Common use of CERTAIN CONDITIONS OF THE OFFER Clause in Contracts

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to the applicable rules and regulations of the Commission, pay for, and may delay the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, payment for, any Shares tendered pursuant to the Offer, and may terminate the Offer and not accept for payment any Shares, if (x) any applicable waiting period under the HSR Act has not expired or terminated prior to the expiration of the Offer, (y) the Minimum Condition has not been satisfied or (z) at any time on or after the date of the Merger Agreement and before the time of acceptance of Shares pursuant to the Offer, any of the following events shall have occurred: (a) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, (iii) imposes material limitations on the ability of Purchaser, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision provisions of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall will not be required to accept for payment or, subject to the any applicable rules and or regulations of the Commission, including Rule 14e-1(c) under the Exchange Act (relating to the Purchaser's obligation to pay forfor or return tendered Units promptly after the expiration or termination of the Offer), to pay for any Units tendered, and may delay postpone the acceptance for payment of or, subject to the applicable rules restriction referred to above, payment for any Units tendered, and regulations may amend or terminate the Offer if (i) the Purchaser shall not have confirmed to its reasonable satisfaction that, upon purchase of the Commission, payment for, any Shares tendered Units pursuant to the Offer, the Purchaser will have full rights to ownership as to all such Units and may terminate that the Purchaser will become a registered owner on the books and records of the Partnership, (ii) the Purchaser shall not have confirmed to its reasonable satisfaction that, upon the purchase of the Units pursuant to the Offer, the Transfer Restrictions will have been satisfied, or (iii) all authorizations, consents, orders or approvals of, or declarations or filings with, or expirations of waiting periods imposed by, any court, administrative agency or commission or other governmental authority or instrumentality, domestic or foreign, necessary for the consummation of the purchase contemplated by the Offer and shall not accept for payment have been filed, occurred or been obtained. Furthermore, notwithstanding any Shares, if (x) any applicable waiting period under the HSR Act has not expired or terminated prior to the expiration other term of the Offer, (y) the Minimum Condition has Purchaser will not been satisfied be required to accept for payment or (z) pay for any Units not theretofore accepted for payment or paid for and may terminate or amend the Offer as to such Units if, at any time on or after the date of the Merger Agreement Offer and before the time of acceptance of Shares pursuant to the Offer, Expiration Date any of the following events shall have occurredconditions exist: (a) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, the acceptance by the Purchaser of Units tendered and not withdrawn pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Mergertransfer of such Units to the Purchaser violates restrictions in the Partnership Agreement which prohibit any transfer of Units which would cause a termination of the Partnership or would cause the Partnership to be taxed as a "publicly traded partnership" under the Internal Revenue Code; (b) there shall have been threatened, that instituted or pending any action or proceeding before any court or governmental agency or other regulatory or administrative agency or commission or by any other person, challenging the acquisition of any Units pursuant to the Offer or otherwise directly or indirectly relating to the Offer, or otherwise, in the judgment of the Purchaser, adversely affecting the Purchaser or the Partnership; (c) any statute, rule or regulation shall have been proposed, enacted, promulgated or deemed applicable to the Offer, or any action or order shall have been proposed, entered into or taken, by any government, governmental agency, or other regulatory or administrative agency or authority, which, in the judgment of the Purchaser, might (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or result in a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, (iii) imposes material limitations on delay in the ability of Purchaser, the Purchaser or renders render the Purchaser unable, to accept for payment, purchase or pay for or purchase some or all of the Shares pursuant to the Offer and the Mergertendered Units, (ii) make such purchase or payment illegal, or (iviii) imposes material limitations on otherwise adversely affect the ability of Purchaser or Parent effectively to exercise full rights the Partnership; (d) any change shall have occurred or be threatened in the business, financial condition, results of ownership operations, tax status or prospects of the SharesPartnership which, including, without limitation, in the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation judgment of the OfferPurchaser, the Merger, is or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29may be 13

