No Shop
The Company is subject to customary no-shop restrictions on its ability to
solicit, initiate or knowingly encourage third party proposals relating to alternative transactions or to provide information to, or engage in discussions with, a third party in relation to an alternative transaction, and the Board is required to
recommend that the Companys stockholders adopt the Merger Agreement (the Recommendation), in each case, subject to certain exceptions to permit the Board to comply with its fiduciary duties. Notwithstanding such
restrictions, prior to receipt of the Company Stockholder Approval, the Board may (i) withhold, amend, withdraw or modify its Recommendation if, in connection with (A) an alternative proposal that did not result from a material breach of the no-shop restrictions and which constitutes a Superior Offer (as defined in the Merger Agreement), the Board determines in good faith, after consultation with its outside legal counsel, that
the failure of the Board to change its Recommendation would be inconsistent with its fiduciary duties, or (B) an Intervening Event (as defined in the Merger Agreement), the Board determines in good faith, after consultation with its outside
legal counsel, that the failure of the Board to change its Recommendation would be inconsistent with its fiduciary duties and (ii) in the case of clause (A), terminate the Merger Agreement in connection with entry into an agreement with respect
to such Superior Offer. Before the Board may change its Recommendation or terminate the Merger Agreement to accept a Superior Offer, the Company must, among other things, provide Parent with a four (4) business days notice and, if
requested by Parent, engage in good faith negotiations with Parent to consider certain adjustments to the Merger Agreement so that the alternative acquisition proposal ceases to constitute a Superior Offer. Before the Board may change its
Recommendation due to an Intervening Event, the Company must, among other things, provide Parent with four (4) business days notice and, if requested by Parent, engage in good faith negotiations with Parent to consider certain adjustments
to the Merger Agreement so that a change in Recommendation is no longer necessary.
Parent is subject to
customary no-shop restrictions on its ability to solicit, initiate or knowingly encourage third party proposals relating to alternative transactions or to provide information to, or
engage in discussions with, a third party in relation to an alternative transaction. In the event that Parent receives an alternative acquisition proposal, Parent is required to, among other things, provide the Company confirmation (in writing) that
Parent has advised (in writing) the party making such proposal that Parent and its representatives are contractually prohibited from furnishing non-public information regarding Parent to, or from engaging in
discussions or negotiations with, any party regarding an alternative acquisition proposal.
In addition, Parent, as the sole stockholder
of Merger Sub, has delivered to the Company a duly executed written consent adopting and approving the Merger Agreement and the Merger (the Written Consent) and, under the terms of the Merger Agreement, Parent may not amend,
modify, terminate or rescind the Written Consent.
Termination and Fees
The Merger Agreement contains certain termination rights for each of the Company and Parent. Subject to the terms and conditions of the Merger
Agreement, the Company or Parent may terminate the Merger Agreement (i) if the Merger is not consummated by December 22, 2021 (the Termination Date), (ii) if a governmental authority has issued a governmental order that
permanently enjoins the consummation of the Merger, (iii) if the Company Stockholder Approval is not obtained at the Special Meeting or (iv) upon their mutual written consent. Each of the Company and Parent has a right to terminate the
Merger Agreement if the other party has breached its representations, warranties, covenants or other agreements contained in the Merger Agreement, in each case subject to certain materiality qualifications.
At any time prior to the Company Stockholder Approval being obtained, (i) Parent may terminate the Merger Agreement upon (x) the Board
making an Adverse Recommendation Change (as defined in the Merger Agreement), (y) the Company entering into any contract with respect to an alternative acquisition proposal (other than an acceptable confidentiality agreement) or (z) the Company
materially breaching certain of its obligations described in the above section entitled No Shop (a Triggering Event) and (ii) the Company may terminate the Merger Agreement if (A) the Company has received a
Superior Offer that did not result from a material breach by the Company of certain of its obligations described in the above section entitled No Shop, (B) concurrently with terminating the Merger Agreement, the Company enters into a
definitive agreement with respect to such Superior Offer and (C) within two business days of such termination, the Company pays to Parent a termination fee (Termination Fee) of $3,500,000. The Termination Fee is also payable
by the Company to Parent if Parent terminates the Merger Agreement upon a Triggering Event, unless such Triggering Event giving rise to the termination resulted from a change in Recommendation in connection with an Intervening Event.
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