Common use of Determination of Validity Clause in Contracts

Determination of Validity. All questions as to the form of documents and the validity, eligibility (including time of receipt) and acceptance for payment of any tender of Units pursuant to any of the procedures described above will be determined by Purchaser in its reasonable discretion, which determination shall be final and binding on all parties. Purchaser reserves the absolute right to reject any or all tenders of Units determined not to be in proper form or the acceptance of or payment for which may, in the opinion of counsel, be unlawful and reserves the absolute right to waive any defect or irregularity in any tender of Units. Purchaser also reserves the absolute right to waive or amend any or all of the conditions of the Offer prior to the Expiration Date. Purchaser's interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and its instructions) will be final and binding on all parties. No tender of Units will be deemed to have been validly made, until all defects and irregularities have been cured or waived. None of Purchaser, the Depositary, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. APPOINTMENT as PROXY. By executing and delivering the Letter of Transmittal, a tendering Holder irrevocably appoints designees of Purchaser as his or her attorneys-in-fact and proxies, with full power of substitution, in the manner set forth in the Letter of Transmittal, to the full extent of the Holder's rights with respect to the Units (and with respect to any and all other securities issued or issuable in respect of such Units on or after the date hereof) tendered by the Holder. All such powers of attorney and proxies will be considered coupled with an interest in the tendered Units and all prior powers of attorney and proxies given by the Holder with respect to the Units will be revoked, without further action, and no subsequent powers of attorney and proxies may be given (and, if given, will not be deemed effective) by the Holder. Designees of Purchaser will be empowered to exercise all voting and other rights of the Holder with respect to such Units as they in their reasonable discretion may deem proper, including, without limitation, in respect of any annual or special meeting of the Holders, or any adjournment or postponement of any such meeting, or in connection with any action by written consent in lieu of any such meeting or otherwise. Purchaser reserves the right to require that, in order for Units to be validly tendered, immediately upon Purchaser's acceptance for payment of the Units, Purchaser must be able to exercise full voting and other rights with respect to the Units. A tender of Units pursuant to any of the procedures described above will constitute the tendering Holder's acceptance of the terms and conditions of the Offer. Purchaser's acceptance for payment of Units tendered pursuant to the Offer will constitute a binding agreement between the tendering Holder and Purchaser upon the terms and conditions of the Offer.

Determination of Validity. All questions as to the form of documents and the validity, eligibility (including time of receipt) and acceptance for payment of any tender of Units pursuant to any of the procedures described above BACs will be determined by Purchaser the Purchaser, in its reasonable sole discretion, which whose determination shall be final and binding on all parties. The Purchaser reserves the absolute right to reject any or all tenders of Units determined by it not to be in proper form form, or the acceptance of or payment for which may, in the opinion of the Purchaser's counsel, be unlawful and unlawful. The Purchaser also reserves the absolute right to waive any of the conditions of the Offer or any defect or irregularity in any tender of UnitsBACs of any particular BACs holder whether or not similar defects or irregularities are waived in the case of other BACs holders. Purchaser also reserves Assignee Status. Assignees must provide documentation to the absolute right Information Agent/Depositary which demonstrates, to waive or amend any or all the satisfaction of the conditions Purchaser, such person's status as an assignee of the Offer prior to the Expiration Datea BAC. The Purchaser's interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and its instructionsthe instructions thereto) will be final and binding on all partiesbinding. No tender of Units BACs will be deemed to have been validly made, made until all defects and irregularities with respect to such tender have been cured or waived. None of the Purchaser, the Depositaryany of its affiliates or assigns, if any, the Information Agent Agent/Depositary or any other person will be under any duty to give any notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. APPOINTMENT as PROXY. By executing and delivering the Letter of Transmittal, a tendering Holder irrevocably appoints designees of Purchaser as his or her attorneys-in-fact and proxies, with full power of substitution, in the manner set forth in the Letter of Transmittal, to the full extent of the Holder's rights with respect to the Units (and with respect to any and all other securities issued or issuable in respect of such Units on or after the date hereof) tendered by the Holder. All such powers of attorney and proxies will be considered coupled with an interest in the tendered Units and all prior powers of attorney and proxies given by the Holder with respect to the Units will be revoked, without further action, and no subsequent powers of attorney and proxies may be given (and, if given, will not be deemed effective) by the Holder. Designees of Purchaser will be empowered to exercise all voting and other rights of the Holder with respect to such Units as they in their reasonable discretion may deem proper, including, without limitation, in respect of any annual or special meeting of the Holders, or any adjournment or postponement of any such meeting, or in connection with any action by written consent in lieu of any such meeting or otherwise. Purchaser reserves the right to require that, in order for Units to be validly tendered, immediately upon The Purchaser's acceptance for payment of the Units, Purchaser must be able to exercise full voting and other rights with respect to the Units. A tender of Units BACs tendered pursuant to any of the procedures described above will constitute the tendering Holder's acceptance of the terms and conditions of the Offer. Purchaser's acceptance for payment of Units tendered pursuant to the Offer will constitute a binding agreement between the tendering Holder BACs holder and the Purchaser upon the terms and subject to the conditions of the Offer.

