TENDER AND SUPPORT AGREEMENT
Exhibit 10.2
This TENDER AND SUPPORT AGREEMENT (this “Agreement”), dated as of October 22, 2024, is entered into by and among DPV Parent, Inc., a Delaware corporation (“Parent”), DPV MergerSub, Inc., a Delaware corporation and wholly-owned subsidiary of Parent (“Merger Sub”), and the Person or Persons set forth on Schedule A hereto (“Stockholder”).
All capitalized terms used but not otherwise defined in this Agreement shall have the respective meanings ascribed to such terms in the Merger Agreement (as defined below).
WHEREAS, as of the date hereof, Stockholder is the record and beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the number of Shares set forth opposite
Stockholder’s name on Schedule A (all such Shares, together with any Shares that are hereafter issued to or otherwise directly or indirectly acquired or beneficially owned by Stockholder prior to the Termination Date (as defined below),
whether or not through Company Stock Awards or otherwise (collectively “After-Acquired Shares”), being referred to herein as the “Subject Shares”), provided that “Subject Shares” shall not include Shares beneficially owned in
the form of Company Stock Awards, but only to the extent such Company Stock Awards remain unvested, unsettled, restricted or unexercised, as the case may be;
WHEREAS, concurrently with the execution hereof, Parent, Merger Sub, Lumos Pharma, Inc., a Delaware corporation (the “Company”), and solely for the purposes of Section
9.17 thereof, Double Point Ventures LLC, a Delaware limited liability company, are entering into an Agreement and Plan of Merger, dated as of even date herewith (as it may be amended pursuant to the terms thereof, the “Merger Agreement”),
which provides, among other things, for Merger Sub to commence an offer to purchase all of the outstanding Shares and, following consummation of the Offer, for the Merger of Merger Sub with and into the Company, upon the terms and subject to the
conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to their willingness to enter into the Merger Agreement, and as an inducement and in consideration for Parent and Merger Sub to enter into the Merger
Agreement, Stockholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth below and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE I
AGREEMENT TO TENDER
Section 1.01 Agreement to Tender. Subject to the terms of this Agreement, until the Termination Date,
Stockholder hereby agrees to accept the Offer with respect to all of the Subject Shares and tender or cause to be tendered in the Offer all of the Subject Shares that Stockholder is permitted to tender under applicable Law pursuant to and in
accordance with the terms of the Offer, free and clear of all Share Encumbrances except for Permitted Share Encumbrances (each as defined below). Without limiting the generality of the foregoing, as promptly as practicable after, but in no event
later than ten (10) business days after the receipt by Stockholder of the Offer Documents (or in the case of any After-Acquired Shares directly or indirectly issued to or acquired or otherwise beneficially owned by Stockholder subsequent to such
tenth (10th) business day, no later than the earlier of (a) five (5) Business Days after such acquisition, and (b) one (1) Business Day prior to the Expiration
Date), Stockholder shall tender, or cause to be tendered, such Stockholder’s Subject Shares into the Offer. Stockholder agrees that, once any of the Subject Shares are tendered, Stockholder will not withdraw such Subject Shares from the Offer,
unless and until (i) the Merger Agreement shall have been validly terminated in accordance with its terms, (ii) the Offer shall have been terminated, withdrawn or shall have expired, or (iii) this Agreement shall have been terminated in
accordance with Section 4.02 hereof. Upon the occurrence of (i), (ii) or (iii) in the preceding sentence, Parent and Merger Sub shall promptly return and shall cause the Paying Agent to promptly return, all Subject Shares tendered by
Stockholder. Nothing herein shall require Stockholder to exercise any Company Options, prohibit Stockholder from exercising any Company Stock Options or require Stockholder to tender any Company Stock Options.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder represents and warrants to Parent and Merger Sub as follows:
Section 2.01 Authorization; Binding Agreement. If Stockholder is not an individual, (a) Stockholder is
duly organized and validly existing in good standing under the Laws of the jurisdiction in which it is incorporated or constituted, (b) the consummation of the transactions contemplated hereby are within Stockholder’s entity powers and have been
duly authorized by all necessary entity actions on the part of Stockholder, and (c) Stockholder has full power and authority to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby. If Stockholder is
an individual, Stockholder has full legal capacity, right and authority to execute and deliver this Agreement and to perform Stockholder’s obligations hereunder. This Agreement has been duly and validly executed and delivered by Stockholder and
constitutes a valid and, assuming due authorization, execution and delivery by Xxxxxx and Merger Sub, binding obligation of Stockholder enforceable against Stockholder in accordance with its terms (except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and to general equity principles). If Stockholder is married, and any of the Subject Shares constitute community property or
otherwise need spousal or other approval for this Agreement to be legal, valid and binding, this Agreement has been duly executed and delivered by Stockholder’s spouse and is enforceable against Stockholder’s spouse in accordance with its terms
(except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and to general equity principles).
