AS PRACTICABLE AND NO LATER
THAN TWENTY (20) BUSINESS DAYS AFTER THE DATE HEREOF, PARENT AND THE COMPANY
SHALL PREPARE, AND PARENT SHALL FILE WITH THE SEC, THE REGISTRATION STATEMENT,
IN WHICH THE PROXY STATEMENT/PROSPECTUS WILL BE INCLUDED AS PART THEREOF.
PARENT AND THE COMPANY SHALL USE ALL COMMERCIALLY REASONABLE BEST EFFORTS TO
HAVE SUCH REGISTRATION STATEMENT DECLARED EFFECTIVE UNDER THE SECURITIES ACT AS
PROMPTLY AS PRACTICABLE AFTER FILING.
THE PROXY STATEMENT/PROSPECTUS WILL, WHEN
PREPARED PURSUANT TO THIS SECTION 5.2 AND MAILED TO THE COMPANY'S STOCKHOLDERS,
COMPLY IN ALL MATERIAL RESPECTS WITH THE APPLICABLE REQUIREMENTS OF THE EXCHANGE
ACT AND THE SECURITIES ACT.
THE PROXY STATEMENT/PROSPECTUS SHALL BE REVIEWED
AND APPROVED BY PARENT AND PARENT'S COUNSEL PRIOR TO THE MAILING OF SUCH PROXY
STATEMENT/PROSPECTUS TO THE COMPANY'S STOCKHOLDERS.
PARENT SHALL ALSO TAKE ANY
ACTION REQUIRED TO BE TAKEN UNDER ANY APPLICABLE PROVINCIAL OR STATE SECURITIES
LAWS (INCLUDING "BLUE SKY" LAWS) IN CONNECTION WITH THE ISSUANCE OF THE PARENT
COMMON STOCK IN THE MERGER; PROVIDED, HOWEVER, THAT NEITHER PARENT NOR THE
COMPANY SHALL BE REQUIRED TO REGISTER OR QUALIFY AS A FOREIGN CORPORATION OR TO
TAKE ANY ACTION THAT WOULD SUBJECT IT TO SERVICE OF PROCESS IN ANY JURISDICTION
WHERE ANY SUCH ENTITY IS NOT NOW SO SUBJECT, EXCEPT AS TO MATTERS AND
TRANSACTIONS ARISING SOLELY FROM THE OFFER AND SALE OF PARENT COMMON STOCK OR
THE ASSUMED COMPANY OPTIONS.
5.3.
COMPANY STOCKHOLDER MEETING.
THE COMPANY SHALL,
PROMPTLY AFTER THE DATE HEREOF, TAKE ALL ACTION NECESSARY IN ACCORDANCE WITH THE
DGCL AND ITS CERTIFICATE OF INCORPORATION AND BYLAWS TO CONVENE THE COMPANY
STOCKHOLDERS MEETING WITHIN 45 DAYS OF THE REGISTRATION STATEMENT BEING DECLARED
EFFECTIVE BY THE SEC, WHETHER OR NOT THE COMPANY BOARD DETERMINES AT ANY TIME
AFTER THE DATE HEREOF THAT THE MERGER IS NO LONGER ADVISABLE.
THE ADOPTION OF
THE MERGER BY
27
THE STOCKHOLDERS OF THE COMPANY SHALL BE RECOMMENDED BY THE COMPANY BOARD
UNLESS, IN THE GOOD FAITH JUDGMENT OF THE COMPANY BOARD, AFTER CONSULTATION WITH
OUTSIDE COUNSEL, TAKING SUCH ACTION WOULD BE INCONSISTENT WITH ITS FIDUCIARY
OBLIGATIONS UNDER APPLICABLE LAW.
THE COMPANY STOCKHOLDERS MEETING WILL BE
CONVENED, HELD AND CONDUCTED, AND ANY PROXIES WILL BE SOLICITED, IN COMPLIANCE
WITH THE DGCL AND APPLICABLE SECURITIES LAWS.
THE COMPANY SHALL CONSULT WITH
PARENT REGARDING THE DATE OF THE COMPANY STOCKHOLDERS MEETING.
SUBJECT TO
SECTION 5.2 AND SECTION 5.6 HEREOF, THE COMPANY SHALL USE COMMERCIALLY
REASONABLE BEST EFFORTS TO SOLICIT FROM STOCKHOLDERS OF THE COMPANY PROXIES IN
FAVOR OF THE MERGER AND SHALL TAKE ALL OTHER COMMERCIALLY REASONABLE ACTIONS
NECESSARY OR ADVISABLE TO SECURE THE VOTE OR CONSENT OF STOCKHOLDERS REQUIRED TO
EFFECT THE MERGER.
5.4.
Additional Agreements; Cooperation.
(A)
SUBJECT TO THE TERMS AND CONDITIONS HEREIN
PROVIDED, EACH OF THE PARTIES HERETO AGREES TO USE ITS COMMERCIALLY REASONABLE
BEST EFFORTS TO TAKE, OR CAUSE TO BE TAKEN, ALL ACTION AND TO DO, OR CAUSE TO BE
DONE, ALL THINGS NECESSARY, PROPER OR ADVISABLE TO CONSUMMATE AND MAKE EFFECTIVE
AS PROMPTLY AS PRACTICABLE THE TRANSACTIONS CONTEMPLATED BY THIS