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) the truth and accuracy of your representations and warranties set forth herein and (b) 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 you have had the opportunity to ask representatives of the Company questions with regard to all the agreements, consents and other provisions in this Letter of Transmittal. You also confirm that you have had a reasonable time and opportunity to consult with your financial, legal, tax and other advisors, if desired, before signing this Letter of Transmittal. You agree not to disclose the existence or terms of this Agreement, the Merger Agreement or any 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). Notwithstanding the foregoing, you shall have no obligation hereunder to keep confidential any such information to the extent disclosure thereof (x) is required by Law; provided, however, that 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 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 Tax Return, (ii) to the extent you are a venture capital or private equity fund, to your affiliates, employees, officers, managers, general partners and current or prospective limited partners who are required to maintain the confidentiality thereof, to disclose the existence of the Merger Agreement and the principal terms thereof, or (iii) is in connection with, and only to the extent required for, 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 that 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.
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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 statutory rights of appraisal or dissenters any 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) the truth and accuracy of your representations and warranties set forth herein and (b) 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 you have had the opportunity to ask representatives of the Company questions with regard to all the agreements, consents and other provisions in this Letter of Transmittal. You also confirm that you have had a reasonable time and opportunity to consult with your financial, legal, tax and other advisors, if desired, before signing this Letter of Transmittal. You hereby agree not that all confidential and non-public information of the Company obtained by you before or after the Effective Time, and including all confidential and non-public information provided to disclose you by the existence or Company Equityholder Representative, as well as the terms of this AgreementLetter of Transmittal, the Merger Agreement and the transactions contemplated thereby, shall not be disclosed by you to any third party; provided, however, that: (a) you may disclose such information or terms if required to do so by applicable Law (provided that you, to the extent legally permitted, promptly notify Buyer and the Company Equityholder Representative in advance of disclosing such information); (b) you may disclose such information to a Governmental Entity of competent jurisdiction or arbitrator of competent jurisdiction in connection with any dispute or proceeding relating to this Letter of Transmittal, the Merger Agreement or any of the transactions contemplated thereby; (c) if you are an investment fund, you may disclose the terms of this Letter of Transmittal and the Merger Agreement, the return on your investment, and other agreement contemplated thereby summary terms of the Merger to your current investors or any information regarding the negotiation hereof or thereof except prospective investors and, as applicable, to your limited partners to the extent such information is generally known to permitted under Section 2.8(f) of the Merger Agreement; (d) following any public (other than as a result announcement of a disclosure the acquisition of the Company by you in violation of this Agreement). Notwithstanding the foregoingBuyer, you shall have no obligation hereunder to keep confidential any such information to the extent disclosure thereof (x) is required by Law; provided, however, that 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 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 Tax Return, (ii) to the extent you are a venture capital or private equity fund, to your affiliates, employees, officers, managers, general partners and current or prospective limited partners who are required to maintain the confidentiality thereof, to disclose the existence terms of the Merger Agreement and the principal that are disclosed by Buyer in such public announcement or any subsequent public filing; (e) you may disclose such information or terms thereof, or (iii) is in connection with, and only to the extent required forthey become generally available to the public other than by virtue of a breach of this provision by you or your Affiliates; and (f) you may disclose such information or terms to your professional advisers and, enforcement of rights under the Merger Agreement. Nothing if you are not a natural person, to your Affiliates and your and their partners, members, managers members, directors, officers, employees and representatives, in each case, who: (i) need to know such information; and (ii) agree to keep it confidential and are subject to confidentiality obligations no less restrictive than those contained in this Agreement shall (A) be deemed to prohibit you from disclosing the fact that discussions regarding the Merger have taken place or that 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 Letter 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 EntityTransmittal. 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.
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Samples: Agreement and Plan of Merger (Sucampo Pharmaceuticals, Inc.)