Determination of Validity. All questions as to the form of documents and the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Units pursuant to any of the procedures described above Shares will be determined by Purchaser the Purchaser, in its reasonable sole discretion, which determination shall be final and binding on all parties. The Purchaser reserves the absolute right to reject any or and all tenders of Units determined by it not to be in proper form or the acceptance for payment of or payment for which may, in the opinion of counselthe Purchaser, be unlawful and unlawful. The Purchaser also reserves the absolute right to waive any defect or irregularity in any the tender of Units. Purchaser also reserves any Shares of any particular stockholder, whether or not similar defects or irregularities are waived in the absolute right to waive or amend any or all case of the conditions of the Offer prior to the Expiration Date. Purchaser's interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and its instructions) will be final and binding on all partiesother stockholders. No tender of Units Shares Table of Contents will be deemed to have been validly made, made until all defects and irregularities have been cured or waivedwaived to the satisfaction of the Purchaser. None of the Purchaser, the Depositary, the Information Agent (as defined in Section 17—“Fees and Expenses”) or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. APPOINTMENT as PROXYAppointment. By executing and delivering the Letter of Transmittal, a the tendering Holder stockholder will irrevocably appoints appoint designees of the Purchaser as his or her attorneys-in-fact and proxies, with full power of substitution, such stockholder’s proxies in the manner set forth in the Letter of Transmittal, each with full power of substitution, to the full extent of the Holder's such stockholder’s rights with respect to the Units (Shares tendered by such stockholder and accepted for payment by the Purchaser and with respect to any and all other Shares or other securities or rights issued or issuable in respect of such Units on or after the date hereof) tendered by the HolderShares. All such powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Units Shares. Such appointment will be effective when, and only to the extent that, the Purchaser accepts for payment Shares tendered by such stockholder as provided herein. Upon such appointment, all prior powers of attorney attorney, proxies and proxies consents given by the Holder such stockholder with respect to the Units will be revokedsuch Shares or other securities or rights will, without further action, be revoked and no subsequent powers of attorney and proxies attorney, proxies, consents or revocations may be given by such stockholder (and, if given, will not be deemed effective) by ). The designees of the Holder. Designees of Purchaser will thereby be empowered to exercise all voting and other rights of the Holder with respect to such Units as they in their reasonable discretion may deem properShares and other securities or rights, including, without limitation, in respect of any annual annual, special or special adjourned meeting of the HoldersCompany’s stockholders, or any adjournment or postponement of any such meeting, or in connection with any action actions by written consent in lieu of any such meeting or otherwise, as they in their sole discretion deem proper. The Purchaser reserves the right to require that, in order for Units Shares to be deemed validly tendered, immediately upon the Purchaser's ’s acceptance for payment of such Shares, the Units, Purchaser must be able to exercise full voting voting, consent and other rights with respect to the Units. A tender such Shares and other related securities or rights, including voting at any meeting of Units pursuant to any of the procedures described above will constitute the tendering Holder's acceptance of the terms and conditions of the Offer. Purchaser's acceptance for payment of Units tendered pursuant to the Offer will constitute a binding agreement between the tendering Holder and Purchaser upon the terms and conditions of the Offerstockholders.

