meeting Meeting”) for the purpose of seeking the Company stockholder approval and to solicit such approval from the stockholdersStockholder Approval. In connection with the Stockholders Meeting, the The Company shall, through the Company Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000give the Company Stockholder Approval, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The extent that the Company Board shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms have withdrawn or modified its approval or recommendation of this Agreement, the Exchange Agreement Offer or the Merger as permitted by Section 5.03(b). Notwithstanding the foregoing, if Merger Sub or any other subsidiary of Parent acquires at least 90% of the outstanding shares of the Company Common Stock, the parties shall, at the request of Parent and the Investor Rights AgreementU.S. Parent, take all requisite actions (including necessary and appropriate action to cause the filing Merger to become effective as soon as practicable after the expiration of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) Offer without a stockholders meeting in accordance with the Secretary of State Section 253 of the State DGCL. (c) Parent and U.S. Parent shall cause all shares of Delaware) Company Common Stock purchased pursuant to effect approvals the Offer and consummate all other shares of Company Common Stock owned by Parent, U.S. Parent, Merger Sub or any other subsidiary of Parent to be voted in favor of the transactions contemplated by adoption of this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) Unless Parent and Merger Sub own 90% or more of the outstanding Shares (determined on a fully diluted basis) after purchasing Shares in the Offer, then as reasonably soon as practicable following the date of this Agreement, but no later than June 25, 2010, after such purchase the Company shall prepare in accordance with the rules and cause to be filed regulations of the SEC and file with the SEC a preliminary proxy statement to be sent to of the Company (the “Proxy Statement”) in preliminary form soliciting proxies from the holders of Shares for the adoption of this Agreement for use at a special meeting of the stockholders of the Company relating to be called by the Company’s stockholders meeting Company for the purpose of obtaining the Company Requisite Vote (together the “Company Stockholders Meeting”). Each of the Company and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company and Parent shall cooperate with one another in connection with the preparation of the Proxy Statement. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. If at any time prior to receipt of Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects, unless the “Proxy Statement”)Company is advised by outside counsel that it is required to do so by applicable Law. The Company shall use its reasonable best efforts to finalize cause the Proxy Statement to be mailed to the Company’s stockholders as promptly as possible practicable after such filing. The Company shall promptly notify Phoenix upon filing the receipt of any comments Proxy Statement with the SEC and receiving clearance from the SEC with respect to such Proxy Statement. (b) Unless Parent and Merger Sub own 90% or any request from more of the SEC for amendments or supplements to outstanding Shares (determined on a fully diluted basis) after purchasing Shares in the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representativesOffer, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, then as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies after such purchase the Company that it will not review the Proxy Statementshall duly call, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Company Stockholders Meeting for the purpose of seeking obtaining the Company stockholder approval and to solicit such approval from the stockholdersRequisite Vote. In connection with the Stockholders Meeting, the The Company shall, through the Company Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 this Agreement and (ii) its authorized shares of Preferred Stock to 16,000,000the Merger, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The extent that the Company Board shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms have withdrawn or modified its approval or recommendation of this Agreement, the Exchange Agreement and Offer or the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated Merger as permitted by this Agreement and the other Transaction Documents, including the Exchange AgreementSection 6.3.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following the date of this Agreement, but in no event later than June 25, 2010forty-five (45) days after the date hereof, the Company shall prepare and cause to be filed file with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The , and the Company shall use its all commercially reasonable best efforts to finalize respond as promptly as practicable to any comments of the SEC with respect thereto and to cause the Proxy Statement to be mailed to the Company Stockholders as promptly as possible after such filingpracticable following the date of this Agreement. The Company shall promptly notify Phoenix Parent upon the receipt of any comments from the SEC or the staff of the SEC or any request from the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix Parent with copies of all correspondence between it the Company and its representativesRepresentatives, on the one hand, and the SEC and the staff of the SEC, on the other hand, relating to the Proxy Statement. Phoenix Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement or responding to any comments of the SEC or the staff of the SEC with respect thereto, the Company (i) shall have the provide Parent a reasonable opportunity to review and approve comment on such document or response and (ii) shall include in its reasonable discretion such document or response all comments reasonably proposed by Parent. Whenever any event occurs which is required to be set forth in an amendment or supplement to the proxy statement and all amendments thereto and all correspondence from Proxy Statement, the Company or Parent, as the case may be, will promptly inform the other of such occurrence and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to cooperate in filing with the SEC. SEC and/or mailing to Company Stockholders such amendment or supplement. (b) The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statementthis Agreement, establish a record date for, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and Stockholders’ Meeting. Subject to solicit such approval from the stockholders. In connection with the Stockholders MeetingSection 5.02, the Company shall, through the Company Board, recommend that the Company Stockholders vote in favor of the adoption of this Agreement and shall include such recommendation in the Proxy Statement. Subject to its stockholders that they approve (a) an increase Section 5.02, the Company will use all reasonable efforts to solicit from Company Stockholders proxies in (i) its authorized shares favor of Common Stock to 519,000,000 and (ii) its authorized shares the adoption of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors this Agreement. Notwithstanding anything to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals contrary contained in accordance with the terms of this Agreement, the Exchange Company may adjourn or postpone the Stockholders’ Meeting to the extent necessary to ensure that any necessary supplement or amendment to the Proxy Statement is provided to Company Stockholders in advance of a vote on the adoption of this Agreement and the Investor Rights Agreementor, take all requisite actions (including the filing if as of the Charter Amendment, time for which the Certificate Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Designation Company Common Stock represented (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delawareeither in person or by proxy) to effect approvals constitute a quorum necessary to conduct the business of such Stockholders’ Meeting; provided, however, that any Stockholders’ Meeting so adjourned or postponed shall be held as promptly as permitted by the Charter Documents and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreementapplicable Law.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, (but in no event later than June 25, 2010seven (7) days after the Offer is commenced), the Company shall prepare and cause to be filed file with the SEC a preliminary proxy statement to be sent to the stockholders Proxy Statement. Each of the Company relating and Parent shall furnish all information concerning such Person to the Company’s stockholders meeting (together other as may be reasonably requested in connection with any amendments or supplements theretothe preparation, filing and distribution of the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix Parent upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix Parent with copies of all correspondence between it and its representativesRepresentatives, on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement. Phoenix Each of the Company and Parent shall have use reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and approve comment on such document or response (including the proposed final version of such document or response or any amendment to any such document) and (ii) shall include in its reasonable discretion the proxy statement and such document or response all amendments thereto and all correspondence from the Company and its representatives to the SEC related comments reasonably proposed by Parent. If, at any time prior to the Company stockholders meeting (Stockholders’ Meeting, any information relating to the “Stockholders Meeting”) prior Company, Parent or any of their respective Affiliates, officers or directors should be discovered by the Company or Parent which should be set forth in an amendment or supplement to filing the Proxy Statement, so that the Proxy Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties hereto, and an appropriate amendment or supplement describing such information shall be filed with the SEC. The Company shallSEC and, as to the extent required by applicable Law or reasonably requested by the other party, and disseminated to the shareholders of the Company. (b) As soon as reasonably practicable following prior to, but in no event later than five (5) Business Days after, the date on which the SEC completes review preliminary Proxy Statement is filed with the SEC, the Company shall establish a record date (which will be one (1) Business Day after the anticipated Expiration Date of the Proxy Statement or notifies Offer), and as soon as practicable after the Company that it will not review closing of the Proxy StatementOffer, duly call and give notice to of a meeting of its shareholders (the “Company stockholders by mailing Stockholders’ Meeting”) and cause the definitive Proxy StatementStatement to be mailed to the Stockholders as promptly as reasonably practicable, each for the purpose of obtaining the Company Stockholder Approval. The Company shall duly convene and hold the Company Stockholders’ Meeting as promptly as reasonably practicable after the mailing of the Proxy Statement; provided, however, that in no event shall such meeting be held later than fifteen (15) calendar days following the date that the Offer is closed. The notice of such Company Stockholders’ Meeting shall state that a resolution to approve this Agreement will be considered at the Company Stockholders’ Meeting. The Company Board shall recommend to the Stockholders that they approve this Agreement, and shall include such recommendation in the Proxy Statement. Parent may require the Company to, and if so required the Company shall, adjourn or postpone the Company Stockholders’ Meeting one time (for a period of not more than thirty (30) calendar days but not past two (2) Business Days prior to the Expiration Date), unless prior to such adjournment the Company shall have received an aggregate number of proxies voting for the purpose adoption of seeking this Agreement and the transactions contemplated hereby (including the Merger), which have not been withdrawn, such that the conditions in Section 7.1 will be satisfied at such meeting. Once the Company stockholder approval and to solicit such approval from has established a record date for the stockholders. In connection with the Stockholders Company Stockholders’ Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent, unless required to do so by applicable Law or the Company Bylaws. Unless the Company Board shall have effected an Adverse Recommendation Change in accordance with Section 6.2(e), the Company shall use reasonable best efforts to solicit proxies in favor of the adoption of this Agreement and shall ensure that all proxies solicited in connection with the Company Stockholders’ Meeting are solicited in compliance with all applicable Laws. Unless this Agreement is validly terminated in accordance with Article VIII, the Company shall submit this Agreement to its shareholders at the Company Stockholders’ Meeting even if the Company Board shall have effected an Adverse Recommendation Change or proposed or announced any intention to do so. The Company shall, through upon the Boardreasonable request of Parent, recommend advise Parent not more than on a daily basis on each of the last ten (10) Business Days prior to its stockholders that they approve the date of the Company Stockholders’ Meeting as to the aggregate tally of proxies received by the Company with respect to the Company Stockholder Approval. At the Company Stockholders’ Meeting, if any, Parent agrees to cause all Shares acquired pursuant to the Offer and all other Shares owned by Parent or any Subsidiary of Parent to be voted in favor of the Merger. (c) Notwithstanding the foregoing clauses (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares b), if following the expiration of Preferred Stock to 16,000,000the Offer or the exercise of the Top-Up Option, (b) Parent, Merger Sub or any other direct or indirect Subsidiary of Parent shall collectively hold at least 90% of the Amended outstanding Shares, each of Parent, Merger Sub and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1subject to Section 7.1) Business Day take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the consummation of obtaining such stockholder approvals the purchase of the Shares without a meeting of Stockholders of the Company, in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing Section 1110 of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementCGCL.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, but no later than June 25▇▇▇▇ shall, 2010with the assistance of ITOCHU, prepare the Company shall prepare Proxy Statement and cause file the Proxy Statement with the SEC. ▇▇▇▇ and ITOCHU will cooperate with each other in the preparation of the Proxy Statement, including by providing drafts thereof. Without limiting the generality of the foregoing, ITOCHU will furnish to ▇▇▇▇ the information relating to it required by the Exchange Act to be filed with set forth in the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company ▇▇▇▇ shall use its commercially reasonable best efforts to finalize resolve all SEC comments with respect to the Proxy Statement as promptly as possible practicable after such filingreceipt thereof. The Company Each of ▇▇▇▇ and ITOCHU agree to correct any information provided by it for use in the Proxy Statement which shall promptly have become false or misleading. ▇▇▇▇ shall, as soon as reasonably practicable, notify Phoenix upon ITOCHU of the receipt of any comments from the SEC or any request from the SEC for amendments or supplements with respect to the Proxy Statement and shall any request by the SEC for any amendment to the Proxy Statement or for additional information and, in each case, provide Phoenix ITOCHU with copies thereof and drafts of all correspondence between it and its representatives, on any amendments to the one hand, and Proxy Statement to be filed in response thereto. (b) As promptly as reasonably practicable following the clearance of the Proxy Statement by the SEC, on ▇▇▇▇, acting through its board of directors, shall (i) take all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders for the other hand. Phoenix shall have purpose of obtaining the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting Stockholder Approval (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares include in the Proxy Statement the recommendation of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate ▇▇▇▇ board of Designation (Series A-1) and (c) elect four directors to that the Board. The Company shall within one (1) Business Day ▇▇▇▇ stockholders vote in favor of obtaining such stockholder approvals in accordance with the terms approval of this Agreement; provided, however, that ▇▇▇▇ shall be permitted to delay or postpone convening the Exchange Agreement and Stockholders Meeting (but not beyond the Investor Rights Agreement, take all requisite actions (including Termination Date) if in the filing good faith judgment of the Charter Amendment, ▇▇▇▇ board of directors or any committee thereof (after consultation with outside legal counsel) any failure to delay or postpone would be inconsistent with its fiduciary duties under applicable law or necessary to obtain the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementStockholder Approval.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, (i) the Company shall prepare and cause to after obtaining the approval of Parent, which approval shall not be filed unreasonably withheld, delayed or conditioned, file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to form, and (ii) each of the stockholders Company, Parent and Sub shall prepare and file with the SEC the Schedule 13E-3, and each of the Company relating and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. Each of the Company’s stockholders meeting (together with , Parent and Sub shall notify the others promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or the Schedule 13E-3 or for additional information and shall supply the others with copies of all correspondence between it or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement or the Schedule 13E-3, as applicable. If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement or the Company or Parent shall otherwise determine that any amendment or supplement should be made to the Proxy Statement in accordance with applicable Law, the Company shall as promptly as practicable prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, the “Proxy Statement”)to which Parent reasonably objects. The Company shall use its reasonable best efforts to finalize cause the Proxy Statement to be mailed to the Company's stockholders as promptly as possible practicable after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. (b) The Company shall, as promptly as practicable following the date of this Agreement, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting") to obtain (i) the Company Stockholder Approval and (ii) the approval of this Agreement and the Merger by the holders of the majority of shares of Company Common Stock present or represented by proxy at such meeting that is not held by Disqualified Holders (as defined below) voting "for" and "against" such approval (treating for this purpose holders who have delivered, prior to the Company obtaining the Company Stockholder Approval, written demands for appraisal in accordance with Section 262(d) of the DGCL and who, as of such time, shall not have effectively withdrawn or otherwise forfeited appraisal rights as voting "no") (such approval, the "Unaffiliated Stockholders Approval"). "Disqualified Holders" means Parent and its affiliates. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies through the Company that it will not review Board and in the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (agive each of the Company Stockholder Approval and the Unaffiliated Stockholders Approval, except to the extent that the Company Board shall have withdrawn or modified its recommendation of this Agreement or the Merger as permitted by Section 5.02(b). Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(b) an increase in shall not be affected by (i) its authorized shares the commencement, public proposal, public disclosure or communication to the Company of Common Stock to 519,000,000 and any Company Takeover Proposal or (ii) the withdrawal or modification by the Company Board of its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms approval or recommendation of this Agreement, Agreement or the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementMerger.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following after the date of this Agreement, but no later than June 25, 2010, (i) Parent and the Company shall use their respective reasonable best efforts to prepare and cause to be filed with the SEC a preliminary mutually acceptable proxy statement (as amended or supplemented from time to time, the “Proxy Statement”) to be sent to the stockholders of the Company relating to the Company’s special meeting of such stockholders meeting (together with including any amendments postponement or supplements theretoadjournment thereof, the “Company Stockholders Meeting”) to be held to consider the adoption of this Agreement; and (ii) the Company, in consultation with Parent, shall set a preliminary record date for the Company Stockholders Meeting and commence a broker search pursuant to Section 14a‑13 of the Exchange Act in connection therewith. As promptly as practicable following the date of this Agreement, Parent shall prepare (with the Company’s reasonable cooperation) and file with the SEC a registration statement on Form S‑4 (as amended or supplemented from time to time, the “Form S‑4”), in which the Proxy Statement will be included as a prospectus, in connection with the registration under the Securities Act of the Parent Common Stock to be issued in the First Company Merger. The Company and Parent shall each use their respective reasonable best efforts to provide all information related to themselves and their respective Subsidiaries and stockholders as may be required or reasonably requested by the other Party or as requested by the staff of the SEC to be included in the Form S-4 and Proxy Statement”). The , to cause the Form S-4 and Proxy Statement to comply with the rules and regulations promulgated by the SEC and to respond promptly to any comments of the SEC or its staff. (b) Each of Parent and the Company shall use its reasonable best efforts to finalize have the Proxy Statement Form S‑4 declared effective under the Securities Act as promptly as possible practicable after such filingfiling and to keep the Form S‑4 effective as long as is necessary to consummate the First Company Merger and the other transactions contemplated hereby. The Company shall cause the Proxy Statement to be mailed to its stockholders as promptly notify Phoenix upon as practicable after the receipt Form S‑4 is declared effective under the Securities Act. Except in the case of filing, amendment or supplement of the Proxy Statement in connection with an Adverse Recommendation Change or any dispute between the parties regarding this Agreement, the Mergers or the other transactions contemplated hereby, no filing of, or amendment or supplement to, the Form S‑4 or the Proxy Statement, or any response to comments from or other communication to the SEC with respect to the Form S-4 or the Proxy Statement, will be made by Parent or the Company, as applicable, without providing the other Party a reasonable opportunity to review and comment thereon and without the others’ prior written approval (which shall not be unreasonably withheld, delayed or conditioned). Parent shall consider in good faith for inclusion in the Form S-4 and in all correspondence to and filings with the SEC relating to the Mergers all comments reasonably proposed by the Company. Each of Parent and the Company will advise the other Party promptly after it receives oral or written notice thereof, of the time when the Form S‑4 has become effective or any amendment or supplement thereto has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in connection with the First Company Merger for offering or sale in any jurisdiction or any oral or written request by the SEC for amendment of the Proxy Statement or the Form S‑4 or comments thereon and responses thereto or requests by the SEC for additional information, and will promptly provide the others with copies of any written communication from the SEC or any request from state securities commission and a reasonable opportunity to participate in the SEC for amendments or supplements responses thereto. If, at any time prior to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representativesEffective Time, on any information relating to the one handMergers, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives or Parent, or any of their respective Affiliates, officers or directors, should be discovered by the Company or Parent that should be set forth in an amendment or supplement to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement Form S‑4 or notifies the Company that it will not review the Proxy Statement, so that any of such documents would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party that discovers such information shall promptly notify the other Parties and an appropriate amendment or supplement describing such information shall promptly be filed with the SEC and, to the extent required under applicable Law, disseminated to the stockholders of the Company; provided that the delivery of such notice and the filing of any such amendment or supplement shall not affect or be deemed to modify any representation or warranty made by any Party or otherwise affect the remedies available hereunder to any Party. (c) As promptly as practicable after the Form S-4 is declared effective under the Securities Act, the Company shall, subject to Section 5.2, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Company Stockholders Meeting solely for the purpose of seeking obtaining the Company stockholder approval and Stockholder Approval and, if applicable, the advisory vote required by Rule 14a 21(c) under the Exchange Act in connection therewith. Such Company Stockholders Meeting shall in any event be no later than 45 calendar days after the date on which the SEC declares the Form S-4 effective. The Company may postpone or adjourn the Company Stockholders Meeting from time to time solely (i) with the consent of Parent (not to be unreasonably withheld, conditioned or delayed); (ii) (1) due to the absence of a quorum or (2) if the Company has not received proxies representing a sufficient number of Shares for the Company Stockholder Approval, whether or not a quorum is present, to solicit additional proxies; or (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Company Board has determined in good faith after consultation with outside legal counsel is necessary under applicable Law and for such approval from supplemental or amended disclosure to be disseminated and reviewed by the stockholders. In connection with Company’s stockholders prior to the Company Stockholders Meeting; provided, that the Company may not postpone or adjourn the Company Stockholders Meeting more than a total of two times pursuant to clause (ii)(1) and/or clause (ii)(2) of this Section 5.3(c). Notwithstanding the foregoing, the Company shall, at the request of Parent, to the extent permitted by Law, adjourn the Company Stockholders Meeting to a date specified by Parent for the absence of a quorum or if the Company has not received proxies representing a sufficient number of Shares for the Company Stockholder Approval; provided that the Company shall not be required to adjourn the Company Stockholders Meeting more than one time pursuant to this sentence, and no such adjournment pursuant to this sentence shall be required to be for a period exceeding 10 Business Days. Except in the case of an Adverse Recommendation Change specifically permitted by Section 5.2(b), the Company, through the Company Board, shall (i) recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 adopt this Agreement and the transactions contemplated hereby and (ii) its authorized shares include such recommendation in the Proxy Statement. Without limiting the generality of Preferred Stock to 16,000,000the foregoing, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one agrees that (1) Business Day except in the event of obtaining such stockholder approvals in accordance with an Adverse Recommendation Change specifically permitted by Section 5.2(b), the terms Company shall use its reasonable best efforts to solicit proxies to obtain the Company Stockholder Approval and (2) its obligations pursuant to this Section 5.3(c) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other Person of any Acquisition Proposal or the occurrence of any Adverse Recommendation Change. Immediately after the execution of this Agreement, Parent shall duly adopt this Agreement in its capacity as the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing sole stockholder of Merger Sub Inc. by written consent in accordance with Section 228 of the Charter AmendmentDGCL and deliver to the Company evidence of its action by written consent so adopting this Agreement. If the Company shall have delivered a notice to Parent as contemplated by Section 5.2(b), the Certificate Company may adjourn (or postpone) the Company Stockholders Meeting to a date no later than five Business Days after the expiration of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreementsuch notice period.

