Common use of Additional Agreements and Acknowledgements Clause in Contracts

Additional Agreements and Acknowledgements. (a) Each undersigned Holder (i) confirms that such Holder (A) has made its own investigation of Acquiror and Holdings and has had the opportunity to ask representatives of Holdings and Acquiror questions with regard to the subject matter of this Agreement and the Merger Agreement, (B) has had a reasonable time and opportunity to consult with such Holder’s financial, legal, tax and other advisors, if desired, before signing this Agreement, (C) has entered into this Agreement, on behalf of itself and the other Releasing Parties, voluntarily, with the intention of fully and finally extinguishing all Claims other than the Retained Claims, and (D) has received and had a reasonable opportunity to review and understand the Merger Agreement, and (ii) represents and warrants that such Holder has not relied, in whole or in part, on any statements or representations made by or on behalf of any Released Parties in connection herewith or otherwise (other than any express representations or warranties given by a Released Party and set forth in the Merger Agreement or any Ancillary Agreement). (b) Each undersigned Holder represents and warrants that such Holder has all requisite power and authority and full legal capacity to execute and deliver this Agreement, and to carry out such Holder’s obligations hereunder. This Agreement has been duly executed and delivered by such Holder, and constitutes the valid and binding obligation of such Holder, enforceable in accordance with its terms. (c) This Agreement shall be construed exclusively in accordance with, and governed in all respects exclusively by, the internal laws of the State of Delaware (without giving effect to principles of conflicts of laws). (d) This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and such party’s successors and assigns (if any); provided, however, that no Holder may assign this Agreement or any rights or obligations hereunder (by operation of law or otherwise) to any Person without Acquiror’s prior written consent. (e) Each Beneficiary and each of the other Released Parties and each of their respective successors and assigns are intended third party beneficiaries of this Agreement. (f) Each undersigned Holder acknowledges that (i) this Agreement is intended to be a material inducement for Holdings, Acquiror, Acquiror Merger Sub, and Newco to, and (ii) Holdings, Acquiror, Acquiror Merger Sub, and Newco will be relying on such Holder’s execution and delivery to Acquiror of this Agreement, and such Holder’s agreement to be bound by the terms hereof, in determining whether to, proceed to consummate the Mergers and the other Transactions, and accordingly, that once delivered to Acquiror, this Agreement shall be irrevocable. (g) If any provision of this Agreement is held to be unenforceable for any reason, such provision and all other related provisions shall be modified rather than voided if possible, in order to achieve the intent of the parties to the Merger Agreement to the extent possible. In any event, all other unrelated provisions of this Agreement shall be deemed valid and enforceable to the full extent permitted by Law. (h) This Agreement may be executed in any number of counterparts (including via facsimile or other electronic transmission), each of which shall constitute an original and all of which together shall constitute one and the same instrument. (i) All notices and other communications hereunder shall be made in accordance with Section 11.02 of the Merger Agreement to the address, email or facsimile set forth under each party’s signature below.