Determination of Validity. All questions as to the form of documents and the validity, eligibility (including time of receipt) and acceptance for payment of any tender of Units Shares pursuant to any of the procedures described above will be determined by the Purchaser in its reasonable sole discretion, which determination shall will be final and binding on all parties. The Purchaser reserves the absolute right to reject any or all tenders of Units Shares determined not to be in proper form or the acceptance of or payment for which may, in the opinion of counsel, be unlawful and reserves the absolute right to waive any defect or irregularity in any tender of UnitsShares. Purchaser also reserves the absolute right to waive or amend any or all of the conditions of the Offer prior to the Expiration Date. The Purchaser's interpretation of the terms and conditions of the Offer (including the Letter Letter(s) of Transmittal and its instructionsthe instructions thereto) will be final and binding on all parties. No tender of Units Shares will be deemed to have been validly made, made until all defects and irregularities have been cured or waived. None of the Purchaser, the Parent, the Depositary, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. APPOINTMENT as AS PROXY. By executing and delivering the Letter of Transmittal, a tendering Holder Stockholder irrevocably appoints designees of the Purchaser as his or her its attorneys-in-fact and proxies, with full power of substitutionsubstitution and resubstitution, in the manner set forth in the Letter of Transmittal, to the full extent of the HolderStockholder's rights with respect to the Units (Shares tendered by the Stockholder and purchased by the Purchaser and with respect to any and all other Shares or other securities issued or issuable in respect of such Units those Shares, on or after the date hereof) tendered by of the HolderOffer. All such powers of attorney and proxies will be considered coupled with an interest in the tendered Units Shares. Such appointment will be effective when, and only to the extent that, the Purchaser accepts the Shares for payment. Upon acceptance for payment, all prior powers of attorney and proxies given by the Holder Stockholder with respect to the Units Shares (and any other Shares or other securities so issued in respect of such purchased Shares) will be revoked, without further action, and no subsequent powers of attorney and proxies may be given (and, if given, will not be deemed effective) by the HolderStockholder. Designees The designees of the Purchaser will be empowered to exercise all voting and other rights of the Holder Stockholder with respect to such Units Shares (and any other Shares or securities so issued in respect of such purchased Shares) as they in their reasonable sole discretion may deem proper, including, including without limitation, limitation in respect of any annual or special meeting of the HoldersStockholders, or any adjournment or postponement of any such meeting, or in connection with any action by written consent in lieu of any such meeting or otherwise. The Purchaser reserves the absolute right to require that, in order for Units Shares to be validly tendered, immediately upon the Purchaser's acceptance for payment of the UnitsShares, the Purchaser must be able to exercise full voting and other rights with respect to the UnitsShares, including voting at any meeting of Stockholders then scheduled. A tender The Purchaser's acceptance for payment of Units Shares tendered pursuant to any of the procedures described above will constitute the tendering Holder's acceptance of the terms and conditions of the Offer. Purchaser's acceptance for payment of Units tendered pursuant to the Offer will constitute a binding agreement between the tendering Holder Stockholder and the Purchaser upon the terms and subject to the conditions of the Offer.

