Confidential
Project Vino
November 23, 2018
Page 2
The term “Alternative Transaction” means, with respect to the Company, any transaction with an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, other entity or group (other than GSK or a wholly-owned subsidiary of GSK) at any time after the date hereof that is structured to permit such person or group to acquire beneficial ownership of twenty percent (20%) or more of the total voting power of any class of equity securities of the Company or twenty percent (20%) or more of the consolidated total assets of the Company and its subsidiaries, pursuant to a merger, consolidation, or other business combination, sale of shares of capital stock, sale of assets, license of assets, tender offer or exchange offer, or similar transaction, including any single or multi-step transaction or series of related transactions, in each case other than an offer by GSK or a merger of a wholly-owned subsidiary of GSK with and into the Company.
GSK and the Company understand and agree that no contract or agreement providing for a Transaction shall be deemed to exist between them unless and until a definitive written Transaction agreement approved by each party’s board of directors has been executed and delivered by the parties. The parties also agree that, unless and until such a definitive Transaction agreement has been executed and delivered by both parties, neither party shall be under any legal obligation to engage in a Transaction.
This Letter Agreement and thenon-disclosure agreement between the Company and GSK (the “Confidentiality Agreement”) constitute the entire agreement between the parties concerning the subject matter hereof and supersede all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications, and agreements, whether oral or written, between the parties relating to the same and all past courses of dealing or industry custom.
The provisions of this Letter Agreement may not be amended or modified, in whole or in part, except with the written consent of both parties hereto, and the provisions of this Letter Agreement may not be waived without the written consent of the party against whom such waiver would be sought to be enforced. The waiver by either party of a breach of or a default under any provision of this Letter Agreement shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Letter Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power, privilege, or remedy that it has or may have hereunder operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any further exercise of any such right, power, privilege, or remedy hereunder.
This Letter Agreement, and any dispute arising out of, relating to or in connection with this Letter Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any principles of conflict of laws that would require application of the laws of a different jurisdiction. With respect to any action or proceeding between the parties arising out of or relating to this Letter Agreement, each party: (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the Court of Chancery of the State
- 2 -