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision provisions of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment oror pay for any tendered Shares, subject unless (a) there are validly tendered and not properly withdrawn prior to the applicable rules and regulations Expiration Date that number of Shares which, when aggregated with the Shares currently beneficially owned by Parent, represent at least 90% of the Commissiontotal number of outstanding Shares, pay foron a fully diluted basis, and on the date of purchase; provided, that following the Initial Expiration Date, Purchaser may delay the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, payment for, any Shares tendered pursuant to the Offer, and may terminate the Offer and not accept for payment any or pay for tendered Shares which, when aggregated with the Shares currently beneficially owned by Parent, represent at least 75% of the total number of outstanding Shares, if on a fully diluted basis, on the date of purchase, satisfy the Minimum Condition and (xb) any applicable waiting period under the HSR Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act has not of 1976, as amended, or under any applicable foreign statutes or regulations shall have expired or terminated prior to the expiration been terminated. Furthermore, notwithstanding any other provisions of the Offer, (y) Purchaser may, subject to the Minimum Condition has not been satisfied terms of the Merger Agreement, amend or (z) terminate the Offer or postpone the acceptance for payment of or payment for tendered Shares if at any time on or after the date of the Merger Agreement March 10, 1999 (unless otherwise indicated below) and before the time of acceptance of Shares pursuant to the Offerpayment for any Shares, any of the following events shall have occurredoccur: (a) - there shall be any action taken, or any statute, rule, regulation, legislation, interpretation, judgment, order or injunction enacted, entered, enforced, promulgated, amended, issued or deemed applicableapplicable to the Offer, pursuant to an authoritative interpretation by any legislative body, court, government or on behalf governmental, administrative or regulatory authority or agency, other than the routine application of a Governmental Entitythe waiting period provisions of the Hart-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, to the Offer or to the Merger, that would reasonably be expected to: (ia) prohibits make illegal or imposes any otherwise prohibit or materially delay consummation of the Offer or the Merger or seek to obtain material limitations on Parent's damages or Purchaser's make materially more costly the making of the Offer, (b) prohibit or materially limit the ownership or operation (by Parent or that of any of their respective subsidiaries or affiliates) Purchaser of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any material portion of the business or assets of the Company or any of its subsidiaries taken as a whole or compel Parent and their respective subsidiaries, which prohibition, limitation, disposition or Purchaser to dispose of or hold separate obligation could reasonably be expected separately all or any material portion of the business or assets of Parent or Purchaser or the Company or any of its subsidiaries taken as a whole, or seek to have a Material Adverse Effect impose any material limitation on Parentthe ability of Parent or Purchaser to conduct its business or own such assets, (iic) restrains or prohibits the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, (iii) imposes impose material limitations on the ability of Purchaser, Parent or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to acquire, hold or exercise full rights of ownership of the Shares, including, without limitation, the right to vote the any Shares purchased acquired or owned by it Purchaser or Parent on all matters properly presented to the Company's stockholdersStockholders, or (d) require divestiture by Parent or Purchaser of any Shares; or - there shall be any pending Action challenging or seeking to restrain or prohibit the consummation of the transactions contemplated by the Merger Agreement or any other Action filed against the Company or any of its subsidiaries after the date of the Merger Agreement which, if adversely determined, could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company or the consummation of the transactions contemplated by the Merger Agreement; or - there shall have occurred any development that has, or would reasonably be expected to have, a material adverse effect on the business, assets, liabilities, financial condition, results of operations or prospects of the Company and its subsidiaries taken as a whole, excluding any development or event arising out of or attributable to the United States economy generally; or - the Company and Purchaser and Parent shall have reached an agreement that the Offer or the Merger Agreement be terminated, or the Merger Agreement shall have been terminated in accordance with its terms; or - any of the representations and