Section 2.02 Non-Contravention. Neither the execution and delivery of this Agreement by Stockholder nor
the consummation of the transactions contemplated hereby nor compliance by Stockholder with any provisions herein will (a) if Stockholder is not an individual, violate, contravene or conflict with, or result in a breach of any provision of, the
certificate of incorporation or bylaws (or other similar governing documents) of Stockholder, (b) require any consent of, or registration, declaration or filing with, any Governmental Entity on the part of Stockholder, except for the filing of
such reports as may be required under Sections 13(d) and 16 of the Exchange Act, (c) violate, contravene or conflict with, or result in a breach of any provisions of, or require any consent, waiver or approval or result in a default or loss of a
benefit (or give rise to any right of termination, cancellation, modification or acceleration or any event that, with the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under any of
the terms, conditions or provisions of any Contract or other instrument or obligation to which Stockholder is a party or by which Stockholder or any of the Subject Shares are bound, (d) result (or, with the giving of notice, the passage of time
or otherwise, would result) in the creation or imposition of any Lien of any kind on any asset of Stockholder, or (e) violate, contravene or conflict with any Law or order applicable to Stockholder or by which any of the Subject Shares are bound.
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Section 2.03 Ownership of Subject Shares; Total Shares. Stockholder is the record and/or beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of all of the Subject Shares and has good and marketable title to all of the Subject Shares free and clear of any Liens, proxies, voting trusts or agreements, options or rights,
understandings or arrangements inconsistent with this Agreement or the transactions contemplated hereby, or any other encumbrances or restrictions whatsoever on title, transfer or exercise of any rights of a stockholder in respect of the Subject
Shares (collectively, “Share Encumbrances”), except for any such Share Encumbrance that may be imposed pursuant to (a) this Agreement and (b) any applicable restrictions on transfer under the Securities Act or any state securities law
(collectively, “Permitted Share Encumbrances”). The Shares listed on Schedule A opposite Stockholder’s name constitute all of the Shares owned by Stockholder, beneficially or of record, as of the date hereof, and Stockholder and
its Affiliates do not own, beneficially or of record, any restricted stock, restricted stock units, options, warrants or other rights to acquire Shares or any securities convertible into or exchangeable for Shares, unless otherwise set forth on Schedule
A.
Section 2.04 Voting Power. Stockholder has full voting power with respect to such Stockholder’s Subject
Shares, and full power of disposition, full power to issue instructions with respect to the matters set forth herein and full power to agree to all of the matters set forth in this Agreement, in each case, with respect to all of such
Stockholder’s Subject Shares.
Section 2.05 Reliance. Stockholder has had the opportunity to review the Merger Agreement and this
Agreement with counsel of its own choosing. Stockholder understands and acknowledges that Parent and Merger Sub are entering into the Merger Agreement in reliance upon Stockholder’s execution, delivery and performance of this Agreement.