Preparation of Proxy Statement; Stockholders Meeting. As promptly as reasonably practicable Promptly following the date of this Agreement, but and no later less than June 25, 2010fourteen (14) days thereafter, the Company shall prepare and cause to be filed file with the SEC a preliminary the proxy statement to be sent to the stockholders of Company Stockholders in connection with the Company relating to the Company’s stockholders meeting Merger Special Meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize ensure that, at the time the Proxy Statement is filed with the SEC or mailed to the Company Stockholders or at the time of the Merger Special Meeting, or at the time of any amendment or supplement thereof, the information (except for information furnished to the Company by or on behalf of Parent) contained in the Proxy Statement shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Parent shall ensure that, at the time the Proxy Statement is filed with the SEC or mailed to the Company Stockholders or at the time of the Merger Special Meeting, or at the time of any amendment or supplement thereof, the information contained in the Proxy Statement and furnished to the Company by or on behalf of the Parent (as promptly as possible after such filingindicated to the Company in writing) shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Company shall advise Parent, promptly notify Phoenix upon the receipt after it receives notice thereof, of any request by the SEC for the amendment of the Proxy Statement or comments from thereon or responses thereto or requests by the SEC for additional information. No filing of, or amendment or supplement to, or correspondence to the SEC or any request from the SEC for amendments or supplements its staff with respect to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on be made by the one hand, and the SEC, on the other hand. Phoenix shall have the Company without providing Parent a reasonable opportunity to review and approve in its reasonable discretion comment on the proxy statement and all amendments thereto and all correspondence from the Company and its representatives parts thereof relating to the SEC related transactions contemplated hereby. The Company shall cause the Proxy Statement to be mailed to the Company stockholders meeting (the “Stockholders Meeting”) prior as soon as practicable subsequent to its filing with the SEC. The Company shall, as soon as reasonably practicable following If at any time prior to the date the SEC completes review of the Proxy Statement or notifies Merger Special Meeting any information relating to the Company that it will not review or Parent, or any of their respective Affiliates, officers or directors should be discovered by the Company or Parent which should be set forth in an amendment or supplement to the Proxy Statement, duly call so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Party which discovers such information shall promptly notify the other Party hereto and give notice an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementStockholders.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, the Company Valero and Premcor shall prepare cooperate in preparing and each shall cause to be filed with the SEC mutually acceptable proxy materials that shall constitute the Proxy Statement/Prospectus and Valero shall prepare and file with the SEC the Form S-4. The Proxy Statement/Prospectus will be included as a preliminary proxy statement prospectus in and will constitute a part of the Form S-4 as Valero’s prospectus. Each of Valero and Premcor shall use reasonable best efforts to have the Proxy Statement/Prospectus cleared by the SEC and the Form S-4 declared effective by the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the transactions contemplated hereby. Valero and Premcor shall, as promptly as practicable after receipt thereof, provide each other with copies of any written comments, and advise each other of any oral comments, with respect to the Proxy Statement/Prospectus or Form S-4 received from the SEC. The parties shall cooperate and provide the other party with a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement/Prospectus and the Form S-4 prior to filing such with the SEC and will provide each other with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Proxy Statement/Prospectus or the Form S-4 shall be made without the approval of both Valero and Premcor, which approval shall not be unreasonably withheld or delayed; provided that, with respect to documents filed by a party that are incorporated by reference in the Form S-4 or Proxy Statement/Prospectus, this right of approval shall apply only with respect to information relating to the transactions contemplated hereby or to the other party or its business, financial condition or results of operations. Premcor will use reasonable best efforts to cause the Proxy Statement/Prospectus to be sent mailed to Premcor stockholders as promptly as practicable after the Form S-4 is declared effective under the Securities Act. Each party will advise the other party, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Valero Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Proxy Statement/Prospectus or the Form S-4. If, at any time prior to the Effective Time, any information relating to Valero or Premcor, or any of their respective Affiliates, officers or directors, is discovered by Valero or Premcor and such information should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement/Prospectus so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party discovering such information shall promptly notify the other party and, to the extent required by law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of Premcor. (b) Premcor shall duly call and give notice of the Company relating to Premcor Stockholders Meeting for the Company’s stockholders meeting (together with any amendments or supplements theretopurpose of obtaining the Premcor Stockholder Approval and such other matters as the Board of Directors of Premcor may direct, the “Proxy Statement”). The Company and shall use its reasonable best efforts to finalize cause the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements Premcor Stockholders Meeting to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, occur as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Boardpracticable. The Company Board of Directors of Premcor shall within one (1) Business Day of obtaining such stockholder approvals in accordance with use its reasonable best efforts to obtain the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementPremcor Stockholder Approval.

Preparation of Proxy Statement; Stockholders Meeting. As promptly as reasonably practicable following the date of this Agreement(a) The parties acknowledge that on April 12, but no later than June 25, 20102011, the Company shall prepare prepared and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders Proxy Statement. Each of the Company relating and Parent shall furnish all information concerning such Person to the Company’s stockholders meeting (together other as may be reasonably requested in connection with any amendments or supplements theretothe preparation, filing and distribution of the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix Parent upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix Parent with copies of all correspondence between it and its representativesRepresentatives, on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement. Phoenix Each of the Company and Parent shall have use reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect to the Proxy Statement. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company (i) shall provide Parent an opportunity to review and approve comment on such document or response (including the proposed final version of such document or response or any amendment to any such document) and (ii) shall include in its reasonable discretion the proxy statement and such document or response all amendments thereto and all correspondence from the Company and its representatives to the SEC related comments reasonably proposed by Parent. If, at any time prior to the Company stockholders meeting (Stockholders’ Meeting, any information relating to the “Stockholders Meeting”) prior Company, Parent or any of their respective Affiliates, officers or directors should be discovered by the Company or Parent which should be set forth in an amendment or supplement to filing the Proxy Statement, so that the Proxy Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party that discovers such information shall promptly notify the other parties hereto, and an appropriate amendment or supplement describing such information shall be filed with the SEC. The Company shallSEC and, as to the extent required by applicable Law or reasonably requested by the other party, and disseminated to the shareholders of the Company. (b) As soon as reasonably practicable following prior to, but in no event later than five (5) Business Days after, the date on which the SEC completes review preliminary Proxy Statement is filed with the SEC, the Company shall establish a record date (which will be one (1) Business Day after the anticipated Expiration Date of the Proxy Statement or notifies Offer), and as soon as practicable after the Company that it will not review closing of the Proxy StatementOffer, duly call and give notice to of a meeting of its shareholders (the “Company stockholders by mailing Stockholders’ Meeting”) and cause the definitive Proxy StatementStatement to be mailed to the Stockholders as promptly as reasonably practicable, each for the purpose of obtaining the Company Stockholder Approval. The Company shall duly convene and hold the Company Stockholders’ Meeting as promptly as reasonably practicable after the mailing of the Proxy Statement; provided, however, that in no event shall such meeting be held later than fifteen (15) calendar days following the date that the Offer is closed. The notice of such Company Stockholders’ Meeting shall state that a resolution to approve this Agreement will be considered at the Company Stockholders’ Meeting. The Company Board shall recommend to the Stockholders that they approve this Agreement, and shall include such recommendation in the Proxy Statement. Parent may require the Company to, and if so required the Company shall, adjourn or postpone the Company Stockholders’ Meeting one time (for a period of not more than thirty (30) calendar days but not past two (2) Business Days prior to the Expiration Date), unless prior to such adjournment the Company shall have received an aggregate number of proxies voting for the purpose adoption of seeking this Agreement and the transactions contemplated hereby (including the Merger), which have not been withdrawn, such that the conditions in Section 7.1 will be satisfied at such meeting. Once the Company stockholder approval and to solicit such approval from has established a record date for the stockholders. In connection with the Stockholders Company Stockholders’ Meeting, the Company shallshall not change such record date or establish a different record date for the Company Stockholders’ Meeting without the prior written consent of Parent, through unless required to do so by applicable Law or the BoardCompany Bylaws. Unless the Company Board shall have effected an Adverse Recommendation Change in accordance with Section 6.2(e), recommend the Company shall use reasonable best efforts to solicit proxies in favor of the adoption of this Agreement and shall ensure that all proxies solicited in connection with the Company Stockholders’ Meeting are solicited in compliance with all applicable Laws. Unless this Agreement is validly terminated in accordance with Article VIII, the Company shall submit this Agreement to its stockholders that they approve (a) shareholders at the Company Stockholders’ Meeting even if the Company Board shall have effected an increase in (i) its authorized shares of Common Stock Adverse Recommendation Change or proposed or announced any intention to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Boarddo so. The Company shall within one shall, upon the reasonable request of Parent, advise Parent not more than on a daily basis on each of the last ten (110) Business Day of obtaining such stockholder approvals in accordance with Days prior to the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing date of the Charter AmendmentCompany Stockholders’ Meeting as to the aggregate tally of proxies received by the Company with respect to the Company Stockholder Approval. At the Company Stockholders’ Meeting, if any, Parent agrees to cause all Shares acquired pursuant to the Certificate Offer and all other Shares owned by Parent or any Subsidiary of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State Parent to be voted in favor of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementMerger.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) The Company shall, as reasonably soon as practicable following the date expiration of this Agreementthe Offer, but no later than June 25, 2010, the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to the stockholders form, and each of the Company relating Company, Parent and Sub shall use their best efforts to respond as promptly as practicable to any comments of the Company’s stockholders meeting (together SEC with any amendments or supplements respect thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix shall have the opportunity If at any time prior to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from receipt of the Company and its representatives Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the SEC related Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. The Company shall use its best efforts to cause the Proxy Statement to be mailed to the Company Company's stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. . (b) The Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies the Company that it will not review the Proxy StatementOffer, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the Stockholders Meeting "COMPANY STOCKHOLDERS MEETING") for the purpose of seeking the Company stockholder approval and Stockholder Approval. Subject to solicit such approval from the stockholders. In connection with the Stockholders MeetingSection 5.02(b), the Company shall, through the Company Board, recommend to its stockholders that they approve (agive the Company Stockholder Approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(b) an increase in (i) its authorized shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding the foregoing, if Sub or any other subsidiary of Parent shall acquire at least 90% of the outstanding shares of Common Stock each series of Company Capital Stock, the parties shall, at the request of Parent, take all necessary and appropriate action to 519,000,000 and (ii) its authorized shares cause the Merger to become effective as soon as practicable after the expiration of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate Offer without a stockholders meeting in accordance with Section 82 of Designation (Series A-1) and the BCL. (c) elect four directors Parent shall cause all shares of Company Common Stock purchased pursuant to the Board. The Offer and all other shares of Company shall within one (1) Business Day Common Stock owned by Parent, Sub or any other subsidiary of obtaining such stockholder approvals Parent to be voted in accordance with favor of the terms approval of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreementhereof, but no later than June 25, 2010, the Company Alpha and Conexant shall prepare and cause to be filed Alpha shall file with the SEC a preliminary proxy statement materials which shall constitute the Proxy Statement/Prospectus to be sent mailed to Alpha's stockholders in connection with the stockholders of the Company relating to the Company’s stockholders meeting Alpha Stockholders Meeting (together with such proxy statement/prospectus, and any amendments or supplements thereto, the “"Proxy Statement”/Prospectus") and Conexant and Alpha shall prepare and Alpha shall file with the SEC a registration statement on Form S-4 with respect to the issuance of Alpha Common Stock in the Merger (the "Form S-4"). The Company Proxy Statement/Prospectus will be included in and will constitute a part of the Form S-4 as Alpha's prospectus and will be mailed to Conexant's stockholders as an Information Statement in connection with the Distribution. The Form S-4 and the Proxy Statement/Prospectus will comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act and the rules and regulations of the SEC thereunder. Alpha shall use its reasonable best efforts to finalize have the Proxy Statement Statement/Prospectus cleared by the SEC as promptly as possible reasonably practicable after such filingfiling with the SEC, to have the Form S-4 declared effective by the SEC as promptly as reasonably practicable after filing with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the transactions contemplated thereby. The Company shall Alpha shall, as promptly notify Phoenix upon the as practicable after receipt thereof, provide to Conexant copies of any written comments from the SEC or and advise Conexant of any request from the SEC for amendments or supplements oral comments with respect to the Proxy Statement Statement/Prospectus and the Form S-4 received from the SEC. Alpha shall provide Phoenix Conexant with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the a reasonable opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives comment on any amendment or supplement to the SEC related to Form S-4 or the Company stockholders meeting (the “Stockholders Meeting”) Proxy Statement/Prospectus prior to filing such with the SEC, and with a copy of all such filings made with the SEC. The Company shallNotwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Proxy Statement/Prospectus or the Form S-4 shall be made without the approval of both Conexant and Alpha, which approval shall not be unreasonably withheld or delayed. Alpha will use reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to Alpha's stockholders, and Conexant will use reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to Conexant's stockholders, in each case as soon promptly as reasonably practicable following after the date Proxy Statement/Prospectus is cleared by the SEC completes review and the Form S-4 is declared effective under the Securities Act. Alpha shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of Alpha Common Stock in the Merger and Alpha and Conexant shall furnish all information concerning Alpha, Washington and Conexant and the holders of Conexant Common Stock as may be reasonably requested in connection with any such action. Alpha will advise Conexant, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order with respect to the Form S-4, the suspension of the qualification of the Alpha Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Proxy Statement Statement/Prospectus or notifies the Company that it will not review Form S-4. If at any time prior to the Effective Time any information relating to Alpha or Washington, or any of their respective affiliates, officers or directors, should be discovered by Alpha or Conexant which should be set forth in an amendment or supplement to the Form S-4 or the Proxy Statement/Prospectus so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by Applicable Laws, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of Alpha and Conexant. (b) Alpha shall duly call and take all lawful action to call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders on a date determined in accordance with the mutual agreement of Alpha and Conexant (the "Alpha Stockholders Meeting Meeting") for the purpose of seeking Company stockholder approval and obtaining the Required Alpha Vote with respect to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and shall take all lawful action to solicit the other Transaction Documentsapproval and adoption of this Agreement and the Merger by the Required Alpha Vote, including and the Exchange AgreementBoard of Directors of Alpha shall recommend approval and adoption of this Agreement and the Merger by the stockholders of Alpha to the effect as set forth in Section 5.1(f) (the "Alpha Recommendation"), and shall not withdraw, modify or qualify (or propose to withdraw, modify or qualify) such recommendation (a "Change in the Alpha Recommendation"); provided, however, that the Board of Directors of Alpha may make a Change in the Alpha Recommendation pursuant to Section 7.5. Notwithstanding any Change in the Alpha Recommendation, this Agreement shall be submitted to the stockholders of Alpha at the Alpha Stockholders Meeting for the purpose of approving and adopting this Agreement and the Merger, and nothing contained herein shall be deemed to relieve Alpha of such obligation.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following the date after execution of this Agreement, but no later than June 25, 2010, the Company USAi shall prepare and cause to be filed file with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company , in form and substance reasonably satisfactory to Universal, and shall use its reasonable best efforts to finalize the Proxy Statement respond, after consultation with Universal, as promptly as possible after such filingpracticable to any comments of the SEC with respect thereto. The Company USAi shall notify Universal promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement and or for additional information. USAi shall provide Phoenix supply Universal with copies of all correspondence between it and or its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix Universal shall have cooperate with USAi in providing any information or responses to comments, or other assistance, reasonably requested in connection with the opportunity foregoing. If at any time prior to review receipt of the USAi Stockholder Approvals there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, USAi shall promptly prepare and approve in mail to its stockholders such an amendment or supplement. USAi shall use its reasonable discretion best efforts to cause the proxy statement and all amendments thereto and all correspondence from the Company and Proxy Statement to be mailed to its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review Proxy Statement shall comply in all material respects with all applicable requirements of law. None of the Proxy Statement information supplied or notifies to be supplied by Vivendi, USAi or their respective Affiliates for inclusion or incorporation by reference in the Company that it proxy statement will contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not review the Proxy Statementmisleading. (b) USAi shall duly call, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the "USAi Stockholders Meeting Meeting") for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholdersUSAi Stockholder Approvals as soon as practicable after the filing of the definitive Proxy Statement. In connection with the Stockholders Meeting, the Company USAi shall, through the USAi Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000give the USAi Stockholder Approvals, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except to the Board. The Company extent that the USAi Board shall within one (1) Business Day have withdrawn or modified its recommendation to USAi's stockholders of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the Transactions as permitted by Section 4.09. USAi agrees that its obligations pursuant to this Section 4.10 shall not be affected by the withdrawal or modification by the USAi Board or any committee thereof of such Board's or such committee's recommendation to USAi's stockholders of this Agreement or the Transactions. (c) Subject to clause (b) of this Section 4.10, each Parent Party shall use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Transaction DocumentsParent Party in doing, all things necessary, proper or advisable to obtain the USAi Stockholder Approvals. (d) At any meeting of the stockholders of USAi called to seek the USAi Stockholder Approvals or in any other circumstances upon which a vote, consent or other approval (including by written consent) with respect to this Agreement or the Exchange AgreementTransactions is sought, such Parent Party or Diller, as applicable, shall vote (or cause to be voted) any USAi Com▇▇▇ ▇▇ock over which such Parent Party or Diller, as applicable, has the power to vote in favor of granting the ▇▇▇▇ Stockholder Approvals.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following (and in any event within twenty (20) Business Days) after the date of this Agreement, but no later than June 25, 2010No-Shop Period Start Date, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting in preliminary form (together with any amendments thereof or supplements theretothereto and any other required proxy materials, the “Proxy Statement”)) for a special meeting of the Company’s stockholders (including any adjournments and postponements thereof, the “Stockholder Meeting”) and file it with the SEC, and the Company and Parent shall cooperate with each other in connection with the preparation of the foregoing, including to collect from their respective Affiliates, as applicable, any necessary information for the preparation of the foregoing. The Company shall use its commercially reasonable best efforts to finalize have the Proxy Statement cleared by the SEC as promptly as possible practicable after such filingthe filing thereof, including using its commercially reasonable efforts to respond as promptly as reasonably practicable to any comments received from the SEC or its staff concerning the Proxy Statement. The Company shall notify the other parties hereto promptly notify Phoenix upon the receipt of any comments from the SEC or its staff or any other government officials and of any request from by the SEC or its staff or any other government officials for amendments or supplements to the Proxy Statement and shall provide Phoenix supply the others with copies of all correspondence between it and or any of its representativesRepresentatives, on the one hand, and the SEC, or its staff or any other government officials, on the other hand, with respect to the Proxy Statement. Phoenix Without limiting the generality of the foregoing, each of Parent and Merger Sub shall have cooperate with the Company, and shall collect from their Affiliates any necessary information, in connection with the preparation and filing of the Proxy Statement, including promptly furnishing to the Company in writing upon request any and all information relating to Parent, Merger Sub and their respective Affiliates as may be required to be set forth in the Proxy Statement under Applicable Law. Parent shall ensure that such information supplied by it and its Affiliates for inclusion in the Proxy Statement will not, on the date the Proxy Statement is first mailed to stockholders of the Company and at the time of the Stockholder meeting, contains any untrue statement of material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto), or responding to any comments of the SEC with respect thereto, the Company shall provide Parent and its counsel with a reasonable opportunity to review and approve comment on such document or response and shall consider Parent’s comments in its reasonable discretion good faith. The Company shall pay all filing fees required to be paid to the proxy statement and all amendments thereto and all correspondence from SEC in connection with the Proxy Statement. (b) The Company shall ensure that the Proxy Statement (i) will not, on the date it is first mailed to stockholders of the Company and its representatives at the time of the Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) will comply as to form in all material respects with the applicable requirements of the Exchange Act. Notwithstanding the foregoing, the Company assumes no responsibility with respect to information supplied by or on behalf of Parent or Merger Sub or their Affiliates in writing for inclusion or incorporation by reference in the Proxy Statement. If, prior to the Stockholder Meeting, the Company, Parent or Merger Sub discovers that information supplied by Parent and its Affiliates in writing for inclusion in the Proxy Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party hereto which discovers such information shall promptly notify the other parties hereto and the Company shall promptly prepare and file with the SEC related an appropriate amendment or supplement to the Company stockholders meeting Proxy Statement and, to the extent required by Applicable Law or the SEC or its staff, disseminate such amendment or supplement to the Company’s stockholders. (the “Stockholders Meeting”c) prior to filing with the SEC. The Company shall, as soon As promptly as reasonably practicable following the date the SEC completes review clearance of the Proxy Statement or notifies by the SEC (and in any event within ten Business Days after clearance by the SEC), the Company that it will not review shall duly set a record date for the Stockholder Meeting and cause the Proxy Statement, duly call Statement in definitive form and give notice of the Stockholder Meeting to be mailed to the Company’s stockholders. As promptly as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders, the Company stockholders by mailing shall in accordance with Applicable Law and the definitive Proxy StatementCompany’s governing documents, convene and hold the Stockholders Stockholder Meeting for the purpose of seeking Company stockholder approval considering and taking action upon the matters requiring Stockholder Approval; provided that notwithstanding anything else to solicit such approval from the stockholders. In connection with the Stockholders Meetingcontrary herein, the Company shall, through may postpone or adjourn the Board, recommend to its stockholders that they approve (a) an increase in Stockholder Meeting (i) its authorized shares with the consent of Common Stock to 519,000,000 and Parent, (ii) its authorized for the absence of a quorum necessary to conduct the business of the Stockholder Meeting, (iii) after consultation with Parent, to ensure that any necessary supplement or amendment to the Proxy Statement is provided to the holders of shares of Preferred Company Common Stock to 16,000,000within a reasonable amount of time in advance of the Stockholder Meeting, (biv) after consultation with Parent, to allow for additional time for the Amended and Restated Certificate solicitation of Designation proxies in order to obtain the Stockholder Approval, or (Series A-1v) and if the Company is required to postpone or adjourn the Company Meeting by applicable Law, provided, however, that the Company may not postpone the Stockholders Meeting for more than an aggregate of twenty Business Days without the prior written consent of Parent (c) elect four directors to the Boardwhich shall not be unreasonably withheld, conditioned or delayed). The Company shall within one consult with Parent to set the record date for the Stockholder Meeting and shall not change the record date or set a new record date for the Stockholder Meeting without consulting with Parent in good faith. Unless the Company Board or any committee thereof has made an Adverse Recommendation Change in compliance with Section 6.03, the Company shall (1x) Business Day make the Company Recommendation to the stockholders of obtaining the Company and include such stockholder approvals recommendation in the Proxy Statement, (y) use its commercially reasonable efforts to cause the definitive Proxy Statement to be mailed to the Company’s stockholders and to solicit from stockholders of the Company proxies in favor of the adoption of this Agreement and (z) take all other action necessary or advisable to secure the vote of the holders of shares of Company Common Stock required by Applicable Law to effect the Merger. In the event of an Adverse Recommendation Change, the Company shall continue to submit this Agreement to the stockholders of the Company for approval at the Stockholder Meeting unless this Agreement shall have been terminated in accordance with its terms prior to the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementStockholder Meeting.