warranties of the Company (a) set forth in the Merger Agreement that are qualified as to materiality or (b) (i) relating to the capitalization of the Company Board (shall not be true and correct; or - any committee thereof) representations and warranties in the Merger Agreement that are not qualified by materiality shall not be true and correct in any respect which would reasonably be expected to have a Material Adverse Effect on the Company, in each case, as if such representations and warranties were made at the time of such determination, except as to any such representation or warranty which speaks as of a specific date, which must be untrue or incorrect in the foregoing respects as of such specific date; or 46 49 - the Company shall have withdrawn, modified or changed failed to perform in any material respect or to comply in any material respect with any of its obligations, covenants or agreements under the Merger Agreement; or - the Special Committee shall have withdrawn or modified in a manner adverse manner to Parent and or Purchaser or failed to reconfirm upon the request of Parent, its approval adoption or recommendation of the Offer, the Merger, Merger or the Merger Agreement; or - the Special Committee shall have resolved to withdraw or modify in a manner adverse to Parent or Purchaser the adoption or recommendation of the Offer, the Merger or the Merger Agreement; or - there shall have occurred, and continued to exist, (a) any general suspension of, or shall have endorsedlimitation on prices for, approved trading in securities on the NYSE or recommended on the Paris Bourse (excluding suspensions or limitations resulting solely from physical damage or interference with such exchanges not related to market conditions, (b) any decline of at least 20% in either the Dow Jonex Xxxrage of Industrial Stocks or the Standard & Poor's 500 Index from the close of business on the last trading day immediately preceding the date of the Merger Agreement, (c) any change in currency exchange rates measured from the close of business on the date of the Merger Agreement, resulting in an increase of 15% or more in the Per Share Amount as translated from U.S. Dollars into French Francs, (d) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or France, (e) a commencement of a war, armed hostilities or other Takeover Proposal significant national or international crisis directly or indirectly involving the United States or France, or (iif) in the Company shall have entered into case of any agreement with respect of the foregoing clauses (a) through (e) existing at the time of the commencement of the Offer, a material acceleration or worsening thereof. The conditions described above are for the benefit of Parent and Purchaser and may be asserted by Parent or Purchaser regardless of the circumstances giving rise to any Superior Proposal pursuant such conditions and may be waived by Parent or Purchaser in whole or in part at any time and from time to time in their reasonable discretion, in each case, subject to the provision terms of the Merger Agreement. The failure by Parent or Purchaser at any time to exercise any of the rights described above will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted at any time and from time to time. Any determination by Purcxxxxx xxxcerning the events described in clause (iv) under this "--Section 12. Certain Conditions of the heading "Termination; FeesOffer" in Section 12 hereof; or 29will be final and binding on all parties. 13.

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to the any applicable rules and regulations of the Commission, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and subject to any such rules or regulations, may delay the acceptance for payment of or, subject to any tendered Shares and (except as provided in the applicable rules and regulations of Merger Agreement) amend or terminate the Commission, payment for, Offer (whether or not any Shares tendered have been theretofore purchased or paid for pursuant to the Offer, and may terminate ) (i) unless the Offer following conditions shall have been satisfied: (a) there shall be validly tendered and not accept for payment withdrawn prior to the Expiration Date a number of Shares which represents at least a majority of the total voting power of the outstanding securities of the Company entitled to vote in the election of directors or in a merger ("Voting Securities") calculated on a fully diluted basis (the "Minimum Condition") ("on a fully diluted basis" having the following meaning as of any Sharesdate: the number of Voting Securities outstanding, if together with Voting Securities issuable pursuant to obligations outstanding at that date under employee stock option or other benefit plans or otherwise) and (xb) any applicable waiting period under the HSR Act has not and similar German laws (see Section 15) shall have expired or been terminated prior to the expiration of the Offer, (y) the Minimum Condition has not been satisfied Expiration Date or (zii) if at any time on or after the date of the Merger Agreement and before the time of acceptance of payment for any such Shares (whether or not any Shares have theretofore