Section 2.06 Absence of Litigation. With respect to Stockholder, as of the date hereof, there is no
Action pending against or, to the knowledge of Stockholder, threatened against Stockholder or any of Stockholder’s properties or assets (including any Subject Shares) before or by any Governmental Entity that would reasonably be expected to
prevent, delay or impair the consummation by Stockholder of the transactions contemplated by this Agreement or otherwise impair Stockholder’s ability to perform its obligations hereunder.
Section 2.07 Brokers. No broker, finder, financial advisor, investment banker or other Person is
entitled to any brokerage, finder’s, financial advisor’s or other similar fee or commission from Parent, Merger Sub or the Company in connection with the transactions contemplated hereby based upon arrangements made by or on behalf of
Stockholder.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Each of Parent and Merger Sub hereby, jointly and severally, represents and warrants to Stockholder as follows:
Section 3.01 Authorization; Binding Agreement. (a) each of Parent and Merger Sub is a corporation, duly
incorporated and validly existing in good standing under the Laws of the jurisdiction in which it has been incorporated, (b) the consummation of the transactions contemplated hereby are within each of Parent’s and Merger Sub’s powers and have
been duly authorized by all necessary entity actions on the part of each of Parent and Merger Sub, and (c) each of Parent and Merger Sub has full power and authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by each of Parent and Xxxxxx Sub and, assuming due authorization, execution and delivery by Stockholder, constitutes a valid and binding obligation
of each of Parent and Merger Sub enforceable against each of Parent and Merger Sub in accordance with its terms (except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting
creditors’ rights generally and to general equity principles).
Section 3.02 Non-Contravention. Neither the execution and delivery of this Agreement by Parent or Merger
Sub nor the consummation of the transactions contemplated hereby nor compliance by Parent or Merger Sub with any provisions herein will (a) violate, contravene or conflict with, or result in a breach of any provision of either the certificate of
incorporation or bylaws of Parent or Merger Sub, (b) violate, contravene or conflict with, or result in a breach of any provisions of, or require any consent, waiver or approval or result in a default or loss of a benefit (or give rise to any
right of termination, cancellation, modification or acceleration or any event that, with the giving of notice, the passage of time or otherwise, would constitute a default or give rise to any such right) under any of the terms, conditions or
provisions of any Contract or other instrument or obligation to which Parent or Merger Sub is a party or by which Parent or Merger Sub or any of their assets are bound, or (c) violate, contravene or conflict with any Law or order applicable to
Parent or Merger Sub or by which any of their respective properties are bound, except, in the case of (b) and (c), where any such violation, contravention or conflict that would not, either individually or in the aggregate, materially impair,
impede, delay or frustrate the ability of Parent or Merger Sub to perform their respective obligations hereunder or to consummate the transactions contemplated by the Merger Agreement.
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ARTICLE IV
ADDITIONAL COVENANTS OF STOCKHOLDER
Stockholder hereby covenants and agrees that until the Termination Date:
Section 4.01 No Transfer; No Inconsistent Arrangements. Except as provided hereunder, Stockholder shall
not, directly or indirectly, (a) create or permit to exist any Share Encumbrance, other than Permitted Share Encumbrances, on any of the Subject Shares, (b) transfer, sell, assign, gift, hedge, pledge or otherwise dispose of (including, for the
avoidance of doubt, by depositing, submitting or otherwise tendering any such Subject Shares into any tender or exchange offer), or enter into any derivative arrangement with respect to (collectively, “Transfer”), any of the Subject
Shares, or any right or interest therein (or consent to any of the foregoing), (c) enter into any Contract, option or other agreement (including any profit sharing agreement), arrangement or understanding with respect to any Transfer of the
Subject Shares or any interest therein, or (d) take or permit any other action that would in any way restrict, limit or interfere with the performance of Stockholder’s obligations hereunder or otherwise make any representation or warranty of
Stockholder herein untrue or incorrect; provided, however, that the foregoing restrictions shall not apply to Transfers of Subject Shares to (i) an Affiliate of Stockholder, (ii) any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned or by will or intestacy, (iii) Transfer the Subject Shares by will, other testamentary document or intestate succession to the legal representative, heir, beneficiary or a member of the
