Following the completion of the Offer, subject to the absence of injunctions or other legal restraints
preventing the consummation of the Merger, the Purchaser will merge with and into the Company, with the Company surviving as a wholly owned subsidiary of the Parent, pursuant to the procedure provided for under Section 251(h) of the Delaware
General Corporation Law, without any additional stockholder approvals. The Merger will be effected as soon as practicable following the time of purchase by the Purchaser of shares of Common Stock validly tendered and not withdrawn in the Offer.
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) use commercially reasonable efforts to 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; (iii) not to solicit proposals or, subject to certain exceptions, engage in discussions
relating to alternative acquisition proposals or change the recommendation of the Board to the Companys stockholders regarding the Merger Agreement; and (iv) use commercially reasonable efforts to attempt to ensure that each of the
Company and its subsidiaries preserves intact the material components of its current business organization and maintains its relations and goodwill with all material suppliers, material customers, material licensors and governmental entities.
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 August 18, 2020 (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 proposal), the Company will be required to pay the Parent a termination fee of $1,150,000. 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 $200,000.
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.
Concurrently with the
execution of the Merger Agreement, the Parent delivered to the Company a duly executed guarantee of Deerfield Private Design Fund III, L.P., a Delaware limited partnership, and Deerfield Private Design Fund IV, L.P., a Delaware limited partnership,
dated as of the date of the Merger Agreement, in respect of the certain of the Parents and the Purchasers obligations arising under, or in connection with, the Merger Agreement, the CVR Agreement and the transactions contemplated hereby
and thereby.