been accepted for payment or paid for pursuant to the Offer), any of the following events shall have occurredoccur and be continuing: (a) there shall be any statutein effect an injunction or other order, ruledecree, regulationjudgment or ruling by a Governmental Authority of competent jurisdiction or a law shall have been promulgated, judgment, order or injunction enacted, entered, enforced, promulgated, taken or deemed applicable, pursuant to an authoritative interpretation threatened by or on behalf of a Governmental Entity, to the Offer or the Merger, that Authority of competent jurisdiction which in any such case (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii1) restrains or prohibits the making or consummation of the Offer or Offer, the consummation of the Merger or the performance of any of the other transactions contemplated by the Merger Stockholders Agreement, (iii2) imposes prohibits or restricts the ownership or operation by Parent (or any of its affiliates or subsidiaries) of any portion of its or the Company's business or assets which is material limitations on to the ability business of Purchaserall such entities taken as a whole, or renders Purchaser unable, compels Parent (or any of its affiliates or subsidiaries) to accept for payment, pay for dispose of or purchase some hold separate any portion of its or all of the Shares pursuant Company's business or assets which is material to the Offer and the Mergerbusiness of all such entities taken as a whole, or (iv3) imposes material limitations on the ability of Purchaser effectively to acquire or Parent effectively to hold or to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it Purchaser on all matters properly presented to the Stockholders, or (4) imposes any material limitations on the ability of Parent or any of its affiliates or subsidiaries effectively to control in any material respect the business and operations of the Company's stockholders; or (b) any Governmental Authority shall have instituted any action, suit or proceeding seeking any relief or remedy referred to in paragraph (a) or material damages as a result of any of the Merger Agreement, the Stockholders Agreement or any transactions contemplated thereby; (c) the Merger Agreement shall have been terminated by the Company or Parent in accordance with its terms or any event shall have occurred which gives Parent or Purchaser the right to terminate the Merger Agreement or not to consummate the Merger; (d) there shall have occurred any event that, individually or when considered together with any other matter, has had or is reasonably likely in the future to have a material adverse effect on the business, assets, condition (financial or otherwise), liabilities or results of operations of the Company and the Company Subsidiaries taken as a whole (a "Company Material Adverse Effect"). (e) there shall have occurred (1) any general suspension of, or limitation on prices (other than suspensions or limitations triggered on the New York Stock Exchange, Inc. by price fluctuations on a trading day) for, trading in securities on any national securities exchange or the over-the-counter market, (2) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (3) any material limitation (whether or not mandatory) by any government or governmental, administrative or regulatory authority or agency, domestic or foreign, on, the extension of credit by banks or other lending 33 36 institutions, (4) a commencement of a war or armed hostilities or other national calamity directly involving the United States and Parent shall have determined that there is a reasonable likelihood that such event may be of material adverse significance to it or the Company, (5) any decline of at least 20% in the Dow Jonex Xxxrage of Industrial Stocks or 20% in the Standard & Poor's 500 Index from the levels thereof as of the last trading day immediately preceding the date of the Merger Agreement or (6) in the case of any of the foregoing existing at the time of the execution of the Merger Agreement, a material acceleration or worsening thereof; (f) it shall have been publicly disclosed or Purchaser shall have otherwise learned that beneficial ownership (determined for the purposes of this paragraph as set forth in Rule 13d-3 promulgated under the Exchange Act) of more than 25% of the outstanding Shares has been acquired by any person (including the Company, any of the Company Subsidiaries or affiliates thereof) or group (as defined in Section 13 (d) (3) of the Exchange Act), other than Purchaser or any of its affiliates; (g) the Company or any of its officers, directors or financial or legal advisors shall have, directly or indirectly, (1) solicited, initiated, encouraged (including by way of furnishing information) or taken any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constituted, or may reasonably be expected to lead to, any Takeover Proposal or (2) participated in any discussions or negotiations regarding any Takeover Proposal regardless of whether or not any of the foregoing actions are permitted by the Merger Agreement; (h) any of the representations and warranties of the Company set forth in the Merger Agreement that