The Merger Agreement contains customary representations and warranties from both the Company, on the one
hand, and the Parent and the Purchaser, on the other hand. It also contains customary covenants, including covenants providing for the Company to (i) cause each of the Company and its subsidiaries to conduct its business and operations in the
ordinary course and in accordance in all material respects with past practice; (ii) not to engage in specified types of transactions during such period; and (iii) not (a) solicit, initiate, or knowingly facilitate or knowingly encourage
any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an alternative acquisition proposal, (b) engage in, continue or otherwise participate in any discussions or negotiations
regarding, or furnish to any other person any non-public information in connection with an alternative acquisition proposal or any proposal or offer that would reasonably be expected to lead to an alternative
acquisition proposal, (c) adopt any resolution for the purpose of exempting any person (other than Parent and its subsidiaries) from the restriction on business combinations or any similar provision contained in applicable
anti-takeover law or the Companys organizational or other governing documents or (d) enter into any letter of intent, contract, commitment or agreement in principle with respect to an alternative acquisition proposal.
The Merger Agreement contains customary termination rights for both the Parent and the Purchaser, on the one hand, and the Company, on the other hand,
including, among others, for failure to consummate the Offer on or before October 9, 2022 (the End Date). If the Merger Agreement is terminated under certain circumstances specified in the Merger Agreement (including under
specified circumstances in connection with the Companys entry into an agreement with respect to a Superior Offer (as defined in the Merger Agreement)), the Company will be required to pay the Parent a termination fee of $7,227,181.80. In
addition, if the Merger Agreement is terminated by the Parent or the Company because the acceptance time for the tender offer did not occur prior to the End Date or the tender offer expires in accordance with its terms without the Purchaser
purchasing any shares of Common Stock, the Company will be required to reimburse Parent for certain transaction expenses, not to exceed $1,500,000.
The
foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
The Merger Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other
factual information about the Company, the Parent, the Purchaser or their respective subsidiaries and affiliates. The Merger Agreement contains representations and warranties by the Company, on the one hand, and the Parent and the Purchaser, on the
other hand, made solely for the benefit of the other. The assertions embodied in those representations and warranties are subject to qualifications and limitations agreed to by the respective parties in negotiating the terms of the Merger Agreement,
including information in confidential disclosure schedules delivered in connection with the signing of the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were made as of a specified date, may be subject to
a contractual standard of materiality different from what might be viewed as material to investors, or may have been used for the purpose of allocating risk between the Company, on the one hand, and the Parent and the Purchaser, on the other hand,
rather than establishing matters as facts. Accordingly, the representations and warranties in the Merger Agreement should not be relied on by any persons as characterizations of the actual state of facts about the Company, the Parent, the Purchaser
or their respective subsidiaries or affiliates at the time they were made or otherwise. In addition, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent
information may or may not be fully reflected in the Companys public disclosures.
On July 10, 2022, concurrently with the execution of the
Merger Agreement, the Parent entered into a Support Agreement (the Support Agreement) with the Purchaser and each of the stockholders of the Company set forth on Schedule A thereto (each, a Support Agreement
Stockholder), pursuant to which each Support Agreement Stockholder agreed, among other things, to vote against other proposals to acquire the Company and, subject to certain exceptions, to tender his, her or its shares of Common Stock
pursuant to the Offer. The foregoing description of the Support Agreement does not purport to be complete and are qualified in its entirety by reference to the full text of the form of Support Agreement, a copy of which is attached hereto as Exhibit
10.1 and incorporated herein by reference.
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