TENDER AND SUPPORT AGREEMENT
This TENDER AND SUPPORT AGREEMENT (this Agreement), dated as of December 14, 2020, is entered into by and among Eli Lilly and Company, an Indiana corporation (Parent), Tyto Acquisition Corporation, a Delaware corporation and a direct or indirect wholly-owned subsidiary of Parent (Purchaser), and one or more persons set forth on Schedule A hereto (each, a Stockholder and, if applicable, collectively, the Stockholders). All 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, each Stockholder is the record and/or beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of the number of shares of Company Common Stock, Company Restricted Stock and Company Stock Options, if any, in each case set forth opposite such Stockholders name on Schedule A (all such shares of Company Common Stock, Company Restricted Stock and Company Stock Options set forth on Schedule A next to the Stockholders name, together with any shares of Company Common Stock or any other securities of the Company that are hereafter issued to or otherwise directly or indirectly acquired by any Stockholder prior to the valid termination of this Agreement in accordance with Section 5.2, including for the avoidance of doubt any shares of Company Common Stock acquired by such Stockholder upon the exercise of Company Stock Options after the date hereof, being referred to herein as the Subject Shares);
WHEREAS, concurrently with the execution hereof, Parent, Purchaser and Prevail Therapeutics Inc., a Delaware corporation (the Company), are entering into an Agreement and Plan of Merger, dated as of the date hereof (as it may be amended from time to time pursuant to the terms thereof, the Merger Agreement), which provides, among other things, for Purchaser to commence an offer to purchase (the consummation of which is subject to the Offer Conditions (as defined in the Merger Agreement)) all of the issued and outstanding shares of Company Common Stock, and, following completion of the Offer (as defined in the Merger Agreement), for the Merger of Purchaser 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 Purchaser to enter into the Merger Agreement, each Stockholder, severally and not jointly, and on such Stockholders own account with respect to the Subject Shares, has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective 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: