Conditions to the Offer. The obligations of Acquisition Sub to accept for payment and
pay for any Company Shares validly tendered and not properly withdrawn pursuant to the Offer are subject to the satisfaction of conditions specified in the Merger Agreement, including (i) that there shall have been validly tendered (excluding
Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depository, as such terms are defined in Section 251(h) of the DGCL) and not properly withdrawn that number of
Company Shares that, when added to the Company Shares then beneficially owned by Parent and its affiliates, constitute at least a majority of the total number of then issued and outstanding Company Shares (the Minimum Tender Condition),
(ii) the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the HSR Act) applicable to the purchase of Company Shares pursuant to the Offer, (iii) the accuracy
of the Companys representations and warranties in the Merger Agreement and its compliance with its covenants and obligations in the Merger Agreement, subject to certain exceptions, and (iv) the absence of judgments or laws enjoining,
restraining, prohibiting, preventing or making illegal the making of the Offer, the consummation of the Offer or the Merger.
Representations, Warranties and Covenants; Non-Solicitation. The Merger Agreement contains
customary representations, warranties and covenants of the Company, Parent and Acquisition Sub. These covenants include an obligation of the Company, subject to certain exceptions, to and to cause its subsidiaries to conduct its operations in all
material respects in the ordinary course of business for the period between the execution of the Merger Agreement and the earlier of (i) the Acceptance Time (as defined in the Merger Agreement), or (ii) the date of termination of the
Merger Agreement. Each of the Company, Parent and Acquisition Sub have also agreed to promptly make and effect all registrations, filings and submissions required to be made or effected by it pursuant to the HSR Act, the Securities Exchange Act of
1934, as amended, and other applicable legal requirements with respect to the Offer and the Merger. The Merger Agreement also requires the Company to and to cause its financial advisor, its subsidiaries and their respective officers and directors
to, immediately cease and cause to be terminated any existing solicitation of, or negotiations or discussions with, any person relating to any Acquisition Proposal (as defined in the Merger Agreement) and restricts the Companys ability to,
among other things, solicit, initiate, or knowingly encourage or knowingly facilitate the inquiry, submission or announcement of, or participate or engage in any discussions or negotiations with respect to, an Acquisition Proposal or furnish any
information to any third party in response to, or in a manner that would reasonably be expected to lead to, an Acquisition Proposal, subject to certain limited exceptions. The Merger Agreement also contains covenants that require, subject to certain
limited exceptions, the Company Board to recommend that the stockholders of the Company accept the Offer and tender their Company Shares to Acquisition Sub in the Offer. However, subject to compliance with certain terms and conditions in the Merger
Agreement, (i) in the event the Company Board receives a Superior Proposal (as defined in the Merger Agreement) the Company Board is permitted to change its recommendation to the Companys stockholders and cause the Company to terminate
the Merger Agreement to enter into such Superior Proposal and (ii) the Company Board is permitted to change its recommendation to the Companys stockholders in response to a Change in Circumstances (as defined in the Merger Agreement).
Termination; Termination Fees. The Merger Agreement also provides for certain termination rights for both the Company and Parent.
Upon termination of the Merger Agreement under certain circumstances, the Company is obligated to pay Parent a termination fee equal to $15,833,067, including if the Merger Agreement is terminated (i) by Parent following a change of
recommendation by the Company Board, (ii) by the Company to enter into a Superior Proposal or (iii) by Parent or the Company under specified circumstances, and, within twelve months following such termination, the Company or any of its
subsidiaries consummates or enters into a definitive agreement providing for a Specified Acquisition Transaction (as defined in the Merger Agreement) that is subsequently consummated in each case, as is described in further detail in the Merger
Agreement.
Under certain circumstances, Parent is obligated to pay the Company a termination fee equal to $55,415,734, including if the
Merger Agreement is terminated by the Company after (i) Parent fails to perform its covenants or breaches its representations and warranties, in each case in any material respect (and such breach, inaccuracy or failure has prevented, or would
reasonably be expected to prevent, Parent or Acquisition Sub from consummating the transactions contemplated by the Merger Agreement); or (ii) the tender offer conditions have been satisfied or waived at the expiration of the Offer, the Company
has delivered written notice to Parent to such effect and Acquisition Sub fails to so consummate the tender offer when required.