Determination of Validity. All questions as to the form of documents and the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Units tendered Notes pursuant to any of the procedures described above and the form and validity (including time of receipt of notices of withdrawal) of all documents will be determined by Purchaser in its reasonable discretion, which determination shall be final and binding on all partiesthe Company. Purchaser The Company reserves the absolute right to reject any or all tenders of Units any Notes determined by it not to be in proper form or if the acceptance of or payment for which such Notes may, in based on the opinion advice of the Company’s counsel, be unlawful and unlawful. The Company also reserves the absolute right right, in its sole discretion prior to the Expiration Date, to waive or amend any condition to the Offer that it is legally permitted to waive or amend and waive any defect or irregularity in any tender with respect to Notes of Unitsany particular Holder, whether or not similar defects or irregularities are waived in the case of other Holders. Purchaser also reserves In the absolute right event that a condition to waive or amend any or all of the conditions of the Offer prior is waived with respect to any particular Holder, the Expiration Datesame condition will be waived with respect to all Holders. Purchaser's The Company’s interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and its instructionsthe instructions thereto) may only be challenged in a court of competent jurisdiction. A non-appealable determination with respect to such matter by a court of competent jurisdiction will be final and binding on upon all partiespersons. No tender of Units will be deemed to have been validly made, made until all defects and or irregularities in such tender have been cured or waived. None of Purchaserthe Company, BioMed, the Dealer Manager, the Depositary, the Information Agent or any other person is under any duty to give notification of any defects or irregularities in any tender of any Notes or notice of withdrawal or will incur any liability for failure to give any such notification. Withdrawal of Tenders A tender of Notes pursuant to the Offer may be withdrawn at any time on or prior to the Expiration Date, but no consideration shall be payable in respect of Notes so withdrawn. Except as otherwise provided in this Offer to Purchase, tenders of Notes pursuant to the Offer are irrevocable. After the Expiration Date, if, for any reason whatsoever, acceptance for payment of, or payment for, any Notes tendered pursuant to the Offer is delayed (whether before or after the Company’s acceptance for payment of Notes) or the Company is unable to accept for payment or pay for the Notes tendered pursuant to the Offer, the Company may (without prejudice to its rights set forth herein) instruct the Depositary to retain tendered Notes, and such Notes may not be withdrawn (subject to Exchange Act Rules 14e-1(c) and 13e-4(f)(5), which require that an offeror pay the consideration offered or return the securities deposited by or on behalf of the investor promptly after the termination or withdrawal of a tender offer). For a withdrawal of Notes tendered pursuant to the Offer to be effective, a written notice of withdrawal or revocation must be received by the Depositary on or prior to the Expiration Date at its address set forth on the back cover of this Offer to Purchase. Any such notice of withdrawal must either, (a) for Notes tendered by means of a Letter of Transmittal, (i) specify the name of the person who tendered the Notes to be withdrawn, (ii) contain a description of the Notes to be withdrawn and identify the certificate number or numbers shown on the particular certificates evidencing such Notes (unless such Notes were tendered by DTC transfer) and the aggregate principal amount represented by such Notes, and (iii) be signed by the Holder of such Notes in the same manner as the original signature on the Letter of Transmittal by which such Notes were tendered (including any required signature guarantees) or be accompanied by evidence sufficient to the Depositary that the Holder withdrawing the tender has succeeded to the beneficial ownership of the Notes, or (b) for Notes tendered through DTC, be in the form of a request for withdrawal message from DTC. If the Notes to be withdrawn have been delivered or otherwise identified to the Depositary, a signed notice of withdrawal is effective immediately upon receipt of such written notice of withdrawal even if physical release is not effected by the Depositary. Any permitted withdrawal of tendered Notes may not be rescinded, and any Notes properly withdrawn will thereafter be deemed not validly tendered; provided, however, that properly withdrawn Notes may be re-tendered, by again following one of the appropriate procedures described in “Procedures for Tendering Notes,” at any time on or prior to the Expiration Date. Any Notes that have been tendered pursuant to the Offer but that are not purchased will be returned to the Holder thereof at the Company’s expense promptly following the earlier to occur of the Expiration Date or the date on which the Offer is terminated without any Notes being purchased thereunder. All questions as to the validity, form and eligibility (including time of receipt) of notices of withdrawal will be determined by the Company. None of the Company, BioMed, the Depositary, the Dealer Manager, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders any notice of withdrawal, or incur any liability for failure to give any such notification. APPOINTMENT as PROXY. By executing and delivering the Letter of Transmittal, a tendering Holder irrevocably appoints designees of Purchaser as his or her attorneys-in-fact and proxies, with full power of substitution, in the manner set forth in the Letter of Transmittal, to the full extent of the Holder's rights with respect to the Units (and with respect to any and all other securities issued or issuable in respect of such Units on or after the date hereof) tendered by the Holder. All such powers of attorney and proxies will be considered coupled with an interest in the tendered Units and all prior powers of attorney and proxies given by the Holder with respect to the Units will be revoked, without