are qualified by reference to materiality or a Company Material Adverse Effect shall not be true and correct, or any such representations and warranties that are not so qualified shall not be true and correct in any respect that is reasonably likely to have a Company Material Adverse Effect, in each case as if such representations and warranties were made at the time of such determination; (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed failed to perform in any adverse manner material respect any material obligation or to Parent and Purchaser comply in any material respect with any material agreement or failed to reconfirm upon the request of Parent, its approval or recommendation covenant of the Offer, the Merger, Company to be performed or complied with by it under the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal ; or (iij) Parent and the Company shall have entered into agreed that Parent shall amend the Offer to terminate the Offer or postpone the payment for Shares pursuant thereto; which, in the judgment of Parent with respect to each and every matter referred to above and regardless of the circumstances giving rise to any agreement such condition, makes it inadvisable to proceed with the Offer or with such acceptance for payment of or payment for Shares or to proceed with the Merger. The foregoing conditions are for the sole benefit of Parent and may be asserted by Parent regardless of the circumstances giving rise to any such condition (except for any action or inaction by Parent or any of its affiliates constituting a breach of the Merger Agreement) or (other than the Minimum Condition) may be waived by Parent in whole or in part at any time and from time to time in its sole discretion (subject to the terms of the Merger Agreement). The failure by Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any Superior Proposal pursuant other facts and circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29time. 15.

CERTAIN CONDITIONS OF THE OFFER. Annex A Notwithstanding any other term of the Offer or the Merger Agreement, the Purchaser shall not be required to accept for payment or pay for, subject to any applicable rules and regulations of the Commission, including Rule 14e-1(c) of the Exchange Act, any Shares not theretofore accepted for payment or paid for and may terminate or amend the Offer as to such Shares unless (i) the Minimum Condition shall have been satisfied and (ii) any waiting period under the HSR Act applicable to the Merger Agreement provides that purchase of Shares pursuant to the Offer shall have expired or been terminated. Furthermore, notwithstanding any other provision term of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of or the Merger Agreement), the Purchaser shall not be required to accept for payment or, subject as aforesaid, to the applicable rules and regulations of the Commission, pay for any Shares not theretofore accepted for payment or paid for, and may delay the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, payment for, any Shares tendered pursuant to the Offer, and may terminate or amend the Offer and not accept for payment any Shares, if (x) any applicable waiting period under the HSR Act has not expired or terminated prior to the expiration of the Offer, (y) the Minimum Condition has not been satisfied or (z) at any time on or after the date of the Merger Agreement and before the time acceptance of acceptance such Shares for payment or the payment therefor, any of the following conditions exist or shall occur and remain in effect: (a) there shall have been instituted or pending any action or proceeding by any court, governmental, regulatory or administrative agency or authority that (i) seeks to challenge the acquisition by the Purchaser of Shares pursuant to the Offer, any of the following events shall have occurred: (a) there shall be any statuterestrain, rule, regulation, judgment, order prohibit or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits delay the making or consummation of the Offer or the Merger Merger, or the performance of obtain any of the other transactions contemplated by the Merger Agreementmaterial damages in 27 30 connection therewith, (iiiii) imposes material limitations on seeks to make the ability purchase of Purchaser, or renders Purchaser unable, to accept payment for payment, pay for or purchase some or all of the Shares pursuant to the Offer and or the MergerMerger illegal, or (iviii) imposes seeks to impose material limitations on the ability of the Parent and the Purchaser (or any of their affiliates) effectively to acquire or hold, or to require the Parent and the Purchaser or the Company or any of their respective affiliates or subsidiaries to dispose of or hold separate, any material portion of the assets or the business of the Parent effectively and its subsidiaries taken as a whole or the Company and its subsidiaries taken as a whole, or (iv) seeks to impose material limitations on the ability of the Purchaser (or its affiliates) to exercise full rights of ownership of the SharesShares purchased by it, including, without limitationlimitations, the right to vote the Shares shares purchased by it on all matters