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following (and in any event within fifteen Business Days) after the date of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting in preliminary form (together with any amendments thereof or supplements theretothereto and any other required proxy materials, the “Proxy Statement”)) for a special meeting of the Company’s stockholders (including any adjournments and postponements thereof, the “Stockholder Meeting”) and file it with the SEC, and the Company and Parent shall cooperate with each other in connection with the preparation of the foregoing, including to collect from their respective Affiliates, as applicable, any necessary information for the preparation of the foregoing. The Company shall use its commercially reasonable best efforts to finalize have the Proxy Statement cleared by the SEC as promptly as possible practicable after such filingthe filing thereof, including using its commercially reasonable efforts to respond as promptly as reasonably practicable to any comments received from the SEC or its staff concerning the Proxy Statement. The Company shall notify Parent promptly notify Phoenix upon the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide Phoenix supply Parent with copies of all material correspondence between it and or any of its representativesRepresentatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix Without limiting the generality of the foregoing, each of Parent and Merger Sub shall have cooperate with the Company, and shall collect from their Affiliates any necessary information, in connection with the preparation and filing of the Proxy Statement, including promptly furnishing to the Company in writing upon request any and all information relating to Parent, Merger Sub and their respective Affiliates as may be required to be set forth in the Proxy Statement under Applicable Law. Parent shall ensure that such information supplied by it and its Affiliates for inclusion in the Proxy Statement will not, on the date the Proxy Statement is first mailed to stockholders of the Company and at the time of the Stockholder meeting, contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto), or responding to any comments of the SEC or any proxy advisory firm (including ISS, Glass Lewis and ▇▇▇▇-▇▇▇▇▇) with respect thereto, the Company shall provide Parent and its counsel with a reasonable opportunity to review and approve comment on such document or response and shall consider Parent’s comments in its reasonable discretion good faith. The Company shall pay all filing fees required to be paid to the proxy statement and all amendments thereto and all correspondence from SEC in connection with the Proxy Statement. (b) The Company shall ensure that the Proxy Statement (i) will not, on the date it is first mailed to stockholders of the Company and its representatives at the time of the Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) will comply as to form in all material respects with the applicable requirements of the Exchange Act. Notwithstanding the foregoing, the Company assumes no responsibility with respect to information supplied by or on behalf of Parent or Merger Sub or their Affiliates in writing for inclusion or incorporation by reference in the Proxy Statement. If, prior to the Stockholder Meeting, the Company, Parent or Merger Sub discovers that information supplied by Parent and its Affiliates in writing for inclusion in the Proxy Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party hereto which discovers such information shall promptly notify the other parties hereto and the Company shall promptly prepare and file with the SEC related an appropriate amendment or supplement to the Proxy Statement and, to the extent required by Applicable Law or the SEC or its staff, disseminate such amendment or supplement to the Company’s stockholders. For the avoidance of doubt, no representation or warranty is made by Parent or Merger Sub with respect to statements made (or incorporated by reference) in the Proxy Statement based on information supplied by or on behalf of the Company stockholders meeting or any of its Subsidiaries. (the “Stockholders Meeting”c) prior to filing with the SEC. The Company shall, as soon As promptly as reasonably practicable following the date the SEC completes review clearance of the Proxy Statement or notifies by the SEC (and in any event within five Business Days after clearance by the SEC), the Company that it will not review shall conduct a “broker search” in accordance with Applicable Law and duly set a record date for the Stockholder Meeting and cause the Proxy Statement, duly call Statement in definitive form and give notice of the Stockholder Meeting to be mailed to the Company’s stockholders. As promptly as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders, the Company stockholders by mailing shall in accordance with Applicable Law and the definitive Proxy StatementCompany’s organizational documents, convene and hold the Stockholders Stockholder Meeting for the purpose of seeking Company stockholder approval considering and taking action upon the matters requiring Stockholder Approval; provided that notwithstanding anything else to solicit such approval from the stockholders. In connection with the Stockholders Meetingcontrary herein, the Company shall, through may postpone or adjourn the Board, recommend to its stockholders that they approve (a) an increase in Stockholder Meeting (i) its authorized shares with the consent of Common Stock to 519,000,000 and Parent (which shall not be unreasonably withheld, conditioned or delayed), (ii) its authorized for the absence of a quorum necessary to conduct the business of the Stockholder Meeting, (iii) after consultation with Parent, to ensure that any necessary supplement or amendment to the Proxy Statement is provided to the holders of shares of Preferred Company Common Stock to 16,000,000within a reasonable amount of time in advance of the Stockholder Meeting, (biv) after consultation with Parent, to allow for additional time for the Amended and Restated Certificate solicitation of Designation proxies in order to obtain the Stockholder Approval, or (Series A-1v) and if the Company is required to postpone or adjourn the Company Meeting by Applicable Law, provided, however, that the Company may not postpone the Stockholders Meeting for more than an aggregate of twenty Business Days without the prior written consent of Parent (c) elect four directors to the Boardwhich shall not be unreasonably withheld, conditioned or delayed). The Company shall within one consult with Parent to set the record date for the Stockholder Meeting and shall not change the record date or set a new record date for the Stockholder Meeting without consulting with Parent in good faith. Unless the Company Board or any committee thereof has made an Adverse Recommendation Change in compliance with Section 6.03, the Company shall (1x) Business Day make the Company Recommendation to the stockholders of obtaining the Company and include such stockholder approvals recommendation in the Proxy Statement, (y) use its commercially reasonable efforts to cause the definitive Proxy Statement to be mailed to the Company’s stockholders and to solicit from stockholders of the Company proxies in favor of the adoption of this Agreement and (z) take all other action necessary or advisable to secure the vote of the holders of shares of Company Common Stock required by Applicable Law to effect the Merger. In the event of an Adverse Recommendation Change, the Company shall continue to submit this Agreement to the stockholders of the Company for approval at the Stockholder Meeting unless this Agreement shall have been terminated in accordance with its terms prior to the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementStockholder Meeting.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, the Company shall shall, with the assistance of Parent, prepare the Proxy Statement and cause to file the Proxy Statement with the SEC; provided that the preliminary Proxy Statement will be filed with the SEC a preliminary proxy statement within twenty Business Days following the date of this Agreement. Parent, Merger Sub and the Company shall cooperate with each other in the preparation of the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and Merger Sub will furnish to the Company the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be sent set forth in the Proxy Statement. The Company shall cause the Proxy Statement to comply as to form in all material respects with the stockholders applicable requirements of the Exchange Act and the rules of the SEC and the NYSE. The Company will not file the preliminary or definitive Proxy Statement or any supplement or amendment thereto (or any disclosure relating to the Company’s stockholders meeting (together foregoing) with the SEC or otherwise disseminate any amendments of the foregoing without providing Parent and its counsel a reasonable opportunity in advance to review and comment thereon, which comments shall be considered and discussed with Parent and its counsel by the Company and its counsel in good faith; provided, however, that the Company shall have no obligation to include any such comments to the extent that the Company determines in good faith, in consultation with its counsel, that including such comments would result in the Proxy Statement containing an untrue statement of a material fact or supplements theretoomitting to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the “Proxy Statement”)circumstances under which they are made, not misleading. The Company shall use its commercially reasonable best efforts to finalize resolve all SEC comments with respect to the Proxy Statement as promptly as possible practicable after such filingreceipt thereof. Each of Parent, Merger Sub and the Company agrees to correct any information provided by it for use in the Proxy Statement that shall have become false or misleading. The Company shall promptly as soon as reasonably practicable notify Phoenix upon Parent and Merger Sub of the receipt of any comments from the SEC or any request from the SEC for amendments or supplements with respect to the Proxy Statement and any request by the SEC for any amendment to the Proxy Statement or for additional information. To the extent not prohibited under applicable Law, the Company shall provide Phoenix Parent with copies of all material correspondence between it and the Company or any of its representativesRepresentatives, on the one hand, and the SEC, on the other hand, with respect to such filings, requests or the transactions contemplated by this Agreement. Phoenix To the extent not prohibited under applicable Law, no response to staff comments on the Proxy Statement or requests for information shall have be made by the Company without providing Parent and its counsel a reasonable opportunity in advance to review and approve in comment thereon, which comments shall be considered and discussed with Parent and its reasonable discretion the proxy statement and all amendments thereto and all correspondence from counsel by the Company and its representatives counsel in good faith. Notwithstanding anything to the SEC related to contrary set forth herein, the Company shall not be required to provide to Parent or Merger Sub with copies of such SEC comments and requests for information or the opportunity to comment pursuant to this Section 5.5(a) in the event that the Company Board has made an Adverse Recommendation Change. (b) As promptly as reasonably practicable (and, unless otherwise agreed by Parent and the Company in writing, in any event promptly following the clearance of the Proxy Statement by the SEC), the Company, acting through the Company Board, shall (i) take all action necessary to duly call, give notice of, convene and hold a meeting of its stockholders meeting for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders Meeting”) and (ii) except to the extent that the Company Board shall have effected an Adverse Recommendation Change in accordance with Section 5.4(c), include in the Proxy Statement the recommendation of the Company Board that the stockholders of the Company vote in favor of the adoption of this Agreement; provided, however, that the Company shall be permitted to adjourn or postpone convening the Company Stockholders Meeting (but not beyond the third Business Day prior to the Termination Date) (A) if as of the time for which the Company Stockholders Meeting is originally scheduled (as set forth in the Proxy Statement), there are insufficient Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholder Meeting or to the extent that at such time the Company has not received proxies sufficient to allow the receipt of the Company Stockholder Approval at the Company Stockholder Meeting (such postponement or adjournment to be for no more than five Business Days and shall be no later than the date three Business Days prior to the Termination Date), (B) to allow time for the filing and dissemination of any supplemental or amended disclosure document that in the good faith judgment of the Company Board or any committee thereof (after consultation with its legal counsel) is required to be filed and disseminated under applicable Law (in each case, such postponement or adjournment to be for no more than a reasonable amount of time taking into account the SECrequirements under applicable Law) or (C) if the Company is required to postpone or adjourn the Company Stockholder Meeting by applicable Law (in each case, such postponement or adjournment to be for no more than a reasonable amount of time taking into account the requirements under applicable Law). (c) Without the prior written consent of Parent (which shall not be unreasonably withheld, conditioned, or delayed), the adoption of this Agreement shall be the only matter (other than matters of procedure required by applicable Law to be voted on by the Company’s stockholders and a “Say-on-Golden-Parachute” vote) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholders Meeting. (d) Once the Company has established a record date for the Company Stockholders Meeting, the Company shall not change such record date or establish a different record date for the Company Stockholders Meeting without the prior written consent of Parent (which shall not be unreasonably withheld, conditioned, or delayed), unless (i) required to do so by the DGCL or the Company’s organizational documents, (ii) the Company reasonably determines it is necessary or advisable to obtain the Company Stockholder Approval or (iii) it is required in connection with any adjournment or postponement of the Company Stockholder Meeting permitted under Section 5.5(b) (it being understood that in the case of each of (i), (ii) and (iii), the Company shall consult with and consider in good faith the views of Parent in connection with changing or establishing a new record date and the setting such new record date). The If the record date for the Company Stockholders Meeting is changed, the Company shall, as soon as to that record date, comply with each of its obligations under this Section 5.5. (e) In connection with the Company Stockholder Meeting, the Company shall use commercially reasonable efforts to (A) subject to the right to make an Adverse Recommendation Change in accordance with Section 5.4, solicit proxies in favor of the adoption of this Agreement in accordance with applicable Law and use commercially reasonable efforts to obtain the Company Stockholder Approval and (B) otherwise comply with all legal requirements applicable to such meeting. The Company shall reasonably practicable cooperate with and keep Parent informed on a reasonably current basis regarding its solicitation efforts and voting results following the date the SEC completes review dissemination of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement. (f) Without limiting the generality of the foregoing, unless this Agreement has been terminated in accordance with its terms, the Company shall establish a record date for, call, give notice of, convene and hold the Stockholders Company Stockholder Meeting and submit the Merger and the adoption of this Agreement for the purpose approval of seeking its stockholders at the Company stockholder approval and Stockholder Meeting whether or not an Adverse Recommendation Change shall have occurred or an Acquisition Proposal shall have been publicly announced or otherwise made known to solicit such approval from the stockholders. In connection with the Stockholders MeetingCompany, the Company shall, through Board or the Board, recommend to Company’s Representatives or its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreementstockholders.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following the date of this Agreement, but in no event later than June 2514 days following the date hereof (such 14 days, 2010the “Proxy Filing Period”), the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to form, and the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its all commercially reasonable best efforts to finalize (i) respond as promptly as practicable to any comments of the SEC with respect thereto, (ii) to prepare and file any amendments to the Proxy Statement necessary to address or correct matters raised in the SEC’s comments, and (iii) to cause the Proxy Statement to be mailed to the Company Stockholders as promptly as possible after such filingpracticable following the date of this Agreement, but in no event later than five days following the filing of the definitive Proxy Statement with the SEC. The Company shall promptly notify Phoenix Parent upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix Parent with copies of all correspondence between it the Company and its representativesRepresentatives, on the one hand, and the SEC, on the other hand, relating to the Proxy Statement. Phoenix To the extent required by applicable Law, if at any time prior to receipt of the Company Stockholder Merger Approval and the Company Stockholder Issuance Approval there shall have occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company or Parent, as the case may be, will promptly inform the other of such occurrence, and the Company and Parent shall cooperate in promptly preparing, filing with the SEC and mailing to the Company Stockholders such an amendment or supplement. Notwithstanding the foregoing, prior to filing or mailing the Proxy Statement or any amendments or supplements thereto or responding to any comments of the SEC with respect thereto, the Company (A) shall provide Parent a reasonable opportunity to review and approve comment on such document or response and (B) shall include in its reasonable discretion the proxy statement and such document or response all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting comments reasonably proposed by Parent. (the “Stockholders Meeting”b) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date of this Agreement (but taking into account the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call time necessary to prepare and give notice to the Company stockholders by mailing distribute the definitive Proxy StatementStatement and the time reasonably necessary to solicit proxies from the Company Stockholders), establish a record date for, duly call, give notice of, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and Stockholders’ Meeting. Subject to solicit such approval from the stockholders. In connection with the Stockholders MeetingSection 5.02, the Company shallshall include the Company Board Recommendation in the Proxy Statement. Subject to Section 5.02, through the Board, recommend Company shall take all action that is both reasonable and lawful to its stockholders that they approve (a) an increase solicit from the Company Stockholders proxies in favor of the proposal to (i) its authorized shares adopt this Agreement (including approval of Common Stock to 519,000,000 the potential BTP Warrants Issuance) and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) approve the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors Company Share Issuance. Notwithstanding anything to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals contrary contained in accordance with the terms of this Agreement, the Exchange Company may adjourn or postpone the Stockholders’ Meeting to the extent necessary to ensure that any necessary supplement or amendment to the Proxy Statement is provided to Company Stockholders in advance of a vote on the adoption of this Agreement or the approval of the Company Share Issuance or, if as of the time for which the Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such Stockholders’ Meeting; provided that any Stockholders’ Meeting so adjourned or postponed shall be held as promptly as permitted by the Charter Documents and the Investor Rights Agreementapplicable Law. (c) In addition, take all requisite actions as promptly as reasonably practicable, but in any event within three (including 3) Business Days after the filing of the Charter AmendmentProxy Statement in definitive form with the SEC, the Certificate Company shall prepare and file with the Nasdaq Listings Qualifications Department applications to list the additional shares Company Common Stock issuable upon exercise of Designation the BTP Warrants, the additional shares of Company Common Stock issuable upon conversion of the Series A Preferred Stock, and the shares of Company Common Stock available to be purchased pursuant to the Securities Purchase Agreement. The Company agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions reasonably necessary or advisable in order to obtain the approvals of such applications, including, without limitation, requesting expedited processing (Series Bif applicable) and the Amended promptly responding to questions and Restated Certificate of Designation (Series A-1) requests for information from NASDAQ, after consulting with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementParent.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following after the date of this Agreement, but no later than June 25, 2010Agreement (and in any event within 15 calendar days after the date hereof), the Company Seller shall (i) prepare and cause to be filed file a Proxy Statement with the SEC in preliminary form as required by the Exchange Act and (ii) in consultation with the Buyer, set a preliminary proxy statement record date for the Seller Stockholders Meeting and commence a broker search pursuant to Section 14a‑13 of the Exchange Act in connection therewith. The Seller shall ensure that the Proxy Statement complies in all material respects with the applicable provisions of the Exchange Act and the rules and regulations promulgated thereunder and satisfies all rules of NYSE American. The Seller shall use commercially reasonable efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after the filing thereof. The Seller shall obtain and furnish the information required to be sent included in the Proxy Statement, shall provide the Buyer with any comments that may be received from the SEC or its staff with respect thereto, shall respond promptly to any such comments made by the SEC or its staff with respect to the Proxy Statement, and shall cause the Proxy Statement in definitive form to be mailed to the Seller’s stockholders at the earliest practicable date. If at any time prior to obtaining the Seller Stockholder Approval, any information relating to the transactions contemplated by this Agreement, the Seller, the Buyer or any of their respective Affiliates, directors or officers should be discovered by the Seller or the Buyer that should be set forth in an amendment or supplement to the Proxy Statement so that such document would not contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party hereto and the Seller shall promptly file with the SEC an appropriate amendment or supplement describing such information and, to the extent required by applicable Law, disseminate such amendment or supplement to the stockholders of the Company relating Seller. Notwithstanding the foregoing, prior to filing or mailing the Company’s stockholders meeting Proxy Statement (together or any amendment or supplement thereto) or responding to any comments of the SEC with any amendments or supplements respect thereto, the “Proxy Statement”). The Company Seller shall use its reasonable best efforts to finalize give the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it Buyer and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the counsel a reasonable opportunity to review and approve in its comment on such document or response and shall give due consideration to all reasonable discretion additions, deletions or changes suggested thereto by the proxy statement and all amendments thereto and all correspondence from the Company Buyer and its representatives counsel. (a) As promptly as practicable after the Proxy Statement is cleared by the SEC for mailing to the SEC related to Seller’s stockholders, the Company Seller shall duly call, give notice of, convene and hold a meeting of its stockholders meeting (the “Seller Stockholders Meeting”) prior to filing for the purpose, among others, of obtaining the Seller Stockholder Approval and, if applicable, the advisory vote required by Rule 14a‑21(c) under the Exchange Act in connection therewith (and such Seller Stockholders Meeting shall in any event be no later than forty-five calendar days after (i) the tenth calendar day after the preliminary Proxy Statement therefor has been filed with the SEC. The Company shall, as soon as reasonably practicable following the SEC if by such date the SEC completes has not informed the Seller that it intends to review of the Proxy Statement or notifies (ii) if the Company SEC has, by the tenth calendar day after the preliminary Proxy Statement therefor has been filed with the SEC, informed the Seller that it will not intends to review the Proxy Statement, duly call and give notice the date on which the SEC confirms that it has no further comments on the Proxy Statement). The Seller may postpone or adjourn the Seller Stockholders Meeting solely (i) with the consent of the Buyer; (ii) (A) due to the Company absence of a quorum or (B) if the Seller has not received proxies representing a sufficient number of Shares for the Seller Stockholder Approval, whether or not a quorum is present, to solicit additional proxies; or (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Seller Board has determined in good faith after consultation with outside legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Seller’s stockholders by mailing prior to the definitive Proxy StatementSeller Stockholders Meeting; provided, convene and hold that the Seller may not postpone or adjourn the Seller Stockholders Meeting more than a total of two times pursuant to clause (ii)(A) and/or clause (ii)(B) of this Section. Notwithstanding the foregoing, the Seller shall, at the request of the Buyer, to the extent permitted by Law, adjourn the Seller Stockholders Meeting to a date specified by the Buyer for the purpose absence of seeking Company stockholder approval a quorum or if the Seller has not received proxies representing a sufficient number of Shares for the Seller Stockholder Approval; provided, that the Seller shall not be required to adjourn the Seller Stockholders Meeting more than one time pursuant to this sentence, and no such adjournment pursuant to solicit such approval from this sentence shall be required to be for a period exceeding 10 Business Days. Except in the stockholders. In connection with the Stockholders Meetingcase of a Seller Adverse Recommendation Change specifically permitted by Section 5.17, the Company shallSeller, through the Seller Board, shall (i) recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by adopt this Agreement and the transactions contemplated hereby, (ii) include such recommendation in the Proxy Statement and (iii) publicly reaffirm such recommendation within 24 hours after a request to do so by the Buyer. Without limiting the generality of the foregoing, the Seller agrees that (x) except in the event of a Seller Adverse Recommendation Change specifically permitted by Section 5.17, the Seller shall use its commercially reasonable efforts to solicit proxies to obtain the Seller Stockholder Approval and (y) its obligations pursuant to this Section 5.18(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Seller or any other Transaction Documents, including Person of any Acquisition Proposal or the Exchange Agreementoccurrence of any Seller Adverse Recommendation Change.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following after the date execution of this AgreementAgreement (and in any event, but no later than June 25, 2010within 20 Business Days), the Company shall prepare and cause to be filed file with the SEC a preliminary proxy statement to be sent to in preliminary form for the stockholders of the Company relating to the Company’s stockholders meeting Stockholder Meeting (together with any amendments thereof or supplements theretothereto and any other required proxy materials, the “Proxy Statement”). The Company shall use its commercially reasonable best efforts to finalize the Proxy Statement respond as promptly as possible after such filingreasonably practicable to any comments received from the SEC or its staff concerning the Proxy Statement. The Company shall notify Parent promptly notify Phoenix upon the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide Phoenix supply the others with copies of all correspondence between it and or any of its representatives, on the one hand, and the SEC, or its staff, on the other hand, with respect to the Proxy Statement. Phoenix Without limiting the generality of the foregoing, each of the Parent Parties shall have cooperate, and shall cause their Affiliates to cooperate, with the Company in connection with the preparation and filing of the Proxy Statement, including promptly furnishing to the Company in writing upon request any and all information relating to the Parent Parties and their respective Affiliates as may be required, or otherwise reasonably requested by the Company, to be set forth in the Proxy Statement under applicable Law. Parent shall ensure that such information supplied by it and its Affiliates in writing for inclusion in the Proxy Statement will not, on the date it is first mailed to stockholders of the Company and at the time of the Stockholder Meeting or filed with the SEC (as applicable), contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto), or responding to any comments of the SEC with respect thereto, the Company shall provide Parent with a reasonable opportunity to review and approve comment on such document or response and shall consider Parent’s comments in its reasonable discretion good faith. The Company shall ensure that the proxy statement and all amendments thereto and all correspondence from Proxy Statement (i) will not on the date it is first mailed to stockholders of the Company and its representatives at the time of the Stockholder Meeting contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the SEC related statements therein, in light of the circumstances under which they are made, not misleading and (ii) will comply as to form in all material respects with the applicable requirements of the Exchange Act. Notwithstanding the foregoing, the Company stockholders meeting assumes no responsibility with respect to information supplied in writing by or on behalf of the Parent Parties or their Affiliates for inclusion or incorporation by reference in the Proxy Statement. (the “Stockholders Meeting”b) prior to filing with the SEC. The Company shall, as soon As promptly as reasonably practicable following the date the SEC completes review clearance of the Proxy Statement or notifies by the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders MeetingSEC, the Company shall, through in accordance with applicable Law and the BoardCompany’s governing documents, recommend duly set a record date for, call, give notice of, convene and hold a special meeting of the Company’s stockholders (including any adjournments and postponements thereof, the “Stockholder Meeting”) for the purpose of obtaining the Company Stockholder Approval; provided that notwithstanding anything else to its stockholders the contrary herein, that they approve the Company may postpone or adjourn the Stockholder Meeting (aA) an increase in with the consent of Parent, (iB) its authorized for the absence of a quorum, (C) to ensure that any necessary supplement or amendment to the Proxy Statement is provided to the holders of shares of Company Common Stock within a reasonable amount of time in advance of the Stockholder Meeting, or (D) to 519,000,000 allow additional solicitation of votes in order to obtain the Company Stockholder Approval. Unless the Company Board or any committee thereof has withdrawn the Board Recommendation in compliance with Section 6.2, the Company shall use its commercially reasonable efforts to cause the definitive Proxy Statement to be mailed to the Company’s stockholders and (ii) its authorized to solicit from stockholders of the Company proxies in favor of the adoption of this Agreement and shall take all other action necessary or advisable to secure the vote of the holders of shares of Preferred Company Common Stock required by applicable Law to 16,000,000, (b) effect the Amended and Restated Certificate of Designation (Series A-1) and Merger. (c) elect four directors If at any time prior to the Board. The Stockholder Meeting any event or circumstance relating to the Company or Parent or any of their respective Subsidiaries, or their respective officers, trustees or directors, should be discovered by the Company or Parent, as the case may be, which, pursuant to the Exchange Act, should be set forth in an amendment or a supplement to the Proxy Statement, so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the Company or Parent, as the case may be, shall within one (1) Business Day of obtaining promptly inform the other party hereto, and an appropriate amendment or supplement describing such stockholder approvals in accordance information shall be filed with the terms SEC and, to the extent required by applicable Law, disseminated to the Company’s shareholders. All such documents that the Company is responsible for filing with the SEC in connection with the Mergers will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the rules and regulations thereunder. (d) Notwithstanding the foregoing or any other provision of this Agreement, the Exchange Agreement parties hereto acknowledge and agree that it is the Company’s intent to include approval of the Excluded Asset Purchase Agreements and Excluded Asset Transactions in the Proxy Statement for voting on by holders of Company Common Stock at the same Stockholder Meeting. The Company’s obligations and efforts under this Section 6.11 (including filing and mailing the Proxy Statement, soliciting the Company Stockholder Approval and/or convening the Stockholder Meeting) are expressly contingent on the timing, rights and obligations of the Company under the corresponding section(s) of the Excluded Asset Purchase Agreements and the Investor Rights Agreement, take all requisite actions Company’s ability (including clearance by the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of DelawareSEC) to effect approvals include approval for such agreements and consummate transactions in the transactions contemplated by Proxy Statement on the timing and terms otherwise described in this Agreement and the other Transaction Documents, including the Exchange AgreementSection 6.11.