Additional Agreements and Acknowledgements. You acknowledge The Administrative Agent 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 Lenders have (whether under Section 262 of the DGCL or otherwise) or could potentially have or acquire in connection with the Merger. You acknowledge requested that the Company, Buyer Borrower deliver the Shared Collateral Items. Each party hereto acknowledges and Transitory Subsidiary will rely, and are entitled to rely, on agrees that (a) no agreements in principle or otherwise with respect to the truth Shared Collateral Items exist as of the date hereof and accuracy that the material terms of your representations the Shared Collateral Items remain yet to be negotiated and warranties set forth herein agreed upon and (b) your the parties to the Shared Collateral Items owe no duty to one another to reach agreement with respect to perform your obligations as set forth hereinthe Shared Collateral Items or in regard to negotiations respecting the Shared Collateral Items; provided that, with respect to the foregoing clause (b), the Borrower and each Consenting Lender hereby agree to negotiate in good faith, for a period not to exceed forty-five (45) days after the Amendment No. Buyer is an express third party beneficiary of your representations1 Effective Date, warrantiesto seek to reach agreement regarding the terms, covenants provisions and agreements set forth herein. You confirm that you have had the opportunity to ask representatives conditions of the Company questions with regard Shared Collateral Items. The Borrower further acknowledges and agrees that it shall not make any Borrowings or request the issuance of any Letters of Credit (excluding renewals or extensions of existing Letters of Credit) unless and until the Shared Collateral Delivery Date has occurred, regardless of the reason that the Shared Collateral Delivery Date has not occurred, including but not limited to all the agreements, consents and other provisions in this Letter failure of Transmittal. You also confirm that you have had a reasonable time and opportunity to consult with your financial, legal, tax and other advisors, if desired, before signing this Letter of Transmittal. You agree not to disclose the existence or terms of this Agreement, the Merger Agreement parties or any other participants with respect to the Shared Collateral Items to reach agreement contemplated thereby for any reason whatsoever (including but not limited to actual or any information alleged violations of the agreement appearing in the proviso to the first sentence of this Section 6 by the Borrower and each Consenting Lender to negotiate in good faith) 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). Notwithstanding the foregoingterms, you shall have no obligation hereunder to keep confidential any such information to the extent disclosure thereof (x) is required by Law; provided, however, that 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 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 Tax Return, (ii) to the extent you are a venture capital or private equity fund, to your affiliates, employees, officers, managers, general partners and current or prospective limited partners who are required to maintain the confidentiality thereof, to disclose the existence of the Merger Agreement and the principal terms thereof, or (iii) is in connection withprovisions, and only to the extent required for, enforcement conditions 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 that 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 heretoShared Collateral Items.
Appears in 1 contract
Samples: Pmi Group Inc
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 TransmittalExchange Form, 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 the Merger Subsidiaries will rely, and are entitled to rely, on (a) the truth and accuracy of your representations and warranties set forth herein and (b) 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 you have had the opportunity to ask representatives of the Company questions with regard to all the agreements, consents and other provisions in this Letter of TransmittalExchange Form. You also confirm that you have had a reasonable time and opportunity to consult with your financial, legal, tax and other advisors, if desired, before signing this Letter of Transmittal. You agree not to disclose the existence or terms of this Agreement, the Merger Agreement or any 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). Notwithstanding the foregoing, you shall have no obligation hereunder to keep confidential any such information to the extent disclosure thereof (x) is required by Law; provided, however, that 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 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 Tax Return, (ii) to the extent you are a venture capital or private equity fund, to your affiliates, employees, officers, managers, general partners and current or prospective limited partners who are required to maintain the confidentiality thereof, to disclose the existence of the Merger Agreement and the principal terms thereof, or (iii) is in connection with, and only to the extent required for, 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 that 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 heretoExchange Form. 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 TransmittalExchange Form, you are delivering to Buyer and the Exchange and Paying Agent an executed copy of the Spousal Consent attached hereto. 7. Defined Terms. Capitalized terms used and not otherwise defined in this Exchange Form shall have the meanings given to them in the Merger Agreement. . SPOUSAL CONSENT I , spouse of , have read and approve the foregoing Exchange Form (the “Exchange Form”), the written consent of the Company Stockholder referred to therein (the “Consent”) and the form of release referred to therein (the “Release”). In consideration of the terms and conditions as set forth in the Exchange Form and the matters set forth in the Consent, I hereby appoint my spouse as my attorney-in-fact with respect to the exercise of any rights and the performance of any obligations under the Exchange Form and the Consent (including, without limitation, the execution and delivery of the Release), and agree to be bound by the provisions of the Exchange Form, the Consent and the Release insofar as I may have any rights or obligations in the Exchange Form or in the Consent under the community property laws of the State of California or similar laws relating to marital or community property in effect in the state of our residence as of the date of the Exchange Form or the Consent or the Release. Date: , 2018 Signature of Spouse Printed Name of Spouse Exhibit D Form of Support and Joinder Agreement EXHIBIT D SUPPORT AND JOINDER AGREEMENT THIS SUPPORT AND JOINDER AGREEMENT (this “Agreement”) is entered into as of October 30, 2018, by and among the stockholder of Inception 4, Inc., a Delaware corporation (the “Company”), listed on Schedule I and party hereto (the “Stockholder”), the Company, and Ophthotech Corporation, a Delaware corporation (“Buyer”). Capitalized terms used and not otherwise defined herein shall have the respective meanings assigned to them in the Merger Agreement (as defined below).
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