further action, and no subsequent powers of attorney and proxies may be given (and, if given, will not be deemed effective) by the Holder. Designees of Purchaser will be empowered to exercise all voting and other rights of the Holder with respect to such Units as they in their reasonable discretion may deem proper, including, without limitation, in respect of any annual or special meeting of the Holders, or any adjournment or postponement of any such meeting, or in connection with any action by written consent in lieu of any such meeting or otherwise. Purchaser reserves the right to require that, in order for Units to be validly tendered, immediately upon Purchaser's acceptance for payment of the Units, Purchaser must be able to exercise full voting and other rights with respect to the Units. A tender of Units pursuant to any of the procedures described above will constitute the tendering Holder's acceptance of the terms and conditions of the Offer. Purchaser's acceptance for payment of Units tendered pursuant to the Offer will constitute a binding agreement between the tendering Holder and Purchaser upon the terms and conditions of the Offer.

Determination of Validity. All questions as to the form of documents and the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Units pursuant to any of the procedures described above Shares will be determined by Purchaser us in its reasonable our sole discretion, which determination determinations shall be final and binding on all parties. Purchaser reserves We note, however, that stockholders may challenge our determinations in a court of competent jurisdiction. We reserve the absolute right to reject any or and all tenders of Units determined we determine not to be in proper form or the acceptance for payment of or payment for which may, in the opinion of our counsel, be unlawful and reserves unlawful. We also reserve the absolute right to waive any defect or irregularity in any the tender of Unitsany Shares of any particular stockholder, whether or not similar defects or irregularities are waived in the case of other stockholders. Purchaser also reserves No tender of Shares will be deemed to have been properly made until all defects and irregularities Table of Contents have been cured or waived to our satisfaction. Unless waived, any defects or irregularities in connection with tenders must be cured within such time as we shall determine. None of us, Salix, the absolute right Depositary, the Information Agent or any other person is or will be obligated to waive give notice of any defects or amend irregularities in tenders and none of them will incur any or all of the conditions of the Offer prior liability for failure to the Expiration Dategive any such notice. Purchaser's Our interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and its instructionsthe instructions thereto) will be final and binding on all partiesdetermined by us in our sole discretion. No tender of Units will be deemed to have been validly made, until all defects and irregularities have been cured or waived. None of Purchaser, the Depositary, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. APPOINTMENT Appointment as PROXYProxy. By executing and delivering the Letter of TransmittalTransmittal (or taking action resulting in the delivery of an Agent’s Message) as set forth above, a unless Shares relating to such Letter of Transmittal or Agent’s Message are properly withdrawn pursuant to the Offer, the tendering Holder stockholder will irrevocably appoints designees appoint our designees, and each of Purchaser them, as his or her such stockholder’s attorneys-in-fact and proxies, with full power of substitution, proxies in the manner set forth in the Letter of Transmittal, each with full power of substitution, to the full extent of the Holder's such stockholder’s rights with respect to the Units (Shares tendered by such stockholder and accepted for payment by us and with respect to any and all other Shares or other securities or rights issued or issuable in respect of such Units on or after the date hereof) tendered by the HolderShares. All such powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Units Shares. Such appointment will be effective if and when, and only to the extent that, we accept such Shares for payment pursuant to the Offer. Upon such appointment, all prior powers of attorney attorney, proxies and proxies consents given by the Holder such stockholder with respect to the Units will be revokedsuch Shares or other securities or rights will, without further action, be revoked and no subsequent powers of attorney and proxies attorney, proxies, consents or revocations may be given by such stockholder (and, if given, will not be deemed effective) by the Holderwith respect thereto. Designees Each of Purchaser our designees will thereby be empowered to exercise all voting and other rights of the Holder with respect to such Units as they in their reasonable discretion may deem properShares and other securities or rights, including, without limitation, in respect of any annual annual, special or special adjourned meeting of the HoldersSantarus’ stockholders, or any adjournment or postponement of any such meeting, or in connection with any action actions by written consent in lieu of any such meeting or otherwise, as such designee in its sole discretion deems proper. Purchaser reserves We reserve the right to require that, in order for Units Shares to be deemed validly tendered, immediately upon Purchaser's acceptance for payment the occurrence of the UnitsAcceptance Time, Purchaser we must be able to exercise full voting voting, consent and other rights with respect to the Unitssuch Shares and other securities and rights, including voting at any meeting of stockholders. A tender The foregoing powers of Units pursuant to any of the procedures described above will constitute the tendering Holder's acceptance of the terms attorney and conditions of the Offer. Purchaser's proxies are effective only upon acceptance for payment of Units tendered Shares pursuant to the Offer. The Offer will does not constitute a binding agreement between the tendering Holder and Purchaser upon the terms and conditions solicitation of the Offerproxies, absent a purchase of Shares, for any meeting of Santarus’ stockholders.