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the approval and adoption of this Agreement by the Company's stockholders is required by law, the Company shall, at Parent's request, as reasonably soon as practicable following the date expiration of this Agreementthe Offer, but no later than June 25prepare and file with the SEC the Proxy Statement in preliminary form, 2010, and the Company shall prepare and cause use its best efforts to be filed with respond as promptly as practicable to any comments of the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements respect thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix shall have the opportunity If at any time prior to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from receipt of the Company and its representatives Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the SEC related Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. The Company shall use its best efforts to cause the Proxy Statement to be mailed to the Company Company's stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. (b) If the approval and adoption of this Agreement by the Company's stockholders is required by law, the Company shall, if requested by Parent and as soon as practicable following the expiration of the Offer, duly call, give notice of, convene and hold a meeting of its stockholders (the "Company ------- Stockholders Meeting") for the purpose of seeking the Company Stockholder -------------------- Approval. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies through the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve give the Company Stockholder Approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding the foregoing, if Sub or any other subsidiary of Parent shall acquire at least 90% of the outstanding shares of each class of Company Capital Stock, the parties shall, at the request of Parent, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the expiration of the Offer without a stockholders meeting in accordance with Section 253 of the DGCL. (ac) an increase in (i) its authorized Subject to any restrictions imposed by Applicable Law, Parent shall cause all shares of Common Stock purchased pursuant to 519,000,000 the Offer and (ii) its authorized all other shares of Preferred Common Stock owned by Sub or any other subsidiary of Parent to 16,000,000, (b) the Amended be voted to adopt and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by approve this Agreement and the other Transaction DocumentsMerger at the Company Stockholders Meeting or, including at the Exchange Agreementelection of Parent, shall consent in writing to adoption and approval of this Agreement and the Merger pursuant to Section 228 of the DGCL.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following after the date execution of this Agreement, but no later than June 25, 2010, the Company shall prepare the Proxy Statement in preliminary form and cause to be filed file it with the SEC a preliminary proxy statement SEC. The Company shall cause the Proxy Statement to be sent comply as to form in all material respects with the stockholders applicable provisions of the Exchange Act. Unless the Board of Directors of the Company relating or the Strategic Alternatives Committee has effected an Adverse Recommendation Change in accordance with Section 5.02, the Board of Directors of the Company shall make the Company Board Recommendation to the Company’s stockholders meeting (together with any amendments or supplements thereto, and shall include such recommendation in the “Proxy Statement”). The Parent shall provide to the Company all information concerning Parent, Merger Sub and their respective Affiliates as may be reasonably requested by the Company in connection with the Proxy Statement and shall otherwise reasonably assist and cooperate with the Company in the preparation and filing of the Proxy Statement and the resolution of any comments thereto received from the SEC. Each of the Company, Parent and Merger Sub shall correct any information provided by it for use its reasonable best efforts to finalize in the Proxy Statement as promptly as possible after reasonably practicable if and to the extent such filinginformation contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. The Company shall notify Parent promptly notify Phoenix upon the receipt of any comments from the SEC or and of any request from by the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix supply Parent with copies of all written correspondence between it and the Company or any of its representativesRepresentatives, on the one hand, and the SEC, on the other hand, with respect to the Proxy Statement. Phoenix The Company shall have use its reasonable best efforts to respond as promptly as reasonably practicable to any comments received from the SEC concerning the Proxy Statement and to resolve such comments with the SEC, and, subject to Section 5.02, shall use its reasonable best efforts to cause the definitive Proxy Statement to be disseminated to its stockholders as promptly as reasonably practicable (and in any event within five Business Days) after (i) if the Company does not receive comments from the SEC with respect to the preliminary Proxy Statement and does not reasonably believe that it will receive comments, the eleventh calendar day immediately following the date of filing of the preliminary Proxy Statement with the SEC and (ii) if the Company does receive comments from the SEC with respect to the preliminary Proxy Statement, clearance by the SEC with respect to such comments (the date in clause (i) or (ii), as applicable, the “SEC Clearance Date”). Prior to any filing of the Proxy Statement (or any amendment or supplement thereto) or any dissemination thereof to the stockholders of the Company, or responding to any comments from the SEC with respect thereto, the Company shall provide Parent with a reasonable opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from to propose comments on such document or response, which the Company and its representatives to shall consider in good faith. (b) To the SEC related to extent not prohibited by any Judgment by a court of competent jurisdiction, the Company shall, in accordance with the Company Charter Documents and the rules of Nasdaq to duly call, give notice of, convene and hold a meeting of its stockholders meeting (including any adjournment, recess or postponement thereof, the “Stockholders Company Stockholders’ Meeting”) prior to filing with for the SEC. The purpose of obtaining the Company shallStockholder Approval, as soon as reasonably practicable following the date after the SEC completes review Clearance Date. Unless the Board of Directors of the Company or the Strategic Alternatives Committee has effected an Adverse Recommendation Change in accordance with Section 5.02, the Company shall use its reasonable best efforts to obtain the Company Stockholder Approval. The Company shall consult with Parent regarding the record date for the Company Stockholders’ Meeting and shall cause appropriate searches to be made in accordance with Rule 14a-13. The Company shall not change the record date for the Company Stockholders’ Meeting without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything to the contrary contained in this Agreement, the Company may, in consultation with Parent, adjourn, recess or postpone the Company Stockholders’ Meeting (i) to allow reasonable additional time for the filing or mailing of any supplement or amendment to the Proxy Statement or notifies that the Company that it will not review has determined is reasonably likely to be required under applicable Law and for such supplement or amendment to be disseminated and reviewed by the stockholders of the Company in advance of the Company Stockholders’ Meeting, (ii) to the extent required by a court of competent jurisdiction in connection with any proceedings in connection with this Agreement or the Transactions, (iii) if as of the time for which the Company Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement, duly call and give notice ) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Stockholders’ Meeting or (iv) to solicit additional proxies for the purpose of seeking obtaining the Company stockholder approval Stockholder Approval. Notwithstanding the foregoing, (A) the Company shall not adjourn, recess or postpone the Company Stockholders’ Meeting to a date that is more than twenty (20) days after the date on which the Company Stockholders’ Meeting was orginally scheduled without the prior written consent of Parent and (B) if Parent requests that the Company adjourn, postpone or recess the Company Stockholders’ Meeting to solicit additional proxies for the purpose of obtaining the Company Stockholder Approval, and at the time of such approval from request Parent does not reasonably expect there to be sufficient proxies for purposes of obtaining the stockholders. In connection with the Stockholders MeetingCompany Stockholder Approval, the Company shallwill do so; provided, through that the BoardCompany will not be required to adjourn, recommend postpone or recess the Company Stockholders’ Meeting under this clause (B) to its stockholders a date that they approve is more than twenty (a20) an increase days, in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000the aggregate, (b) after the Amended and Restated Certificate of Designation (Series A-1) and date on which the Company Stockholders’ Meeting was orginally scheduled. (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals keep Parent updated with respect to proxy solicitation results as reasonably requested by ▇▇▇▇▇▇, including by allowing Parent to participate in accordance phone calls with the terms Company’s proxy solicitor regarding the proxy solicitation. (d) Nothing in this Section 5.12 shall be deemed to prevent the Company or the Board of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing Directors of the Charter AmendmentCompany or the Strategic Alternatives Committee from taking any action they are permitted or required to take under, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documentsin compliance with, including the Exchange AgreementSection 5.02.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the approval and adoption of this Agreement by the Company's stockholders is required by law, the Company shall, at Parent's request, as reasonably soon as practicable following the date expiration of this Agreementthe Offer, but no later than June 25prepare and file with the SEC the Proxy Statement in preliminary form, 2010, and the Company shall prepare and cause use its best efforts to be filed with respond as promptly as practicable to any comments of the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements respect thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix shall have the opportunity If at any time prior to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from receipt of the Company and its representatives Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the SEC related Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. The Company shall use its best efforts to cause the Proxy Statement to be mailed to the Company Company's stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. The . (b) To the extent that this Agreement requires Company Stockholder Approval, the Company shall, if requested by Parent and as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies the Company that it will not review the Proxy StatementOffer, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting Meeting") for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shallStockholder Approval (including establishing the record date, through if requested by Parent, to be the Boarddate immediately after the date Purchaser first purchases any shares of Common Stock pursuant to the Offer). The Board of Directors, subject to Section 5.2(c), shall recommend to its stockholders that they approve give the Company Stockholder Approval. If Purchaser or any other subsidiary of Parent shall acquire at least 90% of the Fully Diluted Shares, the parties shall, at the request of Parent, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the expiration of the Offer without a stockholders meeting in accordance with Section 351.447 of the Missouri BCL. (ac) an increase in (i) its authorized Parent agrees to cause all shares of Common Stock purchased pursuant to 519,000,000 the Offer and (ii) its authorized all other shares of Preferred Common Stock owned by Purchaser or any other subsidiary of Parent to 16,000,000, (b) the Amended vote to adopt and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by approve this Agreement and the other Transaction DocumentsMerger at the Company Stockholders Meeting or, including at the Exchange Agreementelection of Parent, to be subject to action by written consent in favor of the Company Stockholder Approval pursuant to Section 351.273 of the Missouri BCL.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following after the date of this Agreementhereof (and in any event, but no later than June 25subject to Parent’s timely performance of its obligations under Section 5.4(b), 2010within fifteen (15) Business Days hereof), the Company shall prepare and shall cause to be filed with the SEC in preliminary form a preliminary proxy statement to be sent to the stockholders of the Company on Schedule 14A relating to the Company’s stockholders meeting Stockholders’ Meeting (together with any amendments thereof or supplements thereto, the “Proxy Statement”). Except as expressly contemplated by Section 5.2(e), the Proxy Statement shall include the Company Recommendation with respect to the Merger, the Fairness Opinion and a copy of Section 262 of the DGCL. The Company will cause the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Stockholders’ Meeting, to not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by the Company with respect to information supplied by Parent or Purchaser for inclusion or incorporation by reference in the Proxy Statement. The Company shall cause the Proxy Statement to comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations promulgated thereunder and to satisfy all rules of Nasdaq. The Company shall promptly notify Parent and Purchaser upon the receipt of any comments, whether written or oral, from the SEC or the staff of the SEC or any request from the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement, and shall provide Parent and Purchaser with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC or the staff of the SEC, on the other hand. The Company shall use its reasonable best efforts to finalize respond as promptly as reasonably practicable to any comments of the SEC or the staff of the SEC with respect to the Proxy Statement, and the Company shall consult with Parent and its counsel prior to submitting to the SEC or the staff of the SEC any response to any such comments. Prior to the filing of the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon or the receipt dissemination thereof to the holders of any comments from Shares, or submitting to the SEC or any request from the staff of the SEC for amendments any response to any comments of the SEC or supplements the staff of the SEC with respect thereto, the Company shall provide Parent and Purchaser a reasonable opportunity to review and to propose comments on such document or response, and the Company shall give reasonable and good faith consideration to all additions, deletions or changes suggested thereto by Parent, Purchaser and their Counsel. (b) Parent shall provide to the Company in writing all information concerning Parent and Purchaser as may be reasonably requested by the Company in connection with the Proxy Statement and shall provide Phoenix otherwise assist and cooperate with copies the Company in the preparation of all correspondence between the Proxy Statement and resolution of comments of the SEC or its staff related thereto. Parent will cause the information relating to Parent or Purchaser supplied by it for inclusion in the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Stockholders’ Meeting, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by Parent or Purchaser with respect to information supplied by the Company for inclusion or incorporation by reference in the Proxy Statement. Parent will furnish to the Company in writing the information relating to it and its representatives, on Purchaser required by the one hand, Exchange Act to be set forth in the Proxy Statement promptly following request therefor from the Company. (c) If following the Offer Closing or Offer Termination this Agreement has not been validly terminated pursuant to Section 7.1 and the SECadoption of this Agreement by the Company’s stockholders is required by applicable Law, on then the other hand. Phoenix Company shall have the opportunity right at any time after the Proxy Statement Clearance Date to review (and approve Parent and Purchaser shall have the right, at any time after the Proxy Statement Clearance Date, to request in its reasonable discretion writing that the proxy statement Company, and all amendments thereto and all correspondence from upon receipt of such written request, the Company shall, as promptly as practicable and in any event within ten (10) Business Days after such receipt), (i) establish a record date for and give notice of a meeting of its representatives to stockholders, for the SEC related to purpose of voting upon the Company stockholders meeting adoption of this Agreement (the “Stockholders Stockholders’ Meeting”), and (ii) mail to the holders of Shares as of the record date established for the Stockholders’ Meeting a Proxy Statement (the date the Company elects to take such action or is required to take such action, the “Proxy Date”). The Company shall duly call, convene and hold the Stockholders’ Meeting as promptly as reasonably practicable after the Proxy Date; provided, however, that in no event shall such meeting be held later than thirty-five (35) days following the date the Proxy Statement is mailed to the Company’s stockholders and any adjournments of such meetings shall require the prior written consent of the Parent (which consent shall not be unreasonably withheld, conditioned or delayed) other than in the case in which the Company is required to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the SEC or its staff has instructed the Company is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the holders of Shares prior to filing the Stockholders’ Meeting. Notwithstanding the foregoing, Parent may require the Company to adjourn or postpone the Stockholders’ Meeting on one occasion only (for a period of not more than thirty (30) days but, in no event, to a date subsequent to the second (2nd) Business Day next preceding the Walk-Away Date), unless prior to such adjournment the Company shall have received from holders of Shares as of the record date for the Stockholders’ Meeting an aggregate number of proxies representing Shares voted for the adoption of this Agreement and the Transactions (including the Merger) which proxies have not been withdrawn, such that the condition in Section 6.1(a) would be satisfied at the Stockholders’ Meeting. Once the Company has established a record date for the Stockholders’ Meeting, the Company shall not change such record date or establish a different record date for the Stockholders’ Meeting without the prior written consent of Parent (which such consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law or the Company Charter Documents. Unless the Company Board shall have made a Company Adverse Recommendation Change, the Company shall use its reasonable best efforts to solicit proxies from the holders of Shares for the adoption of this Agreement and shall ensure that all proxies solicited in connection with the SECStockholders’ Meeting are solicited in compliance with all applicable Laws (including all applicable rules of Nasdaq). Unless this Agreement is validly terminated in accordance with Section 7.1 (including the provisions of Section 7.1(c)(ii)), the Company shall submit this Agreement to holders of Shares at the Stockholders’ Meeting even if the Company Board shall have effected a Company Adverse Recommendation Change (not made in respect of a Superior Proposal) or proposed or announced any intention to do so. The Company shall, as soon as reasonably practicable following upon the reasonable request of Parent, advise Parent at least on a daily basis on each of the last seven (7) Business Days prior to the date the SEC completes review of the Proxy Statement or notifies Stockholders’ Meeting as to the aggregate tally of proxies received by the Company that it will not review with respect to the Company Stockholder Approval. Without the prior written consent of Parent, the adoption of this Agreement and the Transactions (including the Merger) shall be the only matter (other than procedural matters) which the Company shall propose to be acted on by the stockholders of the Company at the Stockholders’ Meeting. (d) If at any time prior to the Effective Time any event or circumstance relating to the Company or any of its Subsidiaries or its or their respective officers or directors is known by the Company which, pursuant to the Securities Act or Exchange Act, should be set forth in an amendment or a supplement to the Proxy Statement, duly call the Company shall promptly inform Parent. Each of Parent, Purchaser and give notice the Company agree to correct any information provided by it for use in the Proxy Statement which shall have become false or misleading. (e) Notwithstanding the foregoing, if, following the Offer Closing, the expiration of any “subsequent offering period” as contemplated by Section 1.1(d) and the exercise, if any, of the Top-Up Option, Parent and its Affiliates shall own at least 90% of the outstanding shares of each class and series of outstanding capital stock of the Company, the parties shall take all necessary and appropriate action, including with respect to the Company stockholders transfer to Purchaser of all Shares held by mailing Parent or its Affiliates, to cause the definitive Proxy Statement, convene and hold Effective Time to occur as soon as practicable after the Stockholders Offer Closing without the Stockholders’ Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with Section 253 of the terms DGCL. (f) Each of Parent and Purchaser shall affirmatively vote at the Stockholders’ Meeting or otherwise all Shares acquired in the Offer (if any), or otherwise beneficially owned by it or any of its respective Subsidiaries as of the applicable record date, for the adoption of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take in accordance with applicable Law. Parent shall vote all requisite actions (including the filing of the Charter Amendmentshares of capital stock of Purchaser beneficially owned by it, the Certificate or sign a written consent in lieu of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State a meeting of the State stockholders of Delaware) to effect approvals and consummate Purchaser, in favor of the transactions contemplated by adoption of this Agreement and the other Transaction Documents, including the Exchange Agreementin accordance with applicable Law.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the adoption of this Agreement by the Company's stockholders is required by Law ("Company Stockholder Approval") in order to consummate the Merger, the Company shall, at Purchaser's request, as reasonably soon as practicable following the date expiration of this Agreementthe Offer, but no later than June 25prepare and file with the SEC an information or proxy statement (the "Proxy Statement") in preliminary form, 2010and each of the Company and Purchaser shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company shall notify Purchaser promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Purchaser with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that is required to be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and cause mail to be filed with the SEC a preliminary proxy statement to be sent to the its stockholders of the such an amendment or supplement. The Company relating to the Company’s stockholders meeting (together with shall not mail any amendments Proxy Statement, or supplements any amendment or supplement thereto, the “Proxy Statement”)to which Purchaser reasonably objects. The Company shall use its reasonable best efforts to finalize cause the Proxy Statement to be mailed to the Company's stockholders as promptly as possible practicable after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The . (b) If the adoption of this Agreement by the Company's stockholders is required by Law in order to consummate the Merger, the Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies the Company that it will not review the Proxy StatementOffer, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting Meeting") for the purpose of seeking the Company stockholder approval and to solicit such approval from the stockholdersStockholder Approval. In connection with the Stockholders Meeting, the The Company shall, through the BoardCompany Board based upon the recommendation of the Special Committee, recommend to its stockholders that they approve (a) an increase give the Company Stockholder Approval, and neither the Company Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify such recommendation or related approval, unless the Company Board, based on the recommendation of the Special Committee, determines in (i) good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors fiduciary duties to the Board. The Company's stockholders under applicable Law; provided, that, if the Purchaser so elects, the Purchaser shall execute a written consent approving the Merger and, in lieu of holding a stockholders meeting, the Company shall within one (1) Business Day notify the stockholders of obtaining the Company of such stockholder approvals written consent in accordance with the terms By-Laws of the Company and Section 228 of the DGCL. Notwithstanding the foregoing, if the Purchaser shall acquire at least 90% of the outstanding shares of each class of capital stock of the Company, the parties shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the expiration of the Offer without a stockholders meeting in accordance with Section 253 of the DGCL (a "Short-Form Merger"). (c) Purchaser shall cause all shares of Company Common Stock purchased by the Purchaser pursuant to the Offer and all other shares of Company Common Stock owned by the Purchaser to be voted in favor of the adoption of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreementif applicable.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following the date of this Agreement, but no later than June 25the Company, 2010acting through the Company Board, shall in accordance with applicable Law, the Company Charter, the Company Bylaws and the NASDAQ Stock Market ("NASDAQ") rules: (i) duly call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable following clearance with the SEC of the Proxy Statement for the purpose of securing the Company Stockholder Approval (such meeting, and any postponement or adjournment thereof, the "Company Stockholders Meeting"), (ii) except to the extent that the Company Board has effected or effects a Company Adverse Recommendation Change in accordance with the terms of ‎Section 7.03(e), the Company shall, through the Company Board, advise and recommend to its stockholders the approval of the Merger (the "Merger Recommendation") and shall include such recommendation in the Proxy Statement and (iii) use its commercially reasonable efforts to solicit from holders of shares of Company Common Stock proxies in favor of the adoption of this Agreement and take all other action necessary or advisable to secure, at the Company Stockholders' Meeting, the Company Stockholder Approval. (b) As soon as reasonably practicable following the date of this Agreement, the Company shall (i) prepare and cause to be filed file with the SEC the preliminary Proxy Statement and Schedule 13E-3, which filing shall be no later than 30 days following the date of this Agreement, (ii) mail to its stockholders the Proxy Statement a preliminary proxy statement sufficient time prior to the Company Stockholders Meeting, which shall be held no later than 45 days after the date that the Company is able to file its definitive Proxy Statement with the SEC, and (iii) otherwise comply in all material respects with all legal requirements applicable to the Company Stockholders Meeting. Parent, MergerSub and the Company will cooperate and consult with each other in the preparation of the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and MergerSub will furnish as soon as reasonably practicable to the Company the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be sent to set forth in the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its commercially reasonable best efforts to finalize resolve all SEC comments (in consultation with Parent) with respect to the Proxy Statement as promptly as possible practicable after receipt thereof and to cause the Proxy Statement to be mailed to the Company's Stockholders as promptly as practicable after the Proxy Statement is cleared with the SEC. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on the Proxy Statement or such filingresponse and shall include in such documents or response comments reasonably proposed by Parent and Merger Sub. Each of Parent, MergerSub and the Company agree to correct as soon as reasonably practicable any information provided by it for use in the Proxy Statement which shall have become false or misleading. If at any time prior to the Effective Time, any information should be discovered by any party which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and disseminated by the Company to the stockholders of the Company. The Company shall as promptly as practicable (i) notify Phoenix upon Parent and MergerSub of the receipt of any oral or written comments from the SEC or any request from the SEC for amendments or supplements with respect to the Proxy Statement and shall any request by the SEC for any amendment to the Proxy Statement or for additional information and (ii) provide Phoenix Parent with copies of all written correspondence between it the Company and its representativesRepresentatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity , with respect to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and . (c) elect four directors At the Company Stockholders' Meeting, each of Buyer and Parent shall vote, and Parent shall cause each of its Subsidiaries to the Board. The vote, all shares of Company shall within one (1) Business Day Common Stock beneficially owned by each of obtaining such stockholder approvals Buyer, Parent and Parent's Subsidiaries in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing favor of the Charter Amendment, the Certificate adoption and approval of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementMerger.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) Subject to the last sentence of Section 6.01(b), the Company shall, as reasonably soon as practicable following the date expiration of this Agreementthe Offer and the purchase of the shares of Company Common Stock pursuant thereto, but no later than June 25, 2010, the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to the stockholders form, and each of the Company relating Company, Parent and Sub shall use their best efforts to respond as promptly as practicable to any comments of the Company’s stockholders meeting (together SEC with any amendments or supplements respect thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix shall have the opportunity If at any time prior to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from receipt of the Company and its representatives Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the SEC related Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. The Company shall use its best efforts to cause the Proxy Statement to be mailed to the Company Company's stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. . (b) The Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies Offer and the purchase of the shares of Company that it will not review the Proxy StatementCommon Stock pursuant thereto, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting Meeting") for the purpose of seeking the Company stockholder approval and Stockholder Approval. Subject to solicit such approval from the stockholders. In connection with the Stockholders MeetingSection 5.02(b), the Company shall, through the Company Board, recommend to its stockholders that they approve (agive the Company Stockholder Approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(b) an increase in (i) its authorized shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Company Takeover Proposal. Notwithstanding the foregoing, if Sub or any other subsidiary of Parent shall acquire at least 90% of the outstanding shares of Common Stock each series of Company Capital Stock, the parties shall, at the request of Parent, take all necessary and appropriate action to 519,000,000 and (ii) its authorized shares cause the Merger to become effective as soon as practicable after the expiration of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate Offer without a stockholders meeting in accordance with Section 14-2-1104 of Designation (Series A-1) and the GBCC. (c) elect four directors Parent shall cause all shares of Company Common Stock purchased pursuant to the Board. The Offer and, if exercised, the Top Up Option, and all other shares of Company shall within one (1) Business Day Common Stock owned by Parent, Sub or any other subsidiary of obtaining such stockholder approvals Parent to be voted in accordance with favor of the terms approval of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following (and in any event within fifteen Business Days) after the date of this Agreement, but no later than June 25, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting in preliminary form (together with any amendments thereof or supplements theretothereto and any other required proxy materials, the “Proxy Statement”)) for a special meeting of the Company’s stockholders (including any adjournments and postponements thereof, the “Stockholder Meeting”) and file it with the SEC, and the Company and Parent shall cooperate with each other in connection with the preparation of the foregoing, including to collect from their respective Affiliates, as applicable, any necessary information for the preparation of the foregoing. The Company shall use its commercially reasonable best efforts to finalize have the Proxy Statement cleared by the SEC as promptly as possible practicable after such filingthe filing thereof, including using its commercially reasonable efforts to respond as promptly as reasonably practicable to any comments received from the SEC or its staff concerning the Proxy Statement. The Company shall notify Parent promptly notify Phoenix upon the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement and shall provide Phoenix supply Parent with copies of all material correspondence between it and or any of its representativesRepresentatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix Without limiting the generality of the foregoing, each of Parent and Merger Sub shall have cooperate with the Company, and shall collect from their Affiliates any necessary information, in connection with the preparation and filing of the Proxy Statement, including promptly furnishing to the Company in writing upon request any and all information relating to Parent, Merger Sub and their respective Affiliates as may be required to be set forth in the Proxy Statement under Applicable Law. Parent shall ensure that such information supplied by it and its Affiliates for inclusion in the Proxy Statement will not, on the date the Proxy Statement is first mailed to stockholders of the Company and at the time of the Stockholder meeting, contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto), or responding to any comments of the SEC or any proxy advisory firm (including ISS, Glass Lewis and ▇▇▇▇-▇▇▇▇▇) with respect thereto, the Company shall provide Parent and its counsel with a reasonable opportunity to review and approve comment on such document or response and shall consider Parent’s comments in its reasonable discretion good faith. The Company shall pay all filing fees required to be paid to the proxy statement and all amendments thereto and all correspondence from SEC in connection with the Proxy Statement. (b) The Company shall ensure that the Proxy Statement (i) will not, on the date it is first mailed to stockholders of the Company and its representatives at the time of the Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) will comply as to form in all material respects with the applicable requirements of the Exchange Act. Notwithstanding the foregoing, the Company assumes no responsibility with respect to information supplied by or on behalf of Parent or Merger Sub or their Affiliates in writing for inclusion or incorporation by reference in the Proxy Statement. If, prior to the Stockholder Meeting, the Company, Parent or Merger Sub discovers that information supplied by Parent and its Affiliates in writing for inclusion in the Proxy Statement contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party hereto which discovers such ACTIVE/110954383.28 information shall promptly notify the other parties hereto and the Company shall promptly prepare and file with the SEC related an appropriate amendment or supplement to the Proxy Statement and, to the extent required by Applicable Law or the SEC or its staff, disseminate such amendment or supplement to the Company’s stockholders. For the avoidance of doubt, no representation or warranty is made by Parent or Merger Sub with respect to statements made (or incorporated by reference) in the Proxy Statement based on information supplied by or on behalf of the Company stockholders meeting or any of its Subsidiaries. (the “Stockholders Meeting”c) prior to filing with the SEC. The Company shall, as soon As promptly as reasonably practicable following the date the SEC completes review clearance of the Proxy Statement or notifies by the SEC (and in any event within five Business Days after clearance by the SEC), the Company that it will not review shall conduct a “broker search” in accordance with Applicable Law and duly set a record date for the Stockholder Meeting and cause the Proxy Statement, duly call Statement in definitive form and give notice of the Stockholder Meeting to be mailed to the Company’s stockholders. As promptly as reasonably practicable following the mailing of the Proxy Statement to the Company’s stockholders, the Company stockholders by mailing shall in accordance with Applicable Law and the definitive Proxy StatementCompany’s organizational documents, convene and hold the Stockholders Stockholder Meeting for the purpose of seeking Company stockholder approval considering and taking action upon the matters requiring Stockholder Approval; provided that notwithstanding anything else to solicit such approval from the stockholders. In connection with the Stockholders Meetingcontrary herein, the Company shall, through may postpone or adjourn the Board, recommend to its stockholders that they approve (a) an increase in Stockholder Meeting (i) its authorized shares with the consent of Common Stock to 519,000,000 and Parent (which shall not be unreasonably withheld, conditioned or delayed), (ii) its authorized for the absence of a quorum necessary to conduct the business of the Stockholder Meeting, (iii) after consultation with Parent, to ensure that any necessary supplement or amendment to the Proxy Statement is provided to the holders of shares of Preferred Company Common Stock to 16,000,000within a reasonable amount of time in advance of the Stockholder Meeting, (biv) after consultation with Parent, to allow for additional time for the Amended and Restated Certificate solicitation of Designation proxies in order to obtain the Stockholder Approval, or (Series A-1v) and if the Company is required to postpone or adjourn the Company Meeting by Applicable Law, provided, however, that the Company may not postpone the Stockholders Meeting for more than an aggregate of twenty Business Days without the prior written consent of Parent (c) elect four directors to the Boardwhich shall not be unreasonably withheld, conditioned or delayed). The Company shall within one consult with Parent to set the record date for the Stockholder Meeting and shall not change the record date or set a new record date for the Stockholder Meeting without consulting with Parent in good faith. Unless the Company Board or any committee thereof has made an Adverse Recommendation Change in compliance with Section 6.03, the Company shall (1x) Business Day make the Company Recommendation to the stockholders of obtaining the Company and include such stockholder approvals recommendation in the Proxy Statement, (y) use its commercially reasonable efforts to cause the definitive Proxy Statement to be mailed to the Company’s stockholders and to solicit from stockholders of the Company proxies in favor of the adoption of this Agreement and (z) take all other action necessary or advisable to secure the vote of the holders of shares of Company Common Stock required by Applicable Law to effect the Merger. In the event of an Adverse Recommendation Change, the Company shall continue to submit this Agreement to the stockholders of the Company for approval at the Stockholder Meeting unless this Agreement shall have been terminated in accordance with its terms prior to the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementStockholder Meeting.

Preparation of Proxy Statement; Stockholders Meeting. As (a) In accordance with the Company's Certificate of Incorporation and Bylaws, the Company shall promptly call, give notice of, convene and hold a meeting of its stockholders as promptly as reasonably practicable for the purpose of obtaining the Required Company Vote with respect to the transactions contemplated by this Agreement (the "Company Stockholders Meeting"). (b) The Company will promptly prepare and file all materials required to be filed under the Exchange Act as well as all other applicable state or foreign securities Laws and the rules and regulations thereunder, and Parent and Merger Sub will cooperate with the Company in the preparation of such materials. Such materials shall include a proxy statement in the form mailed by the Company to its stockholders, together with any and all amendments or supplements thereto, which materials are herein referred to as the "Proxy Statement." The Company will use reasonable best efforts to file the initial Proxy Statement with the SEC within twenty-one (21) days of the date hereof and to respond promptly to any comments of the SEC with respect to the Proxy Statement, and will cause the Proxy Statement to be mailed to the Company's stockholders as promptly as reasonably practicable following completion of any SEC review of the date Proxy Statement. If at any time prior to the Effective Time any fact or event relating to the Company or any of this Agreement, but no later than June 25, 2010its Affiliates which causes the Company to determine to prepare a supplement to the Proxy Statement should be discovered by the Company or should to the Knowledge of the Company occur, the Company shall prepare promptly inform Parent of such fact or event. (c) Parent and Merger Sub will furnish the Company with such information concerning Parent and its Subsidiaries as is necessary in order to cause the Proxy Statement, insofar as it relates to be filed Parent and its Subsidiaries, to comply with the SEC a preliminary proxy statement applicable provisions of the Exchange Act and the rules and regulations thereunder. Parent and Merger Sub agree to promptly advise the Company if, at any time prior to the Company Stockholders Meeting, any information provided by them or the Company in the Proxy Statement is or becomes incorrect or incomplete in any material respect and to provide the Company with the information needed to correct such inaccuracy or omission. Parent and Merger Sub will furnish the Company with such supplemental information as may be sent necessary in order to cause the Proxy Statement, insofar as it relates to Parent and Merger Sub, to comply with the Exchange Act and the rules and regulations thereunder after the mailing thereof to the stockholders of the Company. (d) The Company will, through its Board of Directors, recommend to its stockholders the approval and adoption of this Agreement and the consummation of the transactions contemplated hereby; provided, however, that the Company's Board of Directors may withdraw, modify, condition or refuse to make such recommendation if it determines in good faith after consultation with its outside legal counsel that its fiduciary obligations require it to do so. Notwithstanding anything to the contrary contained herein, unless this Agreement has been terminated, this Agreement shall be submitted to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from at the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder voting on the approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares adoption of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documentsconsummation of the transactions contemplated hereby, including and nothing contained herein shall be deemed to relieve the Exchange AgreementCompany of such obligations.

Preparation of Proxy Statement; Stockholders Meeting. (a) The covenants of the Company in this Article 6 are subject to the determination by the Company with the advice of counsel on the issue of whether shareholder approval is required for the transactions contemplated by this Agreement. The Company will seek shareholder approval only if such approval is determined to be necessary or desirable under applicable NASDAQ rules. As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010hereof, the Company shall prepare and cause to be filed file with the SEC Commission a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with such proxy statement and any amendments or supplements thereto, the “"Proxy Statement”)") with respect to the Contemplated Transactions. The Proxy Statement shall seek approval of the matters to be submitted for approval at the Stockholders Meeting as provided below. The Company shall use its reasonable best efforts to finalize have the Proxy Statement cleared by the Commission as promptly as possible reasonably practicable after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SECCommission. The Company shall, as soon promptly as reasonably practicable following after receipt thereof, provide the date Purchaser copies of any written comments and advise the SEC completes review Purchaser of any oral comments, with respect to the Proxy Statement received from the Commission. The Company shall provide the Purchaser with a reasonable opportunity to review and comment on the Proxy Statement and any amendment or notifies supplement thereto prior to filing such with the Commission, and with a copy of all such filings made with the Commission. Notwithstanding any other provision herein to the contrary, neither the Proxy Statement nor any amendment or supplement thereto shall be filed or made without the approval of the Purchaser (which approval shall not be unreasonably withheld or delayed). The Company will use reasonable best efforts to cause the Proxy Statement to be mailed to its stockholders as promptly as practicable. If at any time any information should be discovered by the Company which should be set forth in an amendment or supplement to the Proxy Statement so that it will would not review include any misstatement of a material fact or omit to state any material fact necessary to make the Proxy Statementstatements therein, in light of the circumstances under which they were made, not misleading, the Company shall promptly notify the Purchaser and, to the extent required by applicable law, an appropriate amendment or supplement describing such information shall be promptly filed with the Commission and disseminated to the stockholders of the Company. (b) The Company shall duly call and take all lawful action to call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders as promptly as practicable after the Stockholders Meeting date hereof for the purpose of seeking Company stockholder approval obtaining the Required Vote, and any other action that may be required with respect to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares any of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement Agreement) (the "Stockholders Meeting") and shall take all lawful action to solicit the approval of all such matters by the Company's stockholders. The Company shall include in the Proxy Statement the recommendation of the Board of Directors in favor of approval of all such matters (the "Board Recommendation") and the other Transaction Documentswritten opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., dated the date hereof, to the effect that, as of the date hereof, the issuance of the Series A Preferred Stock is fair, from a financial point of view, to the Company; provided, that, the Company shall not be required to include the Board Recommendation in the Proxy Statement if, at the time of the mailing of the Proxy Statement, the Board of Directors of the Company would be permitted to make a Change in the Board Recommendation pursuant to the next sentence of this Section 6.1(b). The Board of Directors of the Company shall not withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any manner adverse to the Purchaser such recommendation (a "Change in the Board Recommendation"); provided, however, that the Board of Directors of the Company may make a Change in the Board Recommendation in connection with an unsolicited bona fide Acquisition Proposal which is submitted in writing to the Board of Directors of the Company after the date hereof if the Company shall have complied in all respects with the requirements of Section 5.1 with respect to such Acquisition Proposal; provided that the Board of Directors of the Company shall have concluded in good faith, after consulting with its outside financial advisors and counsel that such Acquisition Proposal is financially superior to the holders of the Common Stock than the Contemplated Transactions, taking into account all relevant factors (including financing, required approvals and the timing and likelihood of consummation and the post-closing prospects for the Company) (a "Superior Proposal") and that the failure to take such action would reasonably be likely to violate the obligations of the directors under Kentucky law. Unless this Agreement shall have been terminated in accordance with its terms, the Company shall comply with all of its obligations under this Agreement, including calling and holding a Stockholders Meeting under this Section 6.1(b) and submitting the Exchange Agreementmatters set forth in Section 3.24(c) to a vote of the stockholders of the Company, even if the Board of Directors of the Company determines at any time after the date hereof to make a Change in the Board Recommendation.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following the date of this Agreement, but no later than June 25, 2010, the Company Seller shall prepare and cause to be filed file with the SEC a preliminary proxy statement the Proxy Statement. Seller shall use all reasonable best efforts to be sent respond to the stockholders comments of the Company relating SEC concerning the Proxy Statement to enable the Company’s stockholders meeting SEC to orally confirm that it has no comments, or no further comments, concerning the Proxy Statement (together with any amendments or supplements thereto"PROXY CLEARANCE") as promptly as practicable after such filing. Subject to Section 5.7(d), the “Proxy Statement”). The Company shall Seller will use its reasonable best efforts to finalize cause the Proxy Statement to be mailed to Seller's stockholders as promptly as possible practicable after such filingoral notification of Proxy Clearance. The Company Proxy Statement shall promptly not be filed, no amendment or supplement thereto shall be made by Seller nor shall the Proxy Statement be distributed without the prior consent of Purchaser and its counsel, which consent shall not be unreasonably withheld or delayed. Seller shall notify Phoenix upon Purchaser of the receipt of any comments from of the SEC or and of any request from requests by the SEC for amendments or supplements to the Proxy Statement Statement, or for additional information, and shall provide Phoenix promptly supply Purchaser with copies of all correspondence between it and Seller (or its representatives, on the one hand, ) and the SECSEC (or its staff) with respect thereto. Whenever any event occurs which is required to be set forth in an amendment or supplement to the Proxy Statement, on Seller or Purchaser, as the case may be, will promptly inform the other hand. Phoenix shall have of such occurrence and cooperate in the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shallSEC or its staff, and/or mailing to stockholders of Seller, such amendment or supplement. (b) Subject to Section 5.7(d), Seller will, as soon as reasonably practicable following the in connection with obtaining Proxy Clearance, establish a record date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statementfor, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold the Stockholders Meeting and take all related actions pursuant to DGCL and NASDAQ requirements and Seller's certificate of incorporation and bylaws required for the purpose of seeking Company stockholder approval and a stockholders meeting. Subject to solicit such approval from the stockholders. In connection with the Stockholders MeetingSection 5.7(d), the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors Proxy Statement shall include a statement to the Board. The Company shall within one (1) Business Day effect that Seller's Board of obtaining such stockholder approvals Directors recommended that Seller's stockholders vote in accordance with the terms favor of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) adopt and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by approve this Agreement and the other Transaction Documents, including transactions contemplated hereby at the Exchange AgreementStockholders Meeting.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) The Company shall, as reasonably practicable following the date of this Agreementsoon as practicable, but no later than June 25, 2010, the Company shall prepare and cause to be filed file with the SEC a preliminary the proxy materials that shall constitute the proxy statement to be sent to the stockholders of the Company relating to the Merger and the Transactions to be submitted to the Company’s 's stockholders meeting at the Company Stockholders Meeting to approve the Merger and the Transactions (together with such proxy materials, and any amendments or supplements theretosupplements, the “Proxy Statement”). The "PROXY STATEMENT") in preliminary form, and the Company shall use its reasonable best efforts to finalize respond as promptly as practicable to any comments of the SEC with respect thereto. The Parent shall promptly provide to the Company all information regarding the Parent required to be included in the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon in accordance with the receipt Exchange Act and the rules of any comments from the SEC or any request from thereunder. Except as otherwise expressly permitted in accordance with Section 6.02(d), the SEC for amendments or supplements Proxy Statement shall include the recommendation of the Company Board as provided in Section 4.04(b). Parent and its counsel shall be given a reasonable opportunity to review and comment on the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the related proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) materials prior to filing such documents being filed with the SEC. The Company shall, as soon as reasonably practicable At the earliest practical date following the date the SEC completes review clearance of the Proxy Statement or notifies by the SEC, the Company shall use its reasonable best efforts to prepare and file with the SEC the definitive Proxy Statement and to cause the definitive Proxy Statement to be mailed to the Company's stockholders, in each case at the earliest practicable date following the filing of the preliminary Proxy Statement with the SEC. If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that it will not review should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. (b) The Company shall establish a record date for, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the Stockholders Meeting "COMPANY STOCKHOLDERS MEETING") for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company Stockholder Approval. The record and meeting dates for the Company Stockholders Meeting shall be established so as to permit completion of the Merger and the other Transactions at the earliest practicable date and shall be reasonably acceptable to each of the Company and Parent. (c) The Company shall be required to comply with Section 7.01(b) notwithstanding any action taken by the Company Board pursuant to Section 6.02(d) to withdraw or modify its approval or recommendation of the Merger and this Agreement or to approve or recommend any Superior Company Proposal. (d) Parent shall, through the Board, recommend to its stockholders that they approve (a) an increase in : (i) its authorized shares cause Sub promptly to submit this Agreement and the Transactions for approval and adoption by Parent by written consent of Common Stock to 519,000,000 and sole stockholder; (ii) its authorized cause the shares of Preferred Stock capital stock of Sub to 16,000,000, (b) the Amended be voted for adoption and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms approval of this Agreement, the Exchange Agreement Merger and the Investor Rights Agreement, take other Transactions; and (iii) cause to be taken all requisite additional actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) necessary for Sub to adopt and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by approve this Agreement and the other Transaction Documents, including Transactions and to consummate the Exchange AgreementMerger.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, but no later than June 25Target and Parent shall prepare, 2010and Target shall file with the SEC, the Company shall prepare Proxy Statement and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders Schedule 13E-3, and each of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company Target and Parent shall use its commercially reasonable best efforts to finalize respond as promptly as practicable to any comments of the SEC with respect thereto. Each of Target and Parent shall use its commercially reasonable efforts to cause the SEC staff to confirm that they have no further comments on the Proxy Statement or the Schedule 13E-3 (“SEC Confirmation”), as promptly as possible practicable after such filing. The Company Without limiting any other provision herein, the Proxy Statement and the Schedule 13E-3 will contain such information and disclosure reasonably requested by either Target or Parent so that the Proxy Statement and the Schedule 13E-3 conform in form and substance to the requirements of the Exchange Act. Target shall use its commercially reasonable efforts to cause the Proxy Statement and the Schedule 13E-3 to be mailed to the Target Stockholders as promptly as practicable after Target has obtained SEC Confirmation. (b) Each of Target and Parent shall promptly notify Phoenix upon the other of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement and the Schedule 13E-3 or for additional information and shall provide Phoenix supply the other with copies of all correspondence between it and Target or any of its representatives or Parent or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives , with respect to the SEC related Proxy Statement and the Schedule 13E-3. Target and Parent shall cooperate with each other and provide to each other all information necessary in order to prepare the Proxy Statement and the Schedule 13E-3 as expeditiously as practicable. (c) If at any time prior to the Company stockholders meeting Effective Time there shall occur (i) any event with respect to Target or any of its Subsidiaries, or with respect to other information supplied by Target for inclusion in the “Stockholders Meeting”Proxy Statement or the Schedule 13E-3, or (ii) prior any event with respect to filing Parent, or with respect to information supplied by Parent for inclusion in the Proxy Statement or the Schedule 13E-3, in either case, which event is required to be described in an amendment of or a supplement to the Proxy Statement or the Schedule 13E-3, such event shall be so described, and such amendment or supplement shall be promptly filed by Target with the SEC. The Company shallSEC and, as required by Law, disseminated by Target to the Target Stockholders. (d) As soon as reasonably practicable following the date the it receives SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy StatementConfirmation, Target shall duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of the Target Stockholders Meeting (the ”Target Stockholders Meeting”) for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholdersTarget Stockholder Approval. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in The Proxy Statement shall contain (i) its authorized shares the recommendation of Common Stock the Board of Directors of Target to 519,000,000 the Target Stockholders that they give the Target Stockholder Approval and (ii) its authorized shares the determination of Preferred Stock to 16,000,000the Board of Directors of Target that the Merger is advisable and in the best interests of the Target Stockholders, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors except, in each case, to the Board. The Company extent that the Board of Directors shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms have withdrawn or modified its recommendation of this Agreement, Agreement or the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated Merger as permitted by this Agreement and the other Transaction Documents, including the Exchange AgreementSection 5.3(c).