Additional Agreements and Acknowledgements. You hereby agree and acknowledge that: (a) Each undersigned Holder The rights and obligations of the Company with respect to your Award shall be transferable to any one or more persons or entities, and all covenants and agreements hereunder shall inure to the benefit of, and be enforceable by the Company’s successors and assigns. (b) You agree upon request to execute any further documents or instruments necessary or desirable in the sole determination of the Company to carry out the purposes or intent of your Award. (c) You have reviewed your Award in its entirety, have had an opportunity to obtain the advice of counsel prior to executing and accepting your Award and fully understand all provisions of your Award. (d) You will not question or contest in any way, whether pursuant to legal proceedings or otherwise, the Board’s determination of the Fair Market Value of Common Stock, whether for purposes of determining the strike price of your Award, the number of shares of Common Stock payable on exercise of your Award, or the amount payable on exercise of your put right or the Company’s call right pursuant to Section 8 of the Plan. (e) You will not question or contest in any way, whether pursuant to legal proceedings or otherwise, the Company’s determination, pursuant to Section 8(e) of the Plan, to (i) confirms that such Holder (A) has made its own investigation of Acquiror and Holdings and has had the opportunity to ask representatives of Holdings and Acquiror questions with regard to the subject matter of this Agreement and the Merger Agreement, (B) has had a reasonable time and opportunity to consult with such Holder’s financial, legal, tax and other advisors, if desired, before signing this Agreement, (C) has entered into this Agreement, on behalf of itself and the other Releasing Parties, voluntarily, with the intention of fully and finally extinguishing all Claims other than the Retained Claims, and (D) has received and had a reasonable opportunity to review and understand the Merger Agreement, and (ii) represents and warrants that such Holder has not reliedreject, in whole or in part, on any statements your exercise of a put right or representations made by (ii) not exercise, in whole or on behalf of any Released Parties in connection herewith or otherwise (other than any express representations or warranties given by a Released Party and set forth in part, the Merger Agreement or any Ancillary Agreement)Company’s call right. (bf) Each undersigned Holder represents This Agreement shall be subject to all applicable laws, rules, and warrants that such Holder has all requisite power and authority and full legal capacity to execute and deliver this Agreementregulations, and to carry out such Holder’s approvals by any governmental agencies or national securities exchanges as may be required. (g) All obligations hereunder. This of the Company under the Plan and this Agreement has been duly executed and delivered by shall be binding on any successor to the Company, whether the existence of such Holdersuccessor is the result of a direct or indirect purchase, merger, consolidation, or otherwise, of all or substantially all of the business and/or assets of the Company. (h) Participation in the Plan is voluntary, and constitutes therefore, you must accept the valid terms and binding obligation conditions of such Holderthe Plan and this Award as a condition to participate in the Plan and receive this Award. (i) The Plan is discretionary in nature and the Company can amend, enforceable cancel, or terminate it at any time. Section 3(b)(v) of the Plan to the contrary notwithstanding, this Award shall not be terminated or canceled without payment to you except to the extent the Award fails to vest or is forfeited, expires or otherwise terminates in accordance with its terms. (cj) This Agreement shall be construed exclusively Award and any other awards under the Plan are voluntary and occasional and do not create any contractual or other right to receive future awards or other benefits in accordance withlieu of future awards, and governed even if similar awards have been granted repeatedly in all respects exclusively by, the internal laws of the State of Delaware (without giving effect to principles of conflicts of laws)past. (dk) This Agreement shall be binding upon All determinations with respect to any such future awards, including, but not limited to, the time or times when such awards are made, the number of shares of Common Stock, and inure performance and other conditions applied to the benefit of each awards, will be at the sole discretion of the parties hereto and such party’s successors and assigns (if any); provided, however, that no Holder may assign this Agreement or any rights or obligations hereunder (by operation of law or otherwise) to any Person without Acquiror’s prior written consentCompany. (el) Each Beneficiary and each The value of the other Released Parties shares of Common Stock and each this Award is an extraordinary item of their respective successors and assigns are intended third party beneficiaries compensation, which is outside the scope of this Agreementyour employment or service