Determination of Validity. All questions as to the form of documents and the validity, eligibility (including time of receipt) and acceptance for payment of any tender of Units pursuant to any of the procedures described above will be determined by Purchaser in its reasonable sole discretion, which determination shall be final and binding on all parties. Purchaser reserves the absolute right to reject any or all tenders of Units determined not to be in proper form or the acceptance of or payment for which may, in the opinion of counsel, be unlawful and reserves the absolute right to waive any defect or irregularity in any tender of Units. Purchaser also reserves the absolute right to waive or amend any or all of the conditions of the Offer prior to the Expiration DateOffer. Purchaser's interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and its instructions) will be final and binding on all parties. No tender of Units will be deemed to have been validly made, until all defects and irregularities have been cured or waived. None of Purchaser, the Depositary, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. APPOINTMENT as PROXY. By executing and delivering the Letter of Transmittal, a tendering Holder irrevocably appoints designees of Purchaser as his or her attorneys-in-fact and proxies, with full power of substitution, in the manner set forth in the Letter of Transmittal, to the full extent of the Holder's rights with respect to the Units (and with respect to any and all other securities issued or issuable in respect of such Units on or after the date hereof) tendered by the Holder. All such powers of attorney and proxies will be considered coupled with an interest in the tendered Units and all prior powers of attorney and proxies given by the Holder with respect to the Units will be revoked, without further action, and no subsequent powers of attorney and proxies may be given (and, if given, will not be deemed effective) by the Holder. Designees of Purchaser will be empowered to exercise all voting and other rights of the Holder with respect to such Units as they in their reasonable sole discretion may deem proper, including, without limitation, in respect of any annual or special meeting of the Holders, or any adjournment or postponement of any such meeting, or in connection with any action by written consent in lieu of any such meeting or otherwise. Purchaser reserves the absolute right to require that, in order for Units to be validly tendered, immediately upon Purchaser's acceptance for payment of the Units, Purchaser must be able to exercise full voting and other rights with respect to the Units. A tender of Units pursuant to any of the procedures described above will constitute the tendering Holder's acceptance of the terms and conditions of the Offer. Purchaser's acceptance for payment of Units tendered pursuant to the Offer will constitute a binding agreement between the tendering Holder and Purchaser upon the terms and conditions of the Offer.