immediate family of the Stockholder, (iv) Transfer the Subject Shares to stockholders, direct or indirect affiliates (within the meaning set forth in Rule 405 under the Securities Act), current or former partners (general or limited), members or
managers of the Stockholder, as applicable, or to the estates of any such stockholders, affiliates, partners, members or managers, or to another corporation, partnership, limited liability company or other business entity that controls, is
controlled by or is under common control with the Stockholder; (v) make Transfers that occur by operation of law pursuant to a qualified domestic relations order or in connection with a divorce settlement, (vi) make Transfers not involving a
change in beneficial ownership; (vii) if the Stockholder is a trust, Transfer the Subject Shares to any beneficiary of the Stockholder or the estate of any such beneficiary; (viii) exercise an option or warrant to purchase Shares or settle a
restricted stock unit or other equity award (including a net or cashless exercise of such option or warrant); (ix) Transfer Shares to the Company to cover tax withholding obligations of the Stockholder in connection with the vesting, settlement
or exercise of any options, warrants, restricted stock units or other equity awards, as applicable, provided that the underlying Shares shall continue to be subject to the restrictions on transfer
set forth in this Agreement; and (x) Transfer Shares to the Company pursuant to arrangements under which the Company has the option to repurchase such Shares; provided, further, that, with respect to (i) through (vii) such
transferee executes a written agreement, in form and substance reasonably acceptable to Parent, to assume all of Stockholder’s obligations hereunder in respect of the Subject Shares subject to such Transfer and to be bound by the terms of this
Agreement with respect to such Subject Shares; provided, further, that no filing under the Exchange Act or other public announcement shall be required or shall be made voluntarily in connection with such Transfer (other than
filings made in respect of involuntary Transfers) (any such Transfer, a “Permitted Transfer”). Any action taken in violation of the foregoing sentence shall be null and void ab initio. If any
involuntary Transfer of any of the Subject Shares shall occur (including, but not limited to, a sale by Stockholder’s trustee in any bankruptcy, or a sale to a purchaser at any creditor’s or court sale), the transferee (which term, as used
herein, shall include any and all transferees and subsequent transferees of the initial transferee) shall take and hold such Subject Shares subject to all of the restrictions, obligations, liabilities and rights under this Agreement, which shall
continue in full force and effect until valid termination of this Agreement. Notwithstanding anything in this Agreement to the contrary, until the Termination Date, Stockholder shall not, directly or indirectly, accept any tender offer or
exchange offer that constitutes an Acquisition Proposal and shall not tender any Subject Shares into any such tender offer or exchange offer.
Section 4.02 Documentation and Information. Stockholder shall not make any public announcement regarding
this Agreement or the transactions contemplated hereby without the prior written consent of Parent (such consent not to be unreasonably withheld or delayed), except as may be required by applicable Law (provided that reasonable advance
notice of any such disclosure shall be provided to Parent). Stockholder consents to and hereby authorizes Parent and Merger Sub to publish and disclose in all documents and schedules filed with the SEC or other Governmental Entity or applicable
securities exchange, and any press release or other disclosure document that is required in connection with the Offer, the Merger and any other transactions contemplated by the Merger Agreement, Stockholder’s identity and ownership of the Subject
Shares, the existence of this Agreement and the nature of Stockholder’s commitments and obligations under this Agreement, and Stockholder acknowledges that Parent and Merger Sub may, in Parent’s sole discretion, file this Agreement or a form
hereof with the SEC or any other Governmental Entity or securities exchange. Stockholder agrees to promptly provide Parent any information it may reasonably require for the preparation of any such disclosure documents, and Stockholder agrees to
promptly notify Parent of any required corrections with respect to any written information supplied by Stockholder specifically for use in any such disclosure document, if and to the extent that any such information shall have become false or
misleading in any material respect.