contract, if any. (fm) Each undersigned Holder acknowledges The shares of Common Stock, this Award, or any income derived therefrom are a potential bonus payment not paid in lieu of any cash salary compensation and not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculating any termination, severance, resignation, redundancy, end of service payments, bonuses, long-service awards, life or accident insurance benefits, pension or retirement benefits or similar payments. (n) In the event of the termination of your Continuous Service, your eligibility to receive shares of Common Stock or payments under this Award or the Plan, if any, will terminate effective as of the date that you are no longer actively employed or retained regardless of any reasonable notice period mandated under local law, except as expressly provided in this Award. (io) In the event of the termination of your Continuous Service for Cause, the Company, in its sole discretion, may rescind any transfer of Common Stock to you that occurred within six (6) months prior to such termination of Continuous Service or demand that you pay over to the Company the proceeds received by you upon the sale, transfer or other transaction involving the Common Stock in such manner and on such terms and conditions as the Company may require, and the Company shall be entitled to set-off against the amount of such proceeds any amount you owe to the Company to the fullest extent permitted by law. (p) The future value of the shares of Common Stock is unknown and cannot be predicted with certainty. (q) No claim or entitlement to compensation or damages arises from the termination of this Agreement Award or diminution in value of the shares of Common Stock and you irrevocably release the Company and its Affiliates, from any such claim that may arise. (r) The Plan and this Award set forth the entire understanding between you, the Company and any Affiliate regarding the acquisition of the shares of Common Stock and supersede all prior oral and written agreements pertaining to this Award. (s) Anything in the Plan to the contrary notwithstanding, in the event any extraordinary cash dividend is intended made to stockholders, the Board shall equitably adjust the exercise price of this Award to reflect any material decrease in the fair market value of a share of the Company’s Common Stock resulting from such extraordinary dividend, to the extent permissible without causing the Award to be a material inducement for Holdings, Acquiror, Acquiror Merger Sub“deferral of compensation” under Section 409A of the Internal Revenue Code, and Newco to, and (ii) Holdings, Acquiror, Acquiror Merger Sub, and Newco will be relying on such Holder’s execution and delivery to Acquiror of this Agreement, and such Holder’s agreement to be bound by the terms hereof, in determining whether to, proceed to consummate the Mergers and the other Transactions, and accordingly, that once delivered to Acquiror, this Agreement shall be irrevocable. (g) If any provision of this Agreement is held to be unenforceable for any reason, such provision and all other related provisions shall be modified rather than voided if possible, in order to achieve the intent of the parties to the Merger Agreement to the extent possible. In any event, all not so permissible the Company shall grant you such other unrelated provisions of this Agreement award (including restricted stock units) or compensation as shall be deemed valid and enforceable equitable to compensate you for such decrease in value, as determined by the full extent permitted by LawCompany. (h) This Agreement may be executed in any number of counterparts (including via facsimile or other electronic transmission), each of which shall constitute an original and all of which together shall constitute one and the same instrument. (i) All notices and other communications hereunder shall be made in accordance with Section 11.02 of the Merger Agreement to the address, email or facsimile set forth under each party’s signature below.

Additional Agreements and Acknowledgements. (a) a. Each undersigned Holder (i) Stockholder confirms that such Holder (A) Stockholder has made its own investigation of Acquiror received the Merger Agreement and Holdings the Escrow Agreement and has had the opportunity to ask representatives of Holdings and Acquiror the Company questions with regard to the subject matter of agreements and consents in this Agreement Written Consent and the Merger Agreement, (B) and that all such questions have been answered fully and to the satisfaction of such Stockholder. Each Stockholder also confirms that such Stockholder has had a reasonable time and opportunity to consult with such HolderStockholder’s financial, legal, tax and other advisors, if desired, before signing this Written Consent and Agreement, (C) has entered into this Agreement, on behalf of itself and the other Releasing Parties, voluntarily, with the intention of fully and finally extinguishing all Claims other than the Retained Claims, and (D) has received and had a reasonable opportunity to review and understand the Merger Agreement, and (ii) . b. Each Stockholder represents and warrants that such Holder has not