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the Company Stockholder Approval is required by applicable Law, the Company shall, as reasonably soon as practicable following the date acceptance of this Agreementshares of Company Stock pursuant to the Offer, but no later than June 25prepare and file with the SEC the Proxy Statement in preliminary form, 2010and each of the Company and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and cause mail to its stockholders such an amendment or supplement. No filing of, or amendment to, the Proxy Statement will be filed with the SEC a preliminary proxy statement to be sent to the stockholders of made by the Company relating without providing Parent the opportunity to the Company’s stockholders meeting (together with review and comment thereon. The Company shall not mail any amendments Proxy Statement, or supplements any amendment or supplement thereto, the “Proxy Statement”)to which Parent reasonably objects. The Company shall use its reasonable best efforts to finalize cause the Proxy Statement to be mailed to the Company's stockholders as promptly as possible practicable after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The . (b) If the Company Stockholder Approval is required by applicable Law, the Company shall, as soon as reasonably practicable following the date acceptance of shares of Company Stock pursuant to the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy StatementOffer, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the "Company ------- Stockholders Meeting Meeting") for the purpose of seeking the Company stockholder approval and to solicit such approval from the stockholdersStockholder -------------------- Approval. In connection with the Stockholders Meeting, the The Company shall, through the Company Board, recommend to its stockholders that they approve give the Company Stockholder Approval. (c) If the Company Stockholders Meeting is held, Parent shall cause all shares of Company Stock purchased pursuant to the Offer and all other shares of Company Stock owned by Purchaser or any other subsidiary of Parent to be voted at the Company Stockholders Meeting in favor of the adoption of this Agreement and shall, after acceptance of shares of Company Stock pursuant to the Offer, otherwise use its reasonable best efforts to cause the Merger to be completed as soon as practicable. (d) Notwithstanding the foregoing clauses (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000), (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors ), if Purchaser or any other subsidiary of Parent shall acquire at least 90% of the outstanding shares of each class of Company Stock, the parties shall, as soon as possible following the acceptance of shares of Company Stock pursuant to the Board. The Company shall within one (1) Business Day Offer, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the expiration of obtaining such stockholder approvals the Offer without a stockholders meeting in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing Section 253 of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementDGCL.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable (and in any event no later than 30 days) following the date of this Agreement, but no later than June 25, 2010, the Company shall Parent will prepare and cause to be filed with the SEC in preliminary form a preliminary proxy statement to be sent to the stockholders of Parent Stockholders in connection with the Company relating to the Company’s stockholders meeting Parent Stockholders Meeting (together with any amendments as amended or supplements theretosupplemented, the “Proxy Statement”). Purchaser and Parent will cooperate with each other in the preparation of the Proxy Statement. Without limiting the generality of the foregoing, (i) Parent will provide Purchaser and AI Brazil with a reasonable opportunity to review and comment (in the case of AI Brazil, with respect to information relating to AI Brazil) on the Proxy Statement and (ii) upon Parent’s request, Purchaser and AI Brazil will promptly furnish to Parent the information relating to it required by the Exchange Act to be set forth in the Proxy Statement. Parent will cause the Proxy Statement to comply as to form with the applicable requirements of (A) the Exchange Act and (B) the rules and regulations of The Company NASDAQ Stock Market. (b) Each of Parent, NIIH, AI Brazil and Purchaser agree to correct any information provided by it for use in the Proxy Statement if and to the extent such information shall have become false or misleading. Parent will promptly notify Purchaser and AI Brazil of the receipt of any comments from or other correspondence with the SEC or its staff with respect to the Proxy Statement and any request by the SEC or its staff for any amendment to the Proxy Statement or for additional information (and promptly deliver a copy of such comments, correspondence or request to Purchaser and AI Brazil). Parent will respond as promptly as reasonably practicable to any such comments from the SEC or its staff and shall use its reasonable best efforts to finalize cause the Proxy Statement to be cleared by the SEC as promptly as possible after such filing. The Company shall reasonably practicable. (c) Parent shall, as promptly notify Phoenix upon as reasonably practicable (and in any event within 10 Business Days following the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to date on which the Proxy Statement is cleared by the SEC), (i) establish a record date for and shall provide Phoenix with copies give notice of all correspondence between it and a meeting of its representatives, on stockholders for the one hand, purpose of authorizing this Agreement and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting transactions contemplated hereby (the “Parent Stockholders Meeting”), and (ii) prior mail the Proxy Statement to filing with the SECholders of Parent Common Stock as of the record date established for the Parent Stockholders Meeting. The Company shall, as soon As promptly as reasonably practicable following the record date established for the SEC completes review of Parent Stockholders Meeting, Parent, acting through the Proxy Statement or notifies the Company that it will not review the Proxy StatementParent Board, and in accordance with applicable Law, shall (A) duly call and give notice to the Company stockholders by mailing the definitive Proxy Statementcall, convene and hold the Parent Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (iiB) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day subject to Section 8.13, include in the Proxy Statement the Parent Board Recommendation and (2) use its reasonable best efforts to obtain the necessary approval of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement by the Parent Stockholders. Without limiting the generality of the foregoing, subject to termination of this Agreement by Parent pursuant to Section 3.4(i), Parent agrees that its obligations pursuant to clause (A) of the foregoing sentence of this Section 8.12(c) will not be affected by the commencement, public proposal, public disclosure or communication to Seller, AI Brazil or any other Person of any Acquisition Proposal or the occurrence of any Adverse Recommendation Change. (d) Without the prior written consent of Purchaser, Parent may only adjourn or postpone the Parent Stockholders Meeting if and to the extent the Parent Board or a duly authorized committee thereof determines, in good faith and after consultation with outside legal counsel, that (i) Parent is required to postpone the meeting to ensure that any required supplement or amendment to the Proxy Statement is provided to the Parent Stockholders within a reasonable amount of time in advance of the Parent Stockholders Meeting, (ii) there are insufficient shares of Parent common stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Parent Stockholders Meeting, (iii) it is necessary to solicit additional proxies to obtain the Parent Stockholder Approval or (iv) such adjournment or postponement if required to comply with applicable statutory Law; provided that Parent may only postpone the meeting only once, and for a period of not more than an aggregate of 15 Business Days. (e) Except as set forth on Section 8.12(e) of the Company Disclosure Schedule, the adoption of this Agreement will be the only matter (other Transaction Documents, including than matters of procedure and matters required by applicable Law to be voted on by the Exchange Parent Stockholders in connection with the adoption of this Agreement) that Parent will propose to be acted on by the Parent Stockholders at the Parent Stockholders meeting.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following after the date of this AgreementAgreement (and in any event within 15 calendar days after the date hereof), but the Seller shall (i) prepare and file a Proxy Statement with the SEC in preliminary form as required by the Exchange Act and (ii) in consultation with the Buyer, set a preliminary record date for the Seller Stockholders Meeting and commence a broker search pursuant to Section 14a-13 of the Exchange Act in connection therewith. The Seller shall ensure that the Proxy Statement complies in all material respects with the applicable provisions of the Exchange Act and the rules and regulations promulgated thereunder and satisfies all rules of NYSE American. The Seller shall use commercially reasonable efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after the filing thereof. The Seller shall obtain and furnish the information required to be included in the Proxy Statement, shall provide the Buyer with any comments that may be received from the SEC or its staff with respect thereto, shall respond promptly to any such comments made by the SEC or its staff with respect to the Proxy Statement, and shall cause the Proxy Statement in definitive form to be mailed to the Seller’s stockholders at the earliest practicable date. If at any time prior to obtaining the Seller Stockholder Approval, any 63 (b) As promptly as practicable after the Proxy Statement is cleared by the SEC for mailing to the Seller’s stockholders, the Seller shall duly call, give notice of, convene and hold a meeting of its stockholders (the “Seller Stockholders Meeting”) for the purpose, among others, of obtaining the Seller Stockholder Approval and, if applicable, the advisory vote required by Rule 14a-21(c) under the Exchange Act in connection therewith (and such Seller Stockholders Meeting shall in any event be no later than June 25, 2010, forty-five calendar days after (i) the Company shall prepare and cause to be tenth calendar day after the preliminary Proxy Statement therefor has been filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after if by such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes has not informed the Seller that it intends to review of the Proxy Statement or notifies (ii) if the Company SEC has, by the tenth calendar day after the preliminary Proxy Statement therefor has been filed with the SEC, informed the Seller that it will not intends to review the Proxy Statement, duly call and give notice the date on which the SEC confirms that it has no further comments on the Proxy Statement). The Seller may postpone or adjourn the Seller Stockholders Meeting solely (i) with the consent of the Buyer; (ii) (A) due to the Company absence of a quorum or (B) if the Seller has not received proxies representing a sufficient number of Shares for the Seller Stockholder Approval, whether or not a quorum is present, to solicit additional proxies; or (iii) to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the Seller Board has determined in good faith after consultation with outside legal counsel is necessary under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Seller’s stockholders by mailing prior to the definitive Proxy StatementSeller Stockholders Meeting; provided, convene and hold that the Seller may not postpone or adjourn the Seller Stockholders Meeting more than a total of two times pursuant to clause (ii)(A) and/or clause (ii)(B) of this Section. Notwithstanding the foregoing, the Seller shall, at the request of the Buyer, to the extent permitted by Law, adjourn the Seller Stockholders Meeting to a date specified by the Buyer for the purpose absence of seeking Company stockholder approval a quorum or if the Seller has not received proxies representing a sufficient number of Shares for the Seller Stockholder Approval; provided, that the Seller shall not be required to adjourn the Seller Stockholders Meeting more than one time pursuant to this sentence, and no such adjournment pursuant to solicit such approval from this sentence shall be required to be for a period exceeding 10 Business Days. Except in the stockholders. In connection with the Stockholders Meetingcase of a Seller Adverse Recommendation Change specifically permitted by Section 5.17, the Company shallSeller, through the Seller Board, shall (i) recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by adopt this Agreement and the other Transaction Documentstransactions contemplated hereby, including (ii) include such recommendation in the Exchange Agreement.Proxy Statement and (iii) publicly reaffirm such recommendation within 24 hours after a request to do so by the Buyer. Without limiting the generality of the foregoing, 64

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following after the date of this Agreement, but no later than June 25Company shall, 2010with the assistance and reasonable cooperation of the Parent, the Company shall prepare and cause to be filed file the Proxy Statement with the SEC a in preliminary proxy statement form as required by the Exchange Act. Each of the Parent Parties and the Company Parties shall furnish all information concerning itself and its Affiliates that is required to be sent included in the Proxy Statement. Neither the Proxy Statement, nor any amendment or supplement thereto, or any other materials used in connection with the Company Stockholder Meeting, shall be filed or disseminated without providing Parent a reasonable opportunity to review and comment thereon, which comments Company shall consider in good faith. If at any time prior to the stockholders Company Stockholder Meeting, any information relating to any of the Parent Parties and the Company relating Parties or any of their respective Affiliates, directors or officers should be discovered by any Company Party or any Parent Party which should be set forth in an amendment or supplement to the Company’s stockholders meeting (together with Proxy Statement, so that such document would not include any amendments misstatement of a material fact or supplements theretoomit to state any material fact necessary to make the statements therein, in light of the circumstances under which they are made, not misleading, the “Proxy Statement”). The Company Party which discovers such information shall use its reasonable best efforts to finalize promptly notify the Proxy Statement as promptly as possible after such filing. The other Party and Company shall promptly notify Phoenix upon file with the receipt of SEC an appropriate amendment or supplement describing such information and, to the extent required by applicable Law, disseminate such amendment or supplement to the Stockholders. Company shall promptly provide Parent with any comments or requests that may be received from the SEC or any request from the SEC for amendments or supplements its staff with respect to the Proxy Statement and shall provide Phoenix with copies Statement, the Mergers or any of all correspondence between it and its representatives, on the one hand, and the SEC, on the other handtransactions contemplated by this Agreement. Phoenix shall have the Company will provide Parent with a reasonable opportunity to review and approve comment on any response thereto, which comments Company shall consider in good faith. Company shall respond promptly to any such comments or requests made by the SEC or its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives staff with respect to the SEC related to Proxy Statement, the Mergers or any of the other transactions contemplated by this Agreement. All documents that Company stockholders meeting (the “Stockholders Meeting”) prior to is responsible for filing with the SECSEC in connection with the Mergers will comply as to form and substance in all material respects with the applicable requirements of the Exchange Act and the rules and regulations thereunder. (b) As promptly as practicable after the date of this Agreement and, thereafter, upon Parent’s written request (though not more frequently than weekly), Company shall run a broker search for a deemed record date 20 Business Days after the date of such search. The Subject to Section 7.4, Company shall, as soon as reasonably practicable following not later than the date earlier of (x) the SEC completes review SEC’s clearance of the Proxy Statement or notifies for mailing the Company Stockholders and (y) receiving notification that it will the SEC is not review reviewing the preliminary Proxy Statement, take all commercially reasonable actions in accordance with applicable Law, the Company Charter and Company Bylaws and the rules of the NYSE to (i) establish the earliest reasonably practicable record date for a meeting of the Stockholders (the “Record Date”), (ii) duly call and call, give notice of, convene and hold a special meeting of the Stockholders on the earliest reasonably practicable date (including any adjournment or postponement thereof, the “Company Stockholder Meeting”) for the purpose of obtaining the Company Stockholder Approval and (iii) file with the SEC, and mail to the Company stockholders by mailing Stockholders as of the Record Date, the definitive Proxy Statement, convene and hold . Without the Stockholders Meeting for the purpose prior written consent of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders MeetingParent, the Company shall, through approval of the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement Parent Merger and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the other transactions contemplated by this Agreement shall be the only matter (other than matters of procedure and matters required by applicable Law to be voted on by the Stockholders in connection with the approval of the Parent Merger and the other Transaction Documentstransactions contemplated by this Agreement) that Company shall propose to be acted on by the Stockholders at the Company Stockholder Meeting. Company shall solicit from the Stockholders proxies in favor of the approval of the Parent Merger and the other transactions contemplated by this Agreement in accordance with applicable Law and, including unless the Exchange Company Board has effected a Change in Company Recommendation as permitted by Section 7.4, the Proxy Statement shall include the Company Recommendation and Company shall use its commercially reasonable efforts to secure the Company Stockholder Approval at the Company Stockholder Meeting. Company shall cooperate with and keep Parent reasonably informed on a reasonably current basis regarding its solicitation efforts and voting results following dissemination of the definitive Proxy Statement. Company may adjourn or postpone the Company Stockholder Meeting after consultation with Parent (i) to the extent necessary to ensure that any supplement or amendment to the Proxy Statement required pursuant to Section 7.1(a) is provided to the Stockholders in compliance with applicable Law, (ii) if as of the time for which the Company Stockholder Meeting is originally scheduled (as set forth in the Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholder Meeting or (iii) for a single period not to exceed ten (10) Business Days, to solicit additional proxies if necessary to obtain the Company Stockholder Approval; provided, however, that in no event shall all such adjournments or postponements be for more than the later of 30 days in the aggregate or three (3) Business Days prior to the Outside Date and, unless (and only to the extent) required by applicable Law, the Record Date may not be changed without Parent’s prior written consent. (c) Notwithstanding any Change in Company Recommendation, Company shall nonetheless submit the Parent Merger and the other transactions contemplated by this Agreement to the Stockholders for approval at the Company Stockholders Meeting unless this Agreement is terminated in accordance with Article IX prior to the Company Stockholder Meeting. (d) The Parent Parties shall vote, or cause to be voted, all of the shares of Company Common Stock then beneficially owned as of the Record Date by it, any Parent Party or any of their respective Affiliates in favor of the adoption of this Agreement.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010hereof, the Company shall prepare (with Parent’s reasonable cooperation) and cause to be filed file with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to in connection with the Company’s stockholders meeting Company Stockholder Meeting (together with such proxy statement, and any amendments or supplements thereto, the “Proxy Statement”) and Parent shall prepare (with the Company’s reasonable cooperation) and file a registration statement on Form S-4 with respect to the issuance of Parent Common Stock and the Parent Convertible Preferred Stock, if any, in the Merger (such registration statement, and any amendments or supplements thereto, the “Form S-4”). The Form S-4 and the Proxy Statement shall comply as to form in all material respects with the applicable provisions of the Securities Act and the Exchange Act and the rules and regulations thereunder and other applicable Law. Each of Parent and the Company shall use its reasonable best efforts to finalize have the Proxy Statement Form S-4 declared effective by the SEC as promptly as possible practicable after such filingthe filing thereof and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the transactions contemplated thereby. The Parent and the Company shall shall, as promptly notify Phoenix upon as practicable after receipt thereof, provide the receipt other party copies of any written comments and advise the other party of any oral comments, with respect to the Form S-4 and Proxy Statement received from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and SEC. Parent shall provide Phoenix the Company with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the a reasonable opportunity to review and approve in its reasonable discretion comment on the proxy statement Form S-4, and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) any amendment or supplement thereto, prior to filing such with the SEC, and will promptly provide the Company with a copy of all such filings made with the SEC. The Company shallshall provide Parent with a reasonable opportunity to review and comment on the Proxy Statement, and any amendment or supplement thereto, prior to filing such with the SEC, and will promptly provide Parent with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement (including by incorporation by reference) to the Form S-4 or the Proxy Statement shall be made without the approval of Parent and the Company, which approval shall not be unreasonably withheld, conditioned or delayed; provided, that with respect to documents filed by a party which are incorporated by reference in the Form S-4 or Proxy Statement, this right of approval shall apply only with respect to information relating to the other party or its business, financial condition or results of operations; and provided, further, that the Company, in connection with a Change in the Company Recommendation (as defined in Section 6.1(b)), may amend or supplement the Proxy Statement (including by incorporation by reference) pursuant to a Qualifying Amendment to effect such a Change. The Company will use reasonable best efforts to cause the Proxy Statement to be mailed to the Company’s stockholders as soon as reasonably practicable after the Form S-4 is declared effective under the Securities Act. Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities Laws in connection with the issuance of Parent Common Stock and Parent Convertible Preferred Stock and the Company shall furnish all information concerning the Company and the holders of Company Common Stock and Company Convertible Preferred Stock as may be reasonably requested in connection with any such action. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Form S-4 has become effective, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock or Parent Convertible Preferred Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC for amendment of the Form S-4, and the Company will advise Parent, promptly after it receives notice thereof, of any request by the SEC for amendment of the Proxy Statement. If at any time prior to the Effective Time any information relating to Parent or the Company, or any of their respective Affiliates, officers or directors, should be discovered by Parent or the Company which should be set forth in an amendment or supplement to any of the Form S-4 or the Proxy Statement so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other party hereto and, to the extent required by Law, rules or regulations, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of the Company. (b) The Company shall duly take all lawful action to call, give notice of, convene and hold a meeting of stockholders of the Company on a date as soon as reasonably practicable following the date effectiveness of the SEC completes review Form S-4 (“Company Stockholder Meeting”) for the purpose of obtaining the Company Requisite Vote; provided, however, that the Company shall be permitted to delay or postpone convening the Company Stockholder Meeting to the extent the Board of Directors of the Company or any committee thereof, after consultation with outside legal counsel, reasonably believes that such delay or postponement is consistent with its fiduciary duties under applicable Law. The Board of Directors of the Company shall recommend adoption of this Agreement by the stockholders of the Company to the effect as set forth in Section 3.3(b) (the “Company Recommendation”), and shall not (x) withdraw, modify or qualify (or publicly propose to withdraw, modify or qualify) (a “Change”) in any manner adverse to Parent such recommendation or (y) approve, adopt or recommend any Acquisition Proposal (any action described in clauses (x) or (y) being referred to herein as a “Change in the Company Recommendation”); provided the foregoing shall not prohibit accurate disclosure (and such disclosure shall not be deemed to be a Change in the Company Recommendation) of factual information regarding the business, financial condition or results of operations of Parent or the Company or the fact that an Acquisition Proposal has been made, the identity of the party making such proposal or the material terms of such proposal in the Proxy Statement or notifies otherwise, to the extent the Company in good faith determines that it will not review such information, facts, identity or terms is required to be disclosed under applicable Law; provided further, that the Board of Directors of the Company may make a Change in the Company Recommendation pursuant to Section 6.4(d). (c) The Company and Parent shall coordinate and cooperate in connection with (i) the preparation of the Form S-4, the Proxy StatementStatement and any other filings that are required to consummate the Merger and any related transactions contemplated hereby, duly call (ii) determining whether any action by or in respect of, or filing with, any Governmental Entity is required (or any actions are required to be taken under, or consents, approvals or waivers are required to be obtained from parties to, any Company Material Contracts and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In Benefit Plans) in connection with the Stockholders Meeting, Merger or the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the other transactions contemplated by this Agreement Agreement, and (iii) using reasonable best efforts to timely take any such actions (including seeking any such consents, approvals or waivers) or making any such filings or furnishing information required in connection therewith or with the Form S-4, the Proxy Statement or any other Transaction Documents, including the Exchange Agreementfilings.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the adoption of this Agreement by the Company's stockholders is required by Law ("COMPANY STOCKHOLDER APPROVAL") in order to consummate the Merger, the Company shall, at Parent's request, as reasonably soon as practicable following the date expiration of this Agreementthe Offer, but no later than June 25prepare and file with the SEC an information or proxy statement (the "PROXY STATEMENT") in preliminary form, 2010and each of the Company and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that is required to be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and cause mail to be filed with the SEC a preliminary proxy statement to be sent to the its stockholders of the such an amendment or supplement. The Company relating to the Company’s stockholders meeting (together with shall not mail any amendments Proxy Statement, or supplements any amendment or supplement thereto, the “Proxy Statement”)to which Parent reasonably objects. The Company shall use its reasonable best efforts to finalize cause the Proxy Statement to be mailed to the Company's stockholders as promptly as possible practicable after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The . (b) If the adoption of this Agreement by the Company's stockholders is required by Law in order to consummate the Merger, the Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies the Company that it will not review the Proxy StatementOffer, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the Stockholders Meeting "COMPANY STOCKHOLDERS MEETING") for the purpose of seeking the Company stockholder approval and to solicit such approval from the stockholdersStockholder Approval. In connection with the Stockholders Meeting, the The Company shall, through the BoardCompany Board based upon the recommendation of the Special Committee, recommend to its stockholders that they approve (a) an increase give the Company Stockholder Approval and neither the Company Board nor any committee thereof shall withdraw or modify, or propose to withdraw or modify such recommendation or related approval, unless the Company Board, based on the recommendation of the Special Committee, determines in (i) good faith, after consultation with outside counsel, that it is necessary to do so in order to comply with its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors fiduciary duties to the Board. The Company's stockholders under applicable Law; PROVIDED, that, if Merger Sub so elects, ▇▇▇▇▇▇ Sub shall execute a written consent approving the Merger and, in lieu of holding a stockholders meeting, the Company shall within one (1) Business Day notify the stockholders of obtaining the Company of such stockholder approvals written consent in accordance with the terms By-Laws of the Company and Section 228 of the DGCL. Notwithstanding the foregoing, if Merger Sub shall acquire at least 90% of the outstanding shares of each class of capital stock of the Company, the parties shall take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the expiration of the Offer without a stockholders meeting in accordance with Section 253 of the DGCL (a "SHORT-FORM MERGER"). (c) Parent shall cause all shares of Company Common Stock purchased by Merger Sub pursuant to the Offer and all other shares of Company Common Stock owned by Merger Sub to be voted in favor of the adoption of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreementif applicable.