Determination of Validity. All questions as to the form of documents and the validity, eligibility (including time of receipt) and acceptance for payment of any tender of Units CCPRs pursuant to any of the procedures described above will be determined by Purchaser in its reasonable sole discretion, which determination shall be final and binding on all parties. Purchaser reserves the absolute right to reject any or all tenders of Units CCPRs determined not to be in proper form or the acceptance of or payment for which may, in the opinion of counsel, be unlawful and reserves the absolute right to waive any defect or irregularity in any tender of UnitsCCPRs. Purchaser also reserves the absolute right to waive or amend any or all of the conditions of the Offer prior to the Expiration DateOffer. Purchaser's interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and its instructions) will be final and binding on all parties. No tender of Units CCPRs will be deemed to have been validly made, until all defects and irregularities have been cured or waived. None of Purchaser, the Depositary, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. APPOINTMENT as PROXY. By executing and delivering the Letter of Transmittal, a tendering Holder irrevocably appoints designees of Purchaser as his or her attorneys-in-fact and proxies, with full power of substitution, in the manner set forth in the Letter of Transmittal, to the full extent of the Holder's rights with respect to the Units CCPRs (and with respect to any and all other securities issued or issuable in respect of such Units CCPRs on or after the date hereof) tendered by the Holder. All such powers of attorney and proxies will be considered coupled with an interest in the tendered Units CCPRs and all prior powers of attorney and proxies given by the Holder with respect to the Units CCPRs will be revoked, without further action, and no subsequent powers of attorney and proxies may be given (and, if given, will not be deemed effective) by the Holder. Designees of Purchaser will be empowered to exercise all voting and other rights of the Holder with respect to such Units CCPRs as they in their reasonable sole discretion may deem proper, including, without limitation, in respect of any annual or special meeting of the Holders, or any adjournment or postponement of any such meeting, or in connection with any action by written consent in lieu of any such meeting or otherwise. Purchaser reserves the absolute right to require that, in order for Units CCPRs to be validly tendered, immediately upon Purchaser's acceptance for payment of the UnitsCCPRs, Purchaser must be able to exercise full voting and other rights with respect to the UnitsCCPRs. A tender of Units CCPRs pursuant to any of the procedures described above will constitute the tendering Holder's acceptance of the terms and conditions of the Offer. Purchaser's acceptance for payment of Units CCPRs tendered pursuant to the Offer will constitute a binding agreement between the tendering Holder and Purchaser upon the terms and conditions of the Offer. The Depositary has agreed to act as such for the convenience of the Purchaser. The Depositary will act upon the instructions of the Purchaser and will deliver all documents deposited with it as instructed by the Purchaser. The Depositary has no obligation to any Holder who tenders CCPRs. If any controversy arises between the Purchaser and any other person concerning the CCPRs or concerning this Offer to Purchase, the Letter of Transmittal, or the subject matter of any thereof, the Depositary will not be required to determine the controversy or to take any action regarding it. The Depositary may hold all documents and property and may wait for settlement of any such controversy by final appropriate legal proceedings or other means as, in the Depositary's discretion, may be required, notwithstanding any other provision of this Offer to Purchase or the Letter of Transmittal. In such event, the Depositary will not be liable for any interest, damages or expenses. Furthermore, the Depositary may at its option, file an action of interpleader requiring such persons to answer and litigate any claims and rights among themselves. The Depositary is authorized to deposit with the clerk of the court all documents and property held. Upon initiating such action, the Depositary shall be fully released and discharged of and from all obligations and liabilities involving the documents or property, except for obligations and liabilities arising by reason of the prior gross negligence or willful misconduct on the part of the Depositary.