relied, in whole or in part, on any statements or representations made by or on behalf of any Released Parties in connection herewith or otherwise (other than any express representations or warranties given by a Released Party and set forth in the Merger Agreement or any Ancillary Agreement). (b) Each undersigned Holder represents and warrants that such Holder Stockholder has all requisite necessary power and authority and full legal capacity to execute and deliver this Written Consent and Agreement, and to carry out such HolderStockholder’s obligations hereunder. This Agreement has been duly executed hereunder and delivered by such Holder, and constitutes to consummate the valid and binding obligation of such Holder, enforceable in accordance with its termstransactions contemplated hereby. (c) c. This Written Consent and Agreement shall be construed exclusively in accordance with, and governed in all respects exclusively by, the internal laws of the State of Delaware (without giving effect to principles of conflicts of laws). (d) d. This Written Consent and Agreement shall be binding upon and inure to the benefit of each of the parties hereto and such party’s its successors and assigns (if any); provided, however, that no Holder Stockholder may assign this Written Consent and Agreement or any rights or obligations hereunder (by operation of law or otherwise) to any Person person without AcquirorParent’s prior written consent. (e) Each Beneficiary e. Parent, the Company, the Surviving Corporation and each of the other Released Indemnified Parties and each of their respective successors and assigns are intended third party beneficiaries of this Written Consent and Agreement. (f) f. Each undersigned Holder Stockholder acknowledges that (i) this Written Consent and Agreement is intended to be a material inducement for Holdings, Acquiror, Acquiror Parent and Merger Sub, Sub to enter into the Merger Agreement and Newco toeffect the transactions contemplated thereby, and (ii) Holdings, Acquiror, Acquiror Parent and Merger Sub, and Newco Sub will be relying on such HolderStockholder’s execution and delivery to Acquiror the Company of this Written Consent and Agreement, and such HolderStockholder’s agreement to be bound by the terms hereof, in determining whether to, to proceed to consummate the Mergers and the other Transactions, and accordingly, that once delivered to Acquiror, this Agreement shall be irrevocableMerger. (g) g. If any provision of this Written Consent and Agreement is held to be unenforceable for any reason, such provision and all other related provisions shall be modified rather than voided if possible, in order to achieve the intent of the parties to the Merger Agreement to the extent possible. In any event, all other unrelated provisions of this Written Consent and Agreement shall be deemed valid and enforceable to the full extent permitted by Lawpermissible. (h) h. This Written Consent and Agreement may be executed in any number of counterparts (including via facsimile or other electronic transmissioncounterparts), each of which shall constitute an original and all of which together shall constitute one and the same instrument. (i) All notices and other communications hereunder shall be made in accordance with Section 11.02 of the Merger Agreement to the address, email or facsimile set forth under each party’s signature below.

Additional Agreements and Acknowledgements. a. Each Stockholder acknowledges receipt of a copy (aincluding the exhibits thereto) of the March 15, 2008 Information Statement, describing the proposals set forth herein. b. Each undersigned Holder (i) Stockholder confirms that such Holder (A) has made its own investigation of Acquiror and Holdings and Stockholder has had the opportunity to ask representatives of Holdings and Acquiror the Company questions with regard to agreements and consents in this Written Consent and Joinder, and that all such questions have been answered fully and to the subject matter satisfaction of this Agreement and the Merger Agreement, (B) such Stockholder. Each Stockholder also confirms that such Stockholder has had a reasonable time and opportunity to consult with such HolderStockholder’s financial, legal, tax and other advisors, if desired, before signing this Agreement, (C) has entered into this Agreement, on behalf of itself Written Consent and the other Releasing Parties, voluntarily, with the intention of fully and finally extinguishing all Claims other than the Retained Claims, and (D) has received and had a reasonable opportunity to review and understand the Merger Agreement, and (ii) Joinder. c. Each Stockholder represents and warrants that such Holder has not relied, in whole or in part, on any statements or representations made by or on behalf of any Released Parties in connection herewith or otherwise (other than any express representations or warranties given by a Released Party and set forth in the Merger Agreement or any Ancillary Agreement). (b) Each undersigned Holder represents and warrants that such Holder Stockholder has all requisite necessary power and authority and full legal capacity to execute and deliver this AgreementWritten Consent and Joinder, and to carry