Preparation of Proxy Statement; Stockholders Meeting. ARTICLE 7 - 17.1. As promptly as reasonably practicable following the date of this Agreement, but no later than June 25, 2010hereof, the Company shall prepare commence preparing and shall cause to be filed with the SEC a preliminary proxy materials which shall constitute the proxy statement to be sent to the stockholders of the Company relating to the matters to be submitted to the Company’s 's stockholders meeting at the Stockholders Meeting (together with such proxy statement, and any amendments or supplements thereto, the “"Proxy Statement”"). The Company shall use its reasonable best efforts to finalize have the Proxy Statement cleared by the SEC in order for the Stockholders Meeting to occur prior to September 25, 2000. The Company shall, as promptly as possible practicable after such filingreceipt thereof, provide RFE with copies of any written comments and advise RFE of any oral comments with respect to the Proxy Statement received from the SEC. The Company shall promptly notify Phoenix upon provide RFE a reasonable opportunity to review and comment on the receipt of Proxy Statement and any comments from the SEC amendment or any request from the SEC for amendments or supplements supplement to the Proxy Statement and shall provide Phoenix prior to filing such with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and will provide RFE with a copy of all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing such filings made with the SEC. The Company shall, will use reasonable best efforts to cause the Proxy Statements to be mailed to its stockholders as soon promptly as reasonably practicable following the date the SEC completes review of after the Proxy Statement is cleared by the SEC. The Company will advise RFE, promptly after it receives notice thereof, of the issuance of any stop order or notifies any request by the Company that it will not review SEC for amendment of or supplement to the Proxy Statement. ARTICLE 7 - 17.2. The Company shall duly take all lawful action to call, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders on a date prior to September 25, 2000 (or any other date determined in accordance with the mutual agreement of the Company and RFE) (the "Stockholders Meeting Meeting") for the purpose of seeking Company stockholder approval and obtaining the Required Vote with respect to the lawful action to solicit the approval of the issuance of Warrants at the Second RFE Closing and any Subsequent Closing and the issuance of Warrants pursuant to Section 2.12.2 by the Required Vote; and the Board of Directors of the Company shall recommend approval by the stockholders of the Company of the issuance of Warrants at the Second RFE Closing and any Subsequent Closing and the issuance of Warrants pursuant to Section 2.12.2 and shall not (x) withdraw, modify or qualify (or propose to withdraw, modify or qualify) in any adverse manner such approval from recommendation or (y) take any action or make any statement (other than any action described in the stockholders. In foregoing clause (x) in connection with the Stockholders MeetingMeeting inconsistent with such recommendation unless such action or statement is taken or made pursuant to advice from Proskauer Rose LLP, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors counsel to the BoardCompany, to the effect that such action or statement is required by applicable law. ARTICLE 7 - 17.3. The Company shall within one (1) Business Day acknowledges that time is of obtaining such stockholder approvals the essence in accordance connection with the terms performance of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementSection 6.17.

Preparation of Proxy Statement; Stockholders Meeting. As promptly as reasonably practicable following the date of this Agreement, but no later than June 25November 4, 2010, the Company shall prepare and cause to be filed with the SEC a preliminary proxy statement to be sent to the stockholders of the Company relating to the Company’s 2010 annual stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix the Agents upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix the Agents with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix The Agents shall have the opportunity to review and approve in its their reasonable discretion the proxy statement and all amendments thereto Proxy Statement and all correspondence from the Company and its representatives to the SEC related to the Company Company’s 2010 annual stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company Company’s stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 approve the Charter Amendment and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four six directors to the Board. The Company shall within one two (12) Business Day Days of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) Amendment with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) If the Company Stockholder Approval is required by applicable Law, the Company shall, as reasonably soon as practicable following the date acceptance of this Agreementshares of Company Common Stock pursuant to the Offer, but no later than June 25prepare and file with the SEC the Proxy Statement in preliminary form, 2010and each of the Company and Parent shall use its reasonable best efforts to respond as promptly as practicable to any comments of the SEC with respect thereto. The Company shall notify Parent promptly of the receipt of any comments from the SEC or its staff and of any request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall supply Parent with copies of all correspondence between the Company or any of its representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy Statement. If at any time prior to receipt of the Company Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and cause mail to its stockholders such an amendment or supplement. No filing of, or amendment to, the Proxy Statement will be filed with the SEC a preliminary proxy statement to be sent to the stockholders of made by the Company relating without providing Parent the opportunity to the Company’s stockholders meeting (together with review and comment thereon. The Company shall not mail any amendments Proxy Statement, or supplements any amendment or supplement thereto, the “Proxy Statement”)to which Parent reasonably objects. The Company shall use its reasonable best efforts to finalize cause the Proxy Statement to be mailed to the Company's stockholders as promptly as possible practicable after such filing. The Company shall promptly notify Phoenix upon the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The . (b) If the Company Stockholder Approval is required by applicable Law, the Company shall, as soon as reasonably practicable following the date acceptance of shares of Company Common Stock pursuant to the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy StatementOffer, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting Meeting") for the purpose of seeking the Company stockholder approval and to solicit such approval from the stockholdersStockholder Approval. In connection with the Stockholders Meeting, the The Company shall, through the Company Board, recommend to its stockholders that they approve give the Company Stockholder Approval. (c) If the Company Stockholders Meeting is held, Parent shall cause all shares of Company Common Stock purchased pursuant to the Offer and all other shares of Company Common Stock owned by Parent, Sub or any other subsidiary of Parent to be voted at the Company Stockholders Meeting in favor of the adoption of this Agreement and shall, after acceptance of shares of Company Common Stock pursuant to the Offer, otherwise use its reasonable best efforts to cause the Merger to be completed as soon as practicable. (d) Notwithstanding the foregoing clauses (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000), (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors ), if Sub or any other subsidiary of Parent shall acquire at least 90% of the outstanding shares of Company Common Stock, the parties shall, as soon as possible following the acceptance of shares of Company Common Stock pursuant to the Board. The Company shall within one (1) Business Day Offer, take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the expiration of obtaining such stockholder approvals the Offer without a stockholders meeting in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing RCW 23B.11.040 of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementWashington Law.

Preparation of Proxy Statement; Stockholders Meeting. (a) As soon as practicable after the date hereof, Seller shall prepare and file with the SEC a Proxy Statement. Seller and Buyer shall cooperate with each other in the preparation of the Proxy Statement and without limiting the generality of the foregoing, Seller shall consult with Buyer prior to filing the Proxy Statement (or any amendment or supplement thereto) with the SEC and shall include in the Proxy Statement any comments reasonably proposed by Buyer relating thereto. The Proxy Statement shall include the Recommendation of the Board of Directors of Seller that Seller’s stockholders authorize the Transactions contemplated by this Agreement and the Ancillary Agreements (including, for the avoidance of doubt, the approval of the change of Seller’s corporate name as contemplated herein). The Proxy Statement shall additionally include a copy of the Fairness Opinion. (b) Seller shall use its commercially reasonable efforts to respond promptly to any comments made by the SEC with respect to the Proxy Statement. Seller shall use its commercially reasonable efforts to cause the Proxy Statement to be mailed to its stockholders as promptly as reasonably practicable following the filing thereof with the SEC and the resolution of any comments thereon by the SEC. Seller shall advise Buyer promptly after it receives notice of any request by the SEC for amendment of the Proxy Statement or comments thereon and responses thereto or requests by the SEC for additional information, and Seller shall consult with Buyer prior to responding to any of the foregoing and shall consider in good faith including any reasonable comments of Buyer relating to any such responses. The Proxy Statement and any amendments or supplements to the Proxy Statement will, when filed, comply as to form in all material respects with the applicable requirements of the Exchange Act. The information supplied by Buyer for inclusion in the Proxy Statement or any amendment or supplement to the Proxy Statement, will not, on the date it is first mailed to Seller’s stockholders, on the date Seller’s stockholders vote on this Agreement and at the Closing, contain any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and will not at the time of the Seller Stockholders Meeting, omit to state any material fact necessary to correct any statement in any earlier communication with respect to the Seller Stockholders Meeting that shall have become false or misleading in any material respect. If at any time prior to the Closing Date any information relating to Seller or Buyer, or any of their respective Affiliates, officers or directors, is discovered by Seller or Buyer that should be set forth in an amendment or supplement to the Proxy Statement, so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party that discovers such information shall promptly notify the other party and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by Law, disseminated to the stockholders of Seller. (c) Seller shall, as soon as practicable after the date hereof, and in accordance with Seller’s certificate of incorporation and bylaws and Law, establish a record date (which will be as soon as practicable after the date hereof) for, duly call, and give notice of, a meeting of its stockholders (the “Seller Stockholders Meeting”) for the purpose of considering and taking action upon this Agreement and the Transactions. (d) As soon as practicable following the date on which the Proxy Statement is mailed to Seller’s stockholders, Seller shall convene and hold the Seller Stockholders Meeting. Once the Seller Stockholders Meeting has been called and noticed, except pursuant to the following sentence, Seller shall not postpone or adjourn the Seller Stockholders Meeting without the consent of this AgreementBuyer. If a quorum of stockholders has not been obtained by the scheduled date for the Seller Stockholders Meeting, but no later than June 25, 2010, the Company shall prepare and cause or supplemental or amended proxy materials are required to be filed with the SEC or disseminated to Seller’s stockholders prior to the Seller Stockholders Meeting, then Seller shall postpone or adjourn the Seller Stockholder Meeting until such time as a preliminary quorum is obtained or a period complying with Law is permitted for the filing or dissemination of such supplemental or amended proxy statement materials. In the event that the Seller Stockholders Meeting is delayed to a date after the End Date (as defined in Section 8.1(b)) as a result of any adjournment or postponement pursuant to this Section 6.3(d), then the End Date shall be sent extended to the fifth (5th) Business Day after the date on which the Sellers Stockholder Meeting is convened and a vote by the stockholders of Seller on the Company relating to proposal set forth in the Company’s stockholders meeting Proxy Statement is taken. (together e) Unless the Board of Directors of Seller has effected a Change in Recommendation in accordance with any amendments or supplements theretoSection 6.2(c), the “Proxy Statement”). The Company Seller shall use its reasonable best efforts to finalize the Proxy Statement as promptly as possible after such filing. The Company shall promptly notify Phoenix upon the receipt solicit from stockholders of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve Seller proxies in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review favor of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose approval of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the Transactions and shall take all other Transaction Documentsaction necessary or advisable to secure the Seller Stockholder Approval. Unless the Board of Directors of Seller has effected a Change in Recommendation in accordance with Section 6.2(c), Seller shall use its reasonable best efforts, including by attending in person meetings, participating in phone conferences and providing requested information, to cause any proxy advisory firms advising their clients in connection with the Exchange AgreementSeller Stockholders Meeting to recommend that client stockholders vote in favor of the approval of this Agreement and the transactions contemplated hereby.

Preparation of Proxy Statement; Stockholders Meeting. As Subject to Section 4.4 of the Company Disclosure Schedule: (a) The Company shall use reasonable diligence to take all action necessary under all Applicable Laws and the Company’s certificate of incorporation and bylaws to prepare a proxy statement relating to the adoption of this Agreement by the stockholders of the Company (the “Proxy Statement”) and cause the Proxy Statement to be mailed to the Company’s stockholders with the mailing to occur promptly as reasonably practicable following after the date of this Agreement, hereof but in no event later than June 25forty-five (45) days after the date hereof (subject to such further extensions as may be necessary to comply with Applicable Law). Subject to Section 4.7, 2010the Company Recommendation shall be included in the Proxy Statement. Parent and Merger Sub shall promptly furnish to the Company all information concerning Parent and Merger Sub required to be set forth in the Proxy Statement or reasonably requested by the Company for inclusion therein. Each of Parent and Merger Sub shall promptly correct any information provided by it for use in the Proxy Statement if and to the extent that such information shall have become false or misleading in any material respect and to correct any material omissions therein. If at any time prior to receipt of the vote of holders of a majority of the outstanding shares of Common Stock (the “Company Stockholder Approval”), there shall be discovered any error or occur any event that should be corrected or set forth in an amendment or supplement to the Proxy Statement, the Company shall promptly prepare and cause disseminate its stockholders such an amendment or supplement. The Company shall provide Parent and its counsel a reasonable opportunity to be filed with review the SEC a preliminary proxy statement Proxy Statement prior to be sent its being mailed to the stockholders of the Company relating and shall provide Parent and their counsel a reasonable opportunity to review all amendments and supplements to the Proxy Statement, and, in any case, shall give due consideration to all reasonable additions, deletions or changes suggested thereto by Parent. (b) In performing its obligations pursuant to Section 4.4(a) above, the Company shall take all action necessary under all Applicable Laws and the Company’s certificate of incorporation and bylaws (1) to establish a record date for purposes of determining stockholders entitled to notice of and to vote at the Stockholder’s Meeting (the “Record Date”) and (2) to call, give notice of and hold a meeting of the holders of the shares of Common Stock to vote on the adoption of this Agreement (together with including any amendments adjournment or supplements theretopostponement thereof, the “Proxy StatementStockholders’ Meeting”). The Company shall use its reasonable best efforts to finalize ensure that all proxies solicited by the Proxy Statement Company in connection with the Stockholders’ Meeting are solicited in material compliance with all Applicable Laws. The adoption of this Agreement and the annual election of directors (as promptly well as possible after such filingany adjournment or other procedural proposals or matters incidental to any of the foregoing) shall be the only matters which the Company shall propose to be acted on by the stockholders of the Company at the Stockholders’ Meeting without the prior consent of Parent. The Company shall promptly notify Phoenix upon may adjourn or postpone the receipt of any comments from the SEC or any request from the SEC for amendments or supplements to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from Stockholders’ Meeting (i) if the Company and its representatives determines in good faith that it is necessary or advisable under Applicable Law in order to give the SEC related to stockholders of the Company stockholders meeting (the “Stockholders Meeting”) prior sufficient time to filing evaluate any additional information or disclosure in connection with the SEC. The matters to be voted on thereat, so long as the Company shallconsults with Parent in connection with making such determination, (ii) if as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies time for which the Company that it will not review Stockholders’ Meeting is originally scheduled (as set forth in the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized there are insufficient shares of Common Stock represented (either in person or by proxy) to 519,000,000 and (ii) its authorized shares constitute a quorum necessary to conduct the business of Preferred Stock to 16,000,000the Stockholders’ Meeting, (biii) to allow additional solicitation of votes in order to obtain the Amended and Restated Certificate of Designation Company Stockholder Approval, (Series A-1iv) and to a date not later than five (c) elect four directors to the Board. The Company shall within one (15) Business Day of obtaining such stockholder approvals in accordance with Days following any date on which the Company and Parent have agreed to improvements to the terms of this Agreementthe Transactions proposed by Parent pursuant to Section 4.7(d), the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series Bv) and the Amended and Restated Certificate of Designation (Series A-1) otherwise with the Secretary consent of State Parent (such consent not to be unreasonably withheld or delayed so long as the purpose of the State of Delaware) to effect approvals and consummate such requested consent is not inconsistent with the transactions contemplated by this Agreement). The Company shall not otherwise (without Parent’s prior written consent) adjourn, postpone or cancel (or propose to adjourn, postpone or cancel) the Stockholders’ Meeting, except to the extent required to obtain the Company Stockholder Approval. (c) Parent and Merger Sub shall cause all shares of Common Stock owned by Parent, Merger Sub or any of their affiliates on the applicable Record Date to be voted in favor of the adoption of this Agreement and at the other Transaction Documents, including the Exchange AgreementStockholders’ Meeting.