properly presented to the stockholders of the Company's stockholders; or (b) there shall have been promulgated, enacted, entered, enforced or deemed applicable to the Offer or the Merger, by any state, federal or foreign government or governmental authority or by any court, domestic or foreign, any statute (other than the HSR Act), rule, regulation, judgment, decree, order or injunction, that, in the reasonable judgment of the Parent and the Purchaser, might, directly or indirectly, result in any of the consequences referred to in clauses (i) through (iv) of subsection (a) above; or (c) there shall have occurred (i) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the-counter market in the United States, (ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, or (iii) the commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States; or (d) the Company Board (or any committee thereof) and the Parent shall have withdrawnreached an agreement or understanding that the Offer or the Merger Agreement be terminated or the Merger Agreement shall have been terminated in accordance with its terms; or (e) (i) any of the representations and warranties made by the Company in the Agreement shall not have been true and correct in all material respects when made, or shall thereafter have ceased to be true and correct in all material respects as of such later date (other than representations and warranties made as of a specified date) or (ii) any of the representations and warranties made by the Company in the Merger Agreement shall not have been true and correct when made, or shall thereafter have ceased to be true and correct as if made as of such later date (other than representations and warranties made as of a specified date), in each case, without giving effect to any materiality standard contained in such representation or warranty (including "Company Material Adverse Effect" as previously defined), except to the extent that any such failure to be true and correct, individually and in the aggregate with all such other failures, would not have a Company Material Adverse Effect, or the Company shall not in all material respects have performed each obligation and agreement and complied with each covenant to be performed and complied with by it under the Merger Agreement; or (f) the Company's Board of Directors shall have modified or changed amended its recommendation of the Offer in any manner adverse manner to the Parent and the Purchaser or failed to reconfirm upon the request of Parent, shall have withdrawn its approval or recommendation of the Offer, or shall have recommended acceptance of any Company Acquisition Proposal or shall have resolved to do any of the Mergerforegoing; or (g) (i) any corporation, entity or "group" (as defined in Section 13(d)(3) of the Merger AgreementExchange Act) ("person"), other than the Parent, shall have acquired beneficial ownership of 50% or more of Shares, or shall have endorsedbeen granted any options or rights, approved conditional or recommended any other Takeover Proposal otherwise, to acquire a total of 50% or more of Shares; (ii) any new group shall have been formed that beneficially owns 50% or more of Shares; or (iii) any person (other than the Company Parent or one or more of its affiliates) shall have entered into an agreement in principle or definitive agreement with the Company with respect to a tender or exchange offer for any agreement Shares or a merger, consolidation or other business combination with or involving the Company; or 28 31 (h) the Parent shall have received the consent of Health Care Property Investors ("HCPI") on behalf of itself and its affiliates to the consummation (the "Consummation") of the Offer, the Merger and the other transactions contemplated by the Merger Agreement and the waiver of any rights ("Rights") HCPI might have under agreements with the Company to terminate or exercise any rights to terminate such agreements or any other rights that would be triggered as a result of a change of control of the Company; provided that no consent shall be required from HCPI if such consent is not required under such agreements for the Consummation and no such Rights exist. The foregoing conditions are for the sole benefit of the Parent and may be asserted by the Parent, in whole or in part, at any time and from time to time, in the reasonable judgment of the Parent regardless of the circumstances giving rise to any such condition (other than a breach by the Parent or the Purchaser). The failure by the Parent at any time to exercise any of the foregoing rights will not be deemed a waiver of any right, the waiver of such right with respect to any Superior Proposal particular facts or circumstances shall not be deemed a waiver with respect to any other facts or circumstances, and each right will be deemed an ongoing right that may be asserted at any time and from time to time. Should the Offer be terminated pursuant to the provision described in clause (iv) under foregoing provisions, all tendered Shares not theretofore accepted for payment shall be returned forthwith by the heading "Termination; Fees" in Section 12 hereof; or 29Depositary to the tendering Holders. 15.