out such HolderStockholder’s obligations hereunder. This Agreement has been duly executed hereunder and delivered by such Holder, and constitutes to consummate the valid and binding obligation of such Holder, enforceable in accordance with its termstransactions contemplated hereby. (c) d. This Agreement Written Consent and Joinder shall be construed exclusively in accordance with, and governed in all respects exclusively by, the internal laws of the State of Delaware (without giving effect to principles of conflicts of laws). (d) e. This Agreement Written Consent and Joinder shall be irrevocable, and shall be binding upon and inure to the benefit of each of the parties hereto and such party’s its successors and assigns (if any); provided, however, that no Holder Stockholder may assign this Agreement Written Consent and Joinder or any rights or obligations hereunder (by operation of law or otherwise) to any Person without AcquirorParent’s prior written consent. (e) Each Beneficiary f. Parent, the Company, the Surviving Corporation and each of the other Released Parties and each of their respective successors and assigns Indemnitees are intended third party beneficiaries of this AgreementWritten Consent and Joinder. (f) g. Each undersigned Holder Stockholder acknowledges that (i) this Agreement Written Consent and Joinder is intended to be a material inducement for Holdings, Acquiror, Acquiror Parent and Merger Sub, and Newco Sub to, and (ii) Holdings, Acquiror, Acquiror Parent and Merger Sub, and Newco Sub will be relying on such HolderStockholder’s execution and delivery to Acquiror the Company of this AgreementWritten Consent and Joinder, and such HolderStockholder’s agreement to be bound by the terms hereof, in determining whether to, proceed to consummate the Mergers and the other Transactions, and accordingly, that once delivered to Acquiror, this Agreement shall be irrevocableMerger. (g) h. If any provision of this Agreement Written Consent and Joinder is held to be unenforceable for any reason, such provision and all other related provisions shall be modified rather than voided if possible, in order to achieve the intent of the parties to the Merger Agreement to the extent possible. In any event, all other unrelated provisions of this Agreement Written Consent and Joinder shall be deemed valid and enforceable to the full extent permitted by Lawextent. (h) i. This Agreement Written Consent and Joinder may be executed in any number of counterparts (including via facsimile or other electronic transmissioncounterparts), each of which shall constitute an original and all of which together shall constitute one and the same instrument. (i) All notices and other communications hereunder shall be made in accordance with Section 11.02 of the Merger Agreement to the address, email or facsimile set forth under each party’s signature below.

Additional Agreements and Acknowledgements. You acknowledge and understand that a Company Stockholder who does not vote in favor of the Merger may, under certain circumstances, exercise dissenter’s rights under Section 262 of the Delaware General Corporation Law (“DGCL”) by following procedures prescribed under such Section. By executing this Letter of Transmittal, you affirmatively agree not to exercise any and all appraisal or dissenters rights that you may have (whether under Section 262 of the DGCL or otherwise) or could potentially have or acquire in connection with the Merger. You acknowledge that the Company, Buyer and Transitory Subsidiary will rely, and are entitled to rely, on (a) Each undersigned Holder the truth and accuracy of your representations and warranties set forth herein and (ib) confirms your agreement to perform your obligations as set forth herein. Buyer is an express third party beneficiary of your representations, warranties, covenants and agreements set forth herein. You confirm that such Holder (A) has made its own investigation of Acquiror and Holdings and has you have had the opportunity to ask representatives of Holdings and Acquiror the Company questions with regard to all the subject matter agreements, consents and other provisions in this Letter of this Agreement and the Merger Agreement, (B) has Transmittal. You also confirm that you have had a reasonable time and opportunity to consult with such Holder’s your financial, legal, tax and other advisors, if desired, before signing this Agreement, (C) has entered into Letter of Transmittal. You agree not to disclose the existence or terms of this Agreement, on behalf of itself and the other Releasing Parties, voluntarily, with the intention of fully and finally extinguishing all Claims other than the Retained Claims, and (D) has received and had a reasonable opportunity to review and understand the Merger Agreement, and (ii) represents and warrants that such Holder has not relied, in whole or in part, on any statements or representations made by or on behalf of any Released Parties in connection herewith or otherwise (other than any express representations or warranties given by a Released Party and set forth in the Merger Agreement or any Ancillary other agreement contemplated thereby or any information regarding the negotiation