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Section 4.03 Adjustments. In the event of any stock split, stock dividend, merger, reorganization,
recapitalization, reclassification, combination, exchange of shares or the like of the capital stock of the Company affecting the Subject Shares, the terms of this Agreement shall apply to the resulting securities.
Section 4.04 Waiver of Certain Actions. Stockholder hereby agrees not to commence or participate in, and
to take all actions necessary to opt out of any class in any class action with respect to, any claim, derivative or otherwise, against Parent, Merger Sub, the Company or any of their respective successors (a) challenging the validity of, or
seeking to enjoin or delay the operation of, any provision of this Agreement or the Merger Agreement (including any claim seeking to enjoin or delay the consummation of the Offer or the Merger) or (b) alleging a breach of any duty of the Company
Board in connection with the Merger Agreement, this Agreement or the transactions contemplated thereby or hereby. Notwithstanding the provisions of Section 4.02, in the event the Offer is consummated, this Section 3.04 shall
survive the consummation of the Offer indefinitely.
Section 4.05 Reasonable Best Efforts. Unless the Merger Agreement has been validly terminated in
accordance with its terms, Stockholder shall (at Parent’s sole expense) use its reasonable best efforts to take, or cause to be taken, any and all actions and to do, or cause to be done, and to assist Parent, Merger Sub and the Company in doing,
any and all things, necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated by the Merger Agreement.
Section 4.06 Appraisal Rights. Subject to the other terms of this Agreement, Stockholder hereby waives
and agrees not to exercise any rights (including under Section 262 of the DGCL) to demand appraisal of any Shares or rights to dissent from the Merger which may arise with respect to the Merger.
ARTICLE V
MISCELLANEOUS
Section 5.01 Notices. All notices and other communications hereunder shall be in writing and
shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile or e-mail, upon written confirmation of receipt by e-mail or otherwise, (b) on the first Business Day following the date of dispatch if delivered
utilizing a next-day service by a recognized next-day courier or (c) on the earlier of confirmed receipt or the fifth Business Day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage
prepaid. All notices hereunder shall be delivered: (i) if to Parent or Merger Sub, to the address or e-mail address set forth in Section 9.2 of the Merger Agreement and (ii) if to Stockholder, to Stockholder’s
address or e-mail address set forth on a signature page hereto, or to such other address or e-mail address as such party may hereafter specify for the purpose by notice to each other party hereto.
Section 5.02 Termination. This Agreement shall terminate automatically, without any notice or
other action by any Person, upon the first to occur of (a) the valid termination of the Merger Agreement in accordance with its terms, (b) the Effective Time, (c) the date upon which the Company Board makes an Adverse Recommendation Change, (d)
upon mutual written consent of the parties to terminate this Agreement, and (e) the date of any modification, waiver or amendment of the Merger Agreement in a manner that reduces the amount or changes the form of consideration payable thereunder
to Stockholder (the date of any such termination being referred to herein as the “Termination Date”). Upon termination of this Agreement, no party shall have any further obligations or liabilities under this Agreement; provided, however,
that (i) nothing set forth in this Section 4.02 shall relieve any party from liability for any willful breach of this Agreement prior to termination hereof, (ii) the provisions of this Article IV (excluding Section 4.14)
shall survive any termination of this Agreement, and (iii) the provisions of Section 3.04 shall survive any termination of this Agreement in the event the Offer has been consummated. Except as provided in the preceding sentence, the
representations, warranties, covenants and agreements in this Agreement, and all rights and remedies with respect thereto, shall not survive the Termination Date.
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Section 5.03 Amendment; Waiver. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the parties. Any agreement on the part of a party to any extension or waiver with respect to this Agreement shall be valid only if set forth in an instrument in writing signed on behalf of such party. The failure of
any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.
Section 5.04 Expenses. All fees and expenses incurred in connection herewith and the transactions
contemplated hereby shall be paid by the party incurring such fees and expenses, whether or not the Offer or the Merger is consummated.
Section 5.05 Entire Agreement. This Agreement, together with Schedule A, and the other documents
and certificates delivered pursuant hereto, constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to, the subject matter of this Agreement.
Section 5.06 Assignment. Except in connection with a Permitted Transfer, neither this Agreement nor any
of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise by any of the parties without the prior written consent of the other parties, except that either Parent or
Merger Sub may assign, in its sole discretion, any of or all its rights, interests and obligations under this Agreement to Parent (in the case of Merger Sub) or to any direct or indirect Subsidiary of Parent. Any purported assignment without
such consent shall be void. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.
Section 5.07 Specific Enforcement; Jurisdiction.
(a) The parties acknowledge and agree that irreparable damage would occur in the event that
any provision of this Agreement were not performed in accordance with its specific terms or was otherwise breached, and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions, or any other appropriate form of equitable relief, to prevent breaches of this Agreement and to enforce specifically the performance of the terms and provisions of this Agreement in any court
referred to in Section 4.07(b), without the necessity of proving the inadequacy of money damages as a remedy (and each party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), this being
in addition to any other remedy to which they are entitled at law or in equity. Each of the parties acknowledges and agrees that the right of specific enforcement is an integral part of the transactions contemplated by this Agreement and without
such right, none of the parties would have entered into this Agreement.
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(b) Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement
brought by any party or its Affiliates against any other party or its Affiliates shall be brought and determined in the Court of Chancery of the State of Delaware, provided that, if jurisdiction is not then available in the Court of
Chancery of the State of Delaware, then any such legal action or proceeding may be brought in any federal court located in the State of Delaware. Each of the parties hereby irrevocably consent to the jurisdiction of the aforesaid courts for itself
and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby. Each of the parties agrees not to commence any
action, suit or proceeding relating thereto except in the courts described above in Delaware, other than actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described
herein. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court
or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the suit, action or proceeding in
any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
Section 5.08 Waiver of Jury Trial. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 5.09 Governing Law. This Agreement shall be governed by, and construed in accordance
with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Delaware.
Section 5.10 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and nothing in this Agreement, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Agreement.
Section 5.11 Severability. Whenever possible, each provision or portion of any provision of
this Agreement shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any
applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.
Section 5.12 Counterparts. This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. This Agreement may be executed by.pdf signature or any
electronic signature complying with the U.S. ESIGN Act of 2000 (e.g., xxx.xxxxxxxx.xxx) and such signature shall constitute an original for all purposes.
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Section 5.13 Interpretation. The rules of construction set forth in Section 9.4 of the Merger
Agreement shall apply to this Agreement, mutatis mutandis.
Section 5.14 Further Assurances. Stockholder shall execute and deliver, or cause to be executed and
delivered, all further documents and instruments and use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations, to
perform its obligations under this Agreement.
Section 5.15 Capacity as Stockholder. Stockholder signs this Agreement solely in Stockholder’s capacity
as a stockholder of the Company, and not in Stockholder’s capacity as a director, officer or employee of the Company. Notwithstanding anything herein to the contrary, nothing in this Agreement shall in any way restrict a director or officer of
the Company in the exercise of his or her fiduciary duties in his or her capacity as a director or officer of the Company.
Section 5.16 Headings. The Section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation of this Agreement.
[The remainder of this page is intentionally left blank.]
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The parties are executing this Agreement on the date set forth in the introductory paragraph.
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DPV PARENT, INC.
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By:
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Name: Xxxxxxxxxxx Xxxxx
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Title: President
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DPV MERGERSUB, INC.
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By:
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Name: Xxxxxxxxxxx Xxxxx
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Title: President
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STOCKHOLDER
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[●]
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By:
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Name:
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Title:
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Schedule A
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Name of Stockholder
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Number of Shares
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[●]
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[●]
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