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision term of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of or the Merger Agreement), the Purchaser shall not be required to accept for payment or, subject to the any applicable rules and regulations of the Commission, pay for, and may delay including Rule 14e-1(c) under the acceptance for payment of or, subject Exchange Act (relating to the applicable rules and regulations Purchaser's obligation to pay for or return tendered Shares after the termination or withdrawal of the CommissionOffer), payment for, to pay for any Shares tendered pursuant to the OfferOffer unless, and may terminate (i) the Offer and not accept for payment any SharesMinimum Condition shall have been satisfied, if (xii) any applicable waiting period under the HSR Act has not expired or terminated prior applicable to the expiration of the Offer, (y) the Minimum Condition has not been satisfied or (z) at any time on or after the date of the Merger Agreement and before the time of acceptance purchase of Shares pursuant to the Offer shall have expired or been terminated and (iii) (A) all consents, approvals, orders or authorizations of, or registrations, declarations or filings with, any Governmental Entity with jurisdiction in respect of Gaming Laws (other than New Jersey) required or necessary in connection with the Offer, any of the following events shall have occurred: (a) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or the Merger or and the performance of any of Merger Agreement and the other transactions contemplated by the Merger AgreementAgreement (including the changes in the composition of the Board of Directors of the Company) shall have been obtained and shall be in full force and effect and (B) in the case of the New Jersey Casino Control Act and the rules and regulations promulgated thereunder (the "Casino Control Act"), either, at the option of Parent, (iiix) imposes material limitations on all shares of Caesars New Jersey, Inc. shall have been deposited in trust with a trustee qualified and otherwise acceptable to the ability CCC and the related transactions and arrangements contemplated by the Merger Agreement shall be in full force and effect and, as a result, neither Parent nor the Purchaser will be required pursuant to the requirements of Purchaser, the Casino Control Act and the rules and regulations promulgated thereunder to deposit or renders Purchaser unable, to accept for payment, pay for or purchase some or all place in trust any of the Shares currently owned by Parent or its affiliates or to be acquired pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29or

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision provisions of the Offer, and in addition to (and not in limitation of) Purchaser's rights and obligations to extend and/or amend the Offer under certain circumstances (subject pursuant to the provisions terms and conditions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to the any applicable rules and regulations of the CommissionSEC, including Rule 14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay for or return tendered Shares after termination or withdrawal of the Offer), pay forfor any tendered Shares, and may delay the acceptance for payment of or, subject to restriction referred to above, the applicable rules and regulations of the Commission, payment for, any Shares tendered Shares, unless at a scheduled Expiration Date of the Offer (as it may be extended pursuant to the terms of the Agreement), each of the following conditions has been satisfied or, except for the Minimum Condition (which may be waived by Purchaser only with the prior written consent of the Company), waived by Parent or Purchaser in its sole discretion: • the Minimum Condition shall have been satisfied; • there shall be no law or order by any governmental entity (whether temporary, preliminary or permanent in nature) enacted, enforced, amended, issued, in effect or deemed applicable to the Offer, the effect of which is to, or would reasonably be expected to, directly or indirectly, (i) make illegal or otherwise prevent, prohibit or impose adverse conditions on the consummation of the Offer, or (ii) restrict, prohibit or limit in any material respect the ownership or operation by Purchaser of all or any material portion of the business or assets of the Company, or impose any material limitation, restriction or prohibition on the ability of Purchaser or the Company to conduct its business or own such assets, in each case, that would have a material and adverse impact on the operation of the business or the Company. The foregoing conditions are for the benefit of Purchaser and may terminate be asserted by Purchaser regardless of the Offer and not accept for payment any Sharescircumstances (other than actions or inactions by Parent or Purchaser in breach of the Agreement) giving rise to such condition, if (x) in whole or in part at any applicable waiting period under the HSR Act has not expired time or terminated from time to time in its sole discretion prior to the expiration of the Offer, and all conditions (y) except for the Minimum Condition has not been satisfied Condition, which may be waived by Purchaser only with the prior written consent of the Company) may be waived by Purchaser, in their sole discretion, in whole or (z) in part at any applicable time on or after from time to time, in each case subject to the date terms and conditions of the Merger Agreement and before the time of acceptance of Shares pursuant to the Offer, any applicable rules and regulations of the following events shall have occurred: (a) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, (iii) imposes material limitations on the ability of Purchaser, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29SEC.