hereof or thereof except to the extent such information is generally known to the public (other than as a result of a disclosure by you in violation of this Agreement). (b) Each undersigned Holder represents and warrants that . Notwithstanding the foregoing, you shall have no obligation hereunder to keep confidential any such Holder has all requisite power and authority and full legal capacity to execute and deliver this Agreement, and to carry out such Holder’s obligations hereunder. This Agreement has been duly executed and delivered by such Holder, and constitutes the valid and binding obligation of such Holder, enforceable in accordance with its terms. (c) This Agreement shall be construed exclusively in accordance with, and governed in all respects exclusively by, the internal laws of the State of Delaware (without giving effect to principles of conflicts of laws). (d) This Agreement shall be binding upon and inure information to the benefit of each of the parties hereto and such party’s successors and assigns extent disclosure thereof (if any)x) is required by Law; provided, however, that no Holder in the event disclosure is required by Law, you shall use best efforts to provide Buyer with prompt advance notice of such requirement so that Buyer may assign this Agreement seek an appropriate protective order or (y)(i) is to the your legal counsel and tax and accounting advisors subject to professional or contractual confidentiality obligations or otherwise to the extent required for the preparation of any rights or obligations hereunder (by operation of law or otherwise) to any Person without Acquiror’s prior written consent. (e) Each Beneficiary and each of the other Released Parties and each of their respective successors and assigns are intended third party beneficiaries of this Agreement. (f) Each undersigned Holder acknowledges that (i) this Agreement is intended to be a material inducement for HoldingsTax Return, Acquiror, Acquiror Merger Sub, and Newco to, and (ii) Holdings, Acquiror, Acquiror Merger Sub, and Newco will be relying on such Holder’s execution and delivery to Acquiror of this Agreement, and such Holder’s agreement to be bound by the terms hereof, in determining whether to, proceed to consummate the Mergers and the other Transactions, and accordingly, that once delivered to Acquiror, this Agreement shall be irrevocable. (g) If any provision of this Agreement is held to be unenforceable for any reason, such provision and all other related provisions shall be modified rather than voided if possible, in order to achieve the intent of the parties to the Merger Agreement to the extent possible. In any eventyou are a venture capital or private equity fund, all other unrelated provisions of this Agreement shall be deemed valid to your affiliates, employees, officers, managers, general partners and enforceable current or prospective limited partners who are required to maintain the full extent permitted by Law. (h) This Agreement may be executed in any number of counterparts (including via facsimile or other electronic transmission)confidentiality thereof, each of which shall constitute an original and all of which together shall constitute one and to disclose the same instrument. (i) All notices and other communications hereunder shall be made in accordance with Section 11.02 existence of the Merger Agreement and the principal terms thereof, or (iii) is in connection with, and only to the addressextent required for, email enforcement of rights under the Merger Agreement. Nothing in this Agreement shall (A) be deemed to prohibit you from disclosing the fact that discussions regarding the Merger have taken place or facsimile set forth under each party’s signature belowthat the Merger has occurred to the your immediate family members who are required to hold such information in confidence or (B) limit or interfere with your right, if required by Law, without notice to or authorization of the Company, to communicate in good faith with any Governmental Entity for the purpose of reporting a possible violation of Law, or to participate in any investigation or proceeding that may be conducted by any Governmental Entity, including by providing documents or other information, or for the purpose of filing a charge or complaint with a Governmental Entity. You shall be responsible for any breach of this paragraph by any of the foregoing persons as if such person were a party hereto. You hereby agree that, except as may be requested by Buyer, you will not revoke or rescind any written consent you may have given or may in the future give relating to approval of the Merger and the Merger Agreement or any resolution contained therein and further agree not to vote in favor or adopt any resolutions rescinding or revoking any such consent or any resolution contained therein or otherwise precluding or rescinding approval of the Merger or the adoption of the Merger Agreement. If applicable, and if required by the applicable Laws of a community property state, concurrently with the execution and delivery of this Letter of Transmittal, you are delivering to Buyer and the Exchange and Paying Agent an executed copy of the Spousal Consent attached hereto.