Determination of Validity. All questions as to the form of documents and the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Units pursuant to any of the procedures described above Shares will be determined by Purchaser us, in its reasonable our sole discretion, which determination shall will be final and binding on all parties, subject to any judgment of any court of competent jurisdiction. Purchaser reserves We reserve the absolute right to reject any or and all tenders of Units determined by us not to be in proper form or the acceptance for payment of or payment for which may, in the opinion of counselour opinion, be unlawful and reserves unlawful. We also reserve the absolute right to waive any defect or irregularity in any the tender of Units. Purchaser also reserves any Shares of any particular stockholder, TABLE OF CONTENTS whether or not similar defects or irregularities are waived in the absolute right to waive or amend any or all case of the conditions of the Offer prior to the Expiration Date. Purchaser's interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and its instructions) will be final and binding on all partiesother stockholders. No tender of Units Shares will be deemed to have been validly made, made until all defects and irregularities have been cured or waivedwaived to our satisfaction. None of SBP, Purchaser, Parent or any of their respective affiliates or assigns, the Depositary, Innisfree M&A Incorporated, which is the information agent for the Offer (the “Information Agent Agent”) or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. APPOINTMENT Subject to applicable law as PROXYapplied by a court of competent jurisdiction and the terms of the Merger Agreement, our interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions thereto) will be final and binding. Appointment as Proxy. By executing and delivering the Letter of TransmittalTransmittal as set forth above, a the tendering Holder stockholder will irrevocably appoints appoint designees of Purchaser as his or her such stockholder’s attorneys-in-fact and proxies, with full power of substitution, proxies in the manner set forth in the Letter of Transmittal, each with full power of substitution, to the full extent of the Holder's such stockholder’s rights with respect to the Units (Shares tendered by such stockholder and accepted for payment by Purchaser and with respect to any and all other Shares or other securities or rights issued or issuable in respect of such Units on or after the date hereof) tendered by the HolderShares. All such powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Units Shares. Such appointment will be effective when, and only to the extent that, we accept for payment the Shares tendered by such stockholder as provided herein. Upon such appointment, all prior powers of attorney attorney, proxies and proxies consents given by the Holder such stockholder with respect to the Units will be revokedsuch Shares or other securities or rights will, without further action, be revoked and no subsequent powers of attorney and proxies attorney, proxies, consents or revocations may be given by such stockholder (and, if given, will not be deemed effective) by the Holder). Designees The designees of Purchaser will thereby be empowered to exercise all voting and other rights of the Holder with respect to such Units as they in their reasonable discretion may deem properShares and other securities or rights, including, without limitation, in respect of any annual annual, special or special adjourned meeting of the HoldersCompany’s stockholders, or any adjournment or postponement of any such meeting, or in connection with any action actions by written consent in lieu of any such meeting or otherwise, as they in their sole discretion deem proper. Purchaser reserves We reserve the right to require that, in order for Units Shares to be deemed validly tendered, immediately upon Purchaser's our acceptance for payment of the Unitssuch Shares, Purchaser or its designees must be able to exercise full voting voting, consent and other rights with respect to such Shares and other related securities or rights, including voting at any meeting of stockholders of the UnitsCompany. A tender of Units The Offer is being made only for Shares, and not for any outstanding option to purchase Shares (each, a “Company Option”), restricted stock unit award granted pursuant to any of the procedures described above will constitute Company’s equity incentive plans or otherwise (each, a “Company RSU” and together, the tendering Holder's acceptance of the terms and conditions of the Offer. Purchaser's acceptance for payment of Units tendered “Company RSUs”) or warrant to purchase Shares pursuant to the existing warrant agreements of the Company (each, a “Company Warrant”). Holders of outstanding vested but unexercised Company Options may participate in the Offer will constitute a binding agreement between the tendering Holder and Purchaser upon only if they first validly exercise such Company Options in accordance with the terms and conditions of the Offerapplicable Company’s equity incentive plan and the applicable Company Option award agreements of the Company and tender the Shares, if any, issued upon such exercise. Holders of Company RSUs will only be eligible to participate in the Offer if such Company RSUs are settled in accordance with the terms of the applicable Company equity incentive plan under which the Company RSUs were granted and the applicable Company RSU award agreement of the Company and the holder tenders the Shares, if any, issued upon such settlement sufficiently in advance of the expiration of the Offer on the Expiration Date to assure that the holder will have sufficient time to comply with the procedures for tendering Shares described in this Section 3. Holders of outstanding unexercised Company Warrants may participate in the Offer only if they first exercise such Company Warrants in accordance with the terms of the warrant agreement and tender the Shares, if any, issued upon such exercise. Any such exercise should be completed sufficiently in advance of the Expiration Date to assure that the holder will have sufficient time to comply with the procedures for tendering Shares described in this Section 3. See Section 11 — “The Merger Agreement; Other Agreements” for additional information regarding the treatment of outstanding equity awards in the Merger.