Preparation of Proxy Statement; Stockholders Meeting. As (a) If approval of the Stockholders is required by applicable Law to consummate the Merger, then as promptly as reasonably practicable following the purchase of Shares pursuant to the Offer (and in any event within 15 Business Days after the date of this Agreement, but no later than June 25, 2010thereof), the Company shall prepare file a Proxy Statement with the SEC in preliminary form as required by the Exchange Act, and cause to be filed Parent shall file with the SEC a preliminary proxy statement to be sent post-effective amendment to the stockholders Registration Statement (the "Post-Effective Amendment") for the offer and sale of shares of Parent Common Stock pursuant to the Merger and in which the Proxy Statement will be included. Each of the Company relating and Parent shall use its reasonable best efforts to have the Company’s stockholders meeting (together with any amendments or supplements theretoPost-Effective Amendment declared effective under the Securities Act as promptly as practicable after such filing, and the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize cause the Proxy Statement in definitive form to be mailed to the Stockholders as promptly as possible practicable after such filingthe Post-Effective Amendment is declared effective under the Securities Act. The Parent shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities Laws in connection with the issuance of Parent Shares in the Merger and the Company shall promptly notify Phoenix upon furnish all information concerning the receipt Company and the holders of capital stock of the Company as may be reasonably requested in connection with any comments from such action and the preparation, filing and distribution of the Proxy Statement. No filing of, or amendment or supplement to, or correspondence with the SEC or any request from its staff with respect to, the SEC for amendments Post-Effective Amendment will be made by Parent, or supplements with respect to the Proxy Statement and shall provide Phoenix with copies of all correspondence between it and its representativeswill be made by the Company, on the one hand, and the SEC, on without providing the other hand. Phoenix shall have the party a reasonable opportunity to review and approve comment thereon. Parent will advise the Company, promptly after it receives notice thereof, of the time when the Post-Effective Amendment has become effective or any supplement or amendment has been filed, the issuance of any stop order, the suspension of the qualification of the Parent Common Stock issuable in its reasonable discretion connection with the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to Merger for offering or sale in any jurisdiction, or any request by the SEC related to for the Company stockholders meeting (amendment of the “Stockholders Meeting”) prior to filing with Post-Effective Amendment or comments thereon and responses thereto or requests by the SECSEC for additional information. The Company shallwill advise Parent, as soon as reasonably practicable following the date promptly after it receives notice thereof, of any request by the SEC completes review for the amendment of the Proxy Statement or notifies comments thereon and responses thereto or requests by the SEC for additional information. If at any time prior to the Effective Time any information relating to the Company or Parent, or any of their respective Affiliates, officers or directors, should be discovered by the Company or Parent that it will not review should be set forth in an amendment or supplement to either of the Post-Effective Amendment or the Proxy Statement, so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and, to the extent required by applicable Law, disseminated to the Stockholders. Parent shall cause all Shares purchased pursuant to the Offer and all other Shares owned beneficially or of record by Parent, Merger Sub or any other Subsidiary of Parent to be voted in favor of the approval of the Merger and adoption of the Merger at the Company Stockholders' Meeting or any postponement or adjournment thereof. (b) If approval of the Stockholders is required by applicable Law to consummate the Merger, then as promptly as practicable following the date upon which the Post-Effective Amendment becomes effective, the Company shall establish a record date for, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a special meeting of its Stockholders (the Stockholders Meeting "Company Stockholders' Meeting") solely for the purpose of seeking obtaining the Company stockholder approval and to solicit such approval from Stockholder Approval. Except in the stockholders. In connection with the Stockholders Meetingcase of an Adverse Recommendation Change specifically permitted by Section 6.2(b), the Company shallCompany, through the Company Board, shall (i) recommend to its stockholders Stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by adopt this Agreement and the transactions contemplated hereby, (ii) include such recommendation in the Proxy Statement and (iii) publicly reaffirm such recommendation within 24 hours after a request to do so by Parent or Merger Sub. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.3(b) shall not be affected by the commencement, public proposal, public disclosure or communication to the Company or any other Transaction DocumentsPerson of any Acquisition Proposal or the occurrence of any Adverse Recommendation Change. (c) Notwithstanding the foregoing clauses (a) and (b), including if following the Exchange Agreementexpiration of the Offer or the exercise of the Top-Up Option, Parent, Merger Sub or any other direct or indirect Subsidiary of Parent shall collectively hold at least 90% of the outstanding Shares, each of Parent, Merger Sub and the Company shall (subject to Section 7.1) take all necessary and appropriate action to cause the Merger to become effective as soon as practicable after the consummation of the purchase of the Shares without a meeting of Stockholders of the Company, in accordance with Section 253 of the DGCL.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly as reasonably practicable following the date of this Agreementhereof, but no later than June 25GBC, 2010, the Company Fortune and ACCO shall prepare and cause to be filed GBC shall file with the SEC a preliminary proxy statement materials which shall constitute the Proxy Statement/Prospectus to be sent mailed to the stockholders of the Company relating to the CompanyGBC’s stockholders meeting in connection with the GBC Stockholders Meeting (together with such proxy statement/prospectus, and any amendments or supplements thereto, the “Proxy Statement/Prospectus”) and Fortune, ACCO and GBC shall prepare and ACCO shall file with the SEC a registration statement on Form S-4 with respect to the issuance of ACCO Common Stock in the Merger (the “Form S-4”). The Company Proxy Statement/Prospectus will be included in and will constitute a part of the Form S-4 as ACCO’s prospectus and will be mailed to Fortune’s stockholders as an Information Statement in connection with the Distribution. The Form S-4 and the Proxy Statement/Prospectus will comply as to form in all material respects with the requirements of the Exchange Act and the Securities Act and the rules and regulations of the SEC thereunder. GBC shall use its reasonable best efforts to finalize have the Proxy Statement Statement/Prospectus cleared by the SEC as promptly as possible reasonably practicable after such filingfiling with the SEC and ACCO shall use reasonable best efforts to have the Form S-4 declared effective by the SEC as promptly as reasonably practicable after filing with the SEC and to keep the Form S-4 effective as long as is necessary to consummate the Merger and the transactions contemplated thereby. The Company shall GBC, Fortune and ACCO shall, as promptly notify Phoenix upon the as practicable after receipt thereof, provide to each other copies of any written comments from the SEC or and advise each other of any request from the SEC for amendments or supplements oral comments with respect to the Proxy Statement Statement/Prospectus and the Form S-4 received from the SEC. GBC shall provide Phoenix Fortune and ACCO with copies a reasonable opportunity to review and comment on any amendment or supplement to the Proxy Statement/Prospectus prior to filing such with the SEC, and with a copy of all correspondence between such filings made with the SEC. ACCO shall provide GBC and Fortune with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 prior to filing such with the SEC, and with a copy of all such filings made with the SEC. Notwithstanding any other provision herein to the contrary, no amendment or supplement to the Proxy Statement/Prospectus or the Form S-4 shall be made without the approval of both Fortune and GBC, which approval shall not be unreasonably withheld or delayed. GBC will use reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to GBC’s stockholders, and Fortune will use reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to Fortune’s stockholders, in each case as promptly as practicable after the Proxy Statement/Prospectus is cleared by the SEC and the Form S-4 is declared effective under the Securities Act. ACCO shall also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or to file a general consent to service of process) required to be taken under any applicable state securities laws in connection with the issuance of ACCO Common Stock in the Merger and its representativesGBC and Fortune shall furnish all information concerning GBC and Fortune and the holders of GBC Common Stock, GBC Class B Common Stock and Fortune Common Stock as may be reasonably requested in connection with any such action. Each of Fortune and ACCO, on the one hand, and the SECGBC, on the other hand. Phoenix shall have , will advise the opportunity to review and approve in its reasonable discretion other, promptly after it receives notice thereof, of the proxy statement and all amendments thereto and all correspondence from time when the Company and its representatives Form S-4 has become effective, the issuance of any stop order with respect to the Form S-4, the suspension of the qualification of the ACCO Common Stock issuable in connection with the Merger for offering or sale in any jurisdiction, or any request by the SEC related for amendment of the Proxy Statement/Prospectus or the Form S-4. If at any time prior to the Company Effective Time any information relating to GBC or ACCO, or any of their respective affiliates, officers or directors, should be discovered by GBC, Fortune or ACCO which should be set forth in an amendment or supplement to the Form S-4 or the Proxy Statement/Prospectus so that any of such documents would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by Applicable Laws, an appropriate amendment or supplement describing such information shall be promptly filed with the SEC and disseminated to the stockholders of GBC and Fortune. (b) GBC shall duly take all lawful action to call, give notice of, convene and hold a meeting of its stockholders on a date determined in accordance with the mutual agreement of GBC and Fortune (the “GBC Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and obtaining the Required GBC Vote with respect to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and shall take all lawful action to solicit the other Transaction Documentsapproval and adoption of this Agreement and the Merger by the Required GBC Vote, including and the Exchange AgreementBoard of Directors of GBC shall recommend approval and adoption of this Agreement and the Merger by the stockholders of GBC to the effect as set forth in Section 5.1(f) (the “GBC Recommendation”), and shall not withdraw, modify or qualify (or propose to withdraw, modify or qualify) such recommendation (a “Change in the GBC Recommendation”); provided, however, that the Board of Directors of GBC may make a Change in the GBC Recommendation pursuant to Section 7.5. Subject to clause (v) of Section 7.5(c), notwithstanding any Change in the GBC Recommendation, this Agreement shall be submitted to the stockholders of GBC at the GBC Stockholders Meeting for the purpose of approving and adopting this Agreement and the Merger and nothing contained herein shall be deemed to relieve GBC of such obligation.

Preparation of Proxy Statement; Stockholders Meeting. As (a) The Company shall, as reasonably promptly as reasonably practicable following the date of this Agreement, but no later than June 25forty-five (45) days after the date of this Agreement, 2010, the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to the stockholders form, and each of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company and Parent shall use its reasonable best efforts to finalize the Proxy Statement respond as promptly as possible after such filingpracticable to any comments of the SEC with respect thereto. The Company shall promptly notify Phoenix upon Parent of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix promptly supply Parent with copies of all material correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix The Company (i) shall have the provide Parent with a reasonable opportunity to review and approve in its reasonable discretion comment on the proxy statement Proxy Statement and all amendments any amendment thereto and all or material correspondence from the Company and its representatives to with the SEC related to regarding the Company stockholders meeting Proxy Statement and (the “Stockholders Meeting”ii) prior to filing with the SECshall consider all comments reasonably proposed by Parent. The Company shall, as soon as reasonably practicable following the date the SEC completes review of shall not modify any information supplied by Parent or Merger Sub that is included in or incorporated by reference in the Proxy Statement or notifies without the Parent’s prior consent. The Company that it will not review shall use its reasonable efforts to cause the Proxy Statement, duly call and give notice Statement to be mailed to the Company Company’s stockholders as promptly as practicable after filing with and completion of review by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and SEC. (b) Subject to solicit such approval from the stockholders. In connection with the Stockholders Meetingapplicable Law, the Company shall, through as promptly as practicable following the Boarddate of this Agreement, recommend to duly call, give notice of, convene and hold a meeting of its stockholders that they approve (athe “Company Stockholders’ Meeting”) an increase for the purpose of obtaining the Company Stockholder Approval. Except as provided in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000Section 5.02(c), (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to Proxy Statement shall include the BoardBoard Recommendation. The Company shall within one (1) Business Day of obtaining such stockholder approvals in accordance with not postpone the terms Company Stockholder Meeting or adjourn the Company Stockholder Meeting without having taken a vote on the approval and adoption of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing other than as a result of the Charter Amendment, the Certificate absence of Designation (Series Ba quorum) and the Amended and Restated Certificate of Designation (Series A-1) without prior consultation with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementParent.

Preparation of Proxy Statement; Stockholders Meeting. As promptly (a) Subject to the last sentence of Section 6.01(b), the Company shall, as reasonably soon as practicable following the date expiration of this Agreementthe Offer and the purchase of the shares of Company Common Stock pursuant thereto, but no later than June 25, 2010, the Company shall prepare and cause to be filed file with the SEC a the Proxy Statement in preliminary proxy statement to be sent to the stockholders form, and each of the Company relating Company, Parent and Sub shall use their best efforts to respond as promptly as practicable to any comments of the Company’s stockholders meeting (together SEC with any amendments or supplements respect thereto, the “Proxy Statement”). The Company shall use its reasonable best efforts to finalize the Proxy Statement as notify Parent promptly as possible after such filing. The Company shall promptly notify Phoenix upon of the receipt of any comments from the SEC or its staff and of any request from by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and shall provide Phoenix supply Parent with copies of all correspondence between it and the Company or any of its representatives, on the one hand, and the SECSEC or its staff, on the other hand, with respect to the Proxy Statement. Phoenix shall have the opportunity If at any time prior to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from receipt of the Company and its representatives Stockholder Approval there shall occur any event that should be set forth in an amendment or supplement to the SEC related Proxy Statement, the Company shall promptly prepare and mail to its stockholders such an amendment or supplement. The Company shall not mail any Proxy Statement, or any amendment or supplement thereto, to which Parent reasonably objects. The Company shall use its best efforts to cause the Proxy Statement to be mailed to the Company Company's stockholders meeting (the “Stockholders Meeting”) prior to as promptly as practicable after filing with the SEC. . (b) The Company shall, as soon as reasonably practicable following the date the SEC completes review expiration of the Proxy Statement or notifies Offer and the purchase of the shares of Company that it will not review the Proxy StatementCommon Stock pursuant thereto, duly call and call, give notice to the Company stockholders by mailing the definitive Proxy Statementof, convene and hold a meeting of its stockholders (the "Company Stockholders Meeting Meeting") for the purpose of seeking the Company stockholder approval and Stockholder Approval. Subject to solicit such approval from the stockholders. In connection with the Stockholders MeetingSection 5.02(b), the Company shall, through the Company Board, recommend to its stockholders that they approve (agive the Company Stockholder Approval. Without limiting the generality of the foregoing, the Company agrees that its obligations pursuant to the first sentence of this Section 6.01(b) an increase in (i) its authorized shall not be affected by the commencement, public proposal, public disclosure or communi- cation to the Company of any Company Takeover Proposal. Notwithstanding the foregoing, if Sub or any other subsidiary of Parent shall acquire at least 90% of the outstanding shares of Common Stock each series of Company Capital Stock, the parties shall, at the request of Parent, take all necessary and appropriate action to 519,000,000 and (ii) its authorized shares cause the Merger to become effective as soon as practicable after the expiration of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate Offer without a stockholders meeting in accordance with Section 253 of Designation (Series A-1) and the DGCL. (c) elect four directors Parent shall cause all shares of Company Common Stock purchased pursuant to the Board. The Offer and all other shares of Company shall within one (1) Business Day Common Stock owned by Parent, Sub or any other subsidiary of obtaining such stockholder approvals Parent to be voted in accordance with favor of the terms approval of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreement.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following after the date of this Agreementhereof (and in any event, but no later than June 25subject to Parent's timely performance of its obligations under Section 4.4(b), 2010within fifteen (15) Business Days hereof), the Company shall prepare and shall cause to be filed with the SEC in preliminary form a preliminary proxy statement to be sent to the stockholders of the Company on Schedule 14A relating to the Company’s stockholders meeting Stockholders' Meeting (together with any amendments thereof or supplements thereto, the "Proxy Statement"). Except as expressly contemplated by Section 4.2(e), the Proxy Statement shall include the Company Recommendation, the Fairness Opinion and any materials required to be provided to stockholders pursuant to the DGCL. The Company will cause the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the “time of the Stockholders' Meeting, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by the Company with respect to information supplied by Parent or Merger Sub for inclusion or incorporation by reference in the Proxy Statement”). The Company shall use its reasonable best efforts to finalize cause the Proxy Statement as promptly as possible after such filingto comply in all material respects with the provisions of the Exchange Act and the rules and regulations promulgated thereunder and to satisfy all rules of NASDAQ. The Company shall promptly notify Phoenix Parent and Merger Sub upon the receipt of any comments comments, whether written or oral, from the SEC or the staff of the SEC, or any request from the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement Statement, and shall provide Phoenix Parent and Merger Sub with copies of all correspondence between it the Company and its representativesRepresentatives, on the one hand, and the SEC or the staff of the SEC, on the other hand. Phoenix The Company shall have use its commercially reasonable efforts to respond as promptly as reasonably practicable to any comments of the SEC or the staff of the SEC with respect to the Proxy Statement, and the Company shall consult with Parent and its counsel prior to submitting to the SEC or the staff of the SEC any response to any such comments. Prior to the filing of the Proxy Statement or the dissemination thereof to the holders of Shares, or submitting to the SEC or the staff of the SEC any response to any comments of the SEC or the staff of the SEC with respect thereto, the Company shall provide Parent and Merger Sub and their counsel a reasonable opportunity to review and approve in its reasonable discretion the proxy statement comment on such documents and all amendments thereto responses, and all correspondence from the Company and will consider, in good faith, incorporating any such comments of Parent and/or its representatives counsel prior to the SEC related such filing, dissemination or submission. (b) Parent shall provide to the Company stockholders in writing all information concerning Parent and Merger Sub as may be reasonably requested by the Company in connection with the Proxy Statement and shall otherwise assist and cooperate with the Company in the preparation of the Proxy Statement and resolution of comments of the SEC or its staff related thereto. Parent will cause the information relating to Parent or Merger Sub supplied by it for inclusion in the Proxy Statement, at the time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Stockholders' Meeting, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by Parent or Merger Sub with respect to information supplied by the Company for inclusion or incorporation by reference in the Proxy Statement. Parent will furnish to the Company in writing the information relating to it and Merger Sub required by the Exchange Act to be set forth in the Proxy Statement promptly following written request therefor from the Company. (c) As promptly as practicable after the Proxy Statement Clearance Date, the Company shall, in accordance with applicable Law, its constituent documents and the rules of NASDAQ (i) establish a record date for and give notice of a meeting of Company Stockholders, for the purpose of voting upon the approval of this Agreement (the “"Stockholders' Meeting"), and (ii) mail to the holders of Shares as of the record date established for the Stockholders' Meeting a Proxy Statement (the date the Company elects to take such action or is required to take such action, the "Proxy Date"). The Company shall duly call, convene and hold the Stockholders' Meeting as promptly as reasonably practicable after the Proxy Date; provided, however, that in no event shall such meeting be held later than thirty-five (35) days following the date the Proxy Statement is mailed to the Company Stockholders Meeting”) other than in the case in which the Company is required to allow reasonable additional time for the filing and mailing of any supplemental or amended disclosure which the SEC or its staff or a court of competent jurisdiction has instructed the Company is necessary under applicable Law or Order and for such supplemental or amended disclosure to be disseminated and reviewed by the holders of Shares prior to filing the Stockholders' Meeting. Notwithstanding anything to the contrary contained in this Agreement, the Company (A) shall adjourn or postpone the Stockholders' Meeting 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) to constitute a quorum necessary to conduct the business of the Stockholders' Meeting or insufficient proxies returned to obtain the Company Stockholder Approval, and Parent requests such an adjournment or postponement, and (B) may otherwise only adjourn or postpone the Stockholders' Meeting after consultation with Parent, and with Parent's consent (not to be unreasonably withheld, conditioned or delayed), to the extent necessary to ensure that any required supplement or amendment to the Proxy Statement is provided to the Company Stockholders within a reasonable amount of time in advance of the Stockholders' Meeting. Once the Company has established a record date for the Stockholders' Meeting, the Company shall not change such record date or establish a different record date for the Stockholders' Meeting without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), unless required to do so by applicable Law or the Company Charter Documents. The Company shall ensure that all proxies solicited in connection with the SECStockholders' Meeting are solicited in compliance with all applicable Laws (including all applicable rules of NASDAQ) and, unless the Company Board shall have made a Change in Recommendation in accordance with Section 4.2(e), the Company shall use its reasonable best efforts to solicit proxies from the holders of Shares for the adoption of this Agreement. Notwithstanding any Change in Recommendation, unless this Agreement shall have been terminated in accordance with its terms, the Company shall (x) submit this Agreement to the holders of Shares as promptly as reasonably practicable for the purpose of obtaining the Company Stockholder Approval at the Stockholders' Meeting and (y) not submit any Takeover Proposal for approval by the shareholders of the Company. The Company shall, as soon as reasonably practicable following upon the reasonable request of Parent, advise Parent in writing at least on a daily basis on each of the last ten (10) Business Days prior to the date the SEC completes review of the Proxy Statement or notifies Stockholders' Meeting as to the aggregate tally of proxies received by the Company that it will not review with respect to the Company Stockholder Approval. (d) If at any time prior to the Effective Time any event or circumstance relating to the Company or any of its Subsidiaries or its or their respective officers or directors is known by the Company which, pursuant to the Securities Act or Exchange Act, should be set forth in an amendment or a supplement to the Proxy Statement, duly call and give notice to the Company stockholders shall promptly inform Parent. Each of Parent, Merger Sub and the Company agree to correct any information provided by mailing it for use in the definitive Proxy StatementStatement which shall have become false or misleading. (e) Each of Parent and Merger Sub shall affirmatively vote at the Stockholders' Meeting or otherwise all Shares beneficially owned by it or any of its respective Subsidiaries as of the applicable record date, convene and hold the Stockholders Meeting for the purpose approval of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and (c) elect four directors to the Board. The Company shall within one (1) Business Day of obtaining such stockholder approvals this Agreement in accordance with applicable Law. Parent shall vote all of the terms shares of capital stock of Merger Sub beneficially owned by it, or sign a written consent in lieu of a meeting of the stockholders of Merger Sub, in favor of the adoption of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing of the Charter Amendment, the Certificate of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) in accordance with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange Agreementapplicable Law.

Preparation of Proxy Statement; Stockholders Meeting. (a) As promptly soon as reasonably practicable following the date of this Agreement, but no later than June 25the Company, 2010acting through the Company Board, shall in accordance with applicable Law, the Company Charter, the Company Bylaws and the NASDAQ Stock Market ("NASDAQ") rules: (i) duly call, give notice of, convene and hold a meeting of its stockholders as promptly as practicable following clearance with the SEC of the Proxy Statement for the purpose of securing the Company Stockholder Approval (such meeting, and any postponement or adjournment thereof, the "Company Stockholders Meeting"), (ii) except to the extent that the Company Board has effected or effects a Company Adverse Recommendation Change in accordance with the terms of Section 7.03(e), the Company shall, through the Company Board, advise and recommend to its stockholders the approval of the Merger (the "Merger Recommendation") and shall include such recommendation in the Proxy Statement and (iii) use its commercially reasonable efforts to solicit from holders of shares of Company Common Stock proxies in favor of the adoption of this Agreement and take all other action necessary or advisable to secure, at the Company Stockholders' Meeting, the Company Stockholder Approval. (b) As soon as reasonably practicable following the date of this Agreement, the Company shall (i) prepare and cause to be filed file with the SEC Amendment Number 2 to the preliminary Proxy Statement (File No. 000-20022), which filing shall be no later than 10 days following the date of this Agreement, (ii) mail to its stockholders the Proxy Statement a preliminary proxy statement sufficient time prior to the Company Stockholders Meeting, which shall be held no later than 45 days after the date that the Company is able to file its definitive Proxy Statement with the SEC, and (iii) otherwise comply in all material respects with all legal requirements applicable to the Company Stockholders Meeting. Parent, MergerSub and the Company will cooperate and consult with each other in the preparation of the Proxy Statement. Without limiting the generality of the foregoing, each of Parent and MergerSub will furnish as soon as reasonably practicable to the Company the information relating to it required by the Exchange Act and the rules and regulations promulgated thereunder to be sent to set forth in the stockholders of the Company relating to the Company’s stockholders meeting (together with any amendments or supplements thereto, the “Proxy Statement”). The Company shall use its commercially reasonable best efforts to finalize resolve all SEC comments (in consultation with Parent) with respect to the Proxy Statement as promptly as possible practicable after receipt thereof and to cause the Proxy Statement to be mailed to the Company's Stockholders as promptly as practicable after the Proxy Statement is cleared with the SEC. Notwithstanding anything to the contrary stated above, prior to filing or mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, the Company shall provide Parent and Merger Sub with a reasonable opportunity to review and comment on the Proxy Statement or such filingresponse and shall include in such documents or response comments reasonably proposed by Parent and Merger Sub. Each of Parent, MergerSub and the Company agree to correct as soon as reasonably practicable any information provided by it for use in the Proxy Statement which shall have become false or misleading. If at any time prior to the Effective Time, any information should be discovered by any party which should be set forth in an amendment or supplement to the Proxy Statement so that the Proxy Statement would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, the party which discovers such information shall promptly notify the other parties hereto and, to the extent required by applicable Law, an appropriate amendment or supplement describing such information shall be promptly filed by the Company with the SEC and disseminated by the Company to the stockholders of the Company. The Company shall as promptly as practicable (i) notify Phoenix upon Parent and MergerSub of the receipt of any oral or written comments from the SEC or any request from the SEC for amendments or supplements with respect to the Proxy Statement and shall any request by the SEC for any amendment to the Proxy Statement or for additional information and (ii) provide Phoenix Parent with copies of all written correspondence between it the Company and its representativesRepresentatives, on the one hand, and the SEC, on the other hand. Phoenix shall have the opportunity , with respect to review and approve in its reasonable discretion the proxy statement and all amendments thereto and all correspondence from the Company and its representatives to the SEC related to the Company stockholders meeting (the “Stockholders Meeting”) prior to filing with the SEC. The Company shall, as soon as reasonably practicable following the date the SEC completes review of the Proxy Statement or notifies the Company that it will not review the Proxy Statement, duly call and give notice to the Company stockholders by mailing the definitive Proxy Statement, convene and hold the Stockholders Meeting for the purpose of seeking Company stockholder approval and to solicit such approval from the stockholders. In connection with the Stockholders Meeting, the Company shall, through the Board, recommend to its stockholders that they approve (a) an increase in (i) its authorized shares of Common Stock to 519,000,000 and (ii) its authorized shares of Preferred Stock to 16,000,000, (b) the Amended and Restated Certificate of Designation (Series A-1) and . (c) elect four directors At the Company Stockholders' Meeting, Parent shall vote, and Parent shall cause each of its Subsidiaries to the Board. The vote, all shares of Company shall within one (1) Business Day Common Stock beneficially owned by each of obtaining such stockholder approvals Parent and Parent's Subsidiaries in accordance with the terms of this Agreement, the Exchange Agreement and the Investor Rights Agreement, take all requisite actions (including the filing favor of the Charter Amendment, the Certificate adoption and approval of Designation (Series B) and the Amended and Restated Certificate of Designation (Series A-1) with the Secretary of State of the State of Delaware) to effect approvals and consummate the transactions contemplated by this Agreement and the other Transaction Documents, including the Exchange AgreementMerger.