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision provisions of the Offer, Offer and in addition to (and not in limitation of) PurchaserParent's rights right to extend and amend the Offer under certain circumstances (subject to the provisions terms of the Merger Agreement), Purchaser Parent shall not be required to accept for payment oror pay for, subject to the applicable rules and regulations Rule 14e-l(c) of the CommissionExchange Act, pay for, any Shares not theretofore accepted for payment or paid for and may delay terminate or amend the acceptance for payment of or, Offer (subject to the applicable rules and regulations terms of the Commission, payment for, any Merger Agreement) as to such Shares tendered pursuant to the Offer, and may terminate the Offer and not accept for payment any Shares, if (x) any applicable waiting period under the HSR Act has not expired or terminated prior to the expiration of the Offer, (yi) the Minimum Condition has shall not have been satisfied or (zii) at any time on or after the date of commencement of the Merger Agreement Offer and before the time of acceptance of such Shares pursuant to for payment or the Offerpayment therefor, any of the following events conditions exist or shall have occurredoccur and remain in effect: (a) there shall be have occurred (i) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory), (ii) a formal declaration of war or national or international calamity directly or indirectly involving the United States, (iii) any limitation (whether or not mandatory) by any United States governmental authority on the extension of credit by banks or other financial institutions that materially affects the extension 22 of credit by banks or other lending institutions, or (iv) in the case of any of the foregoing existing at the time of commencement of the Offer, a material acceleration or worsening thereof; or (b) there shall have been any action taken, or any statute, rule, regulation, judgment, order or injunction enactedpromulgated, entered, enforced, promulgatedenacted issued or deemed applicable to the Offer or the Merger by any court, government or governmental authority or agency, domestic or foreign, which (i) prohibits Parent's ownership or operation of all or a material portion of its or the Company's (or any of their respective subsidiaries') business or assets, or deemed applicable, pursuant compels Parent to an authoritative interpretation by dispose of or on behalf hold separate all or a material portion of its or the Company's (or any of their respective subsidiaries') business or assets as a Governmental Entity, to result of the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains prohibits, or prohibits makes illegal the making acceptance for payment or payment for Shares or the consummation of the Offer or the Merger Merger, or the performance of any of the other transactions contemplated by the Merger Agreement, (iii) imposes material limitations on the ability of Purchaser, Parent or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it Purchaser on all matters properly presented to the Company's stockholders; provided, however, that with respect to any action, ruling or order taken or made by any court, government or governmental authority or agency that is preliminary, until such action, ruling or order becomes final, Parent may not terminate the Offer, but shall extend the expiration of the Offer and shall postpone acceptance for payment or purchase of, or payment for, any Shares pursuant to this paragraph (b); further provided, however, that in no event shall Parent be obligated to attempt to cause any such decree, order or injunction to be vacated or reversed or to extend the Offer beyond December 31, 1996; or (bc) the Merger Agreement shall have been terminated in accordance with its terms; or (d) any of the representations and warranties of the Company set forth in the Merger Agreement were inaccurate when made or became inaccurate at any time thereafter (other than (i) any misrepresentations that, in the aggregate, do not have a material adverse effect on the Company Board or (ii) any misrepresentations that the Company cures within five (5) business days after notice thereof is given by Parent (except that no cure period shall be provided for a breach by the Company which, by its nature, cannot be cured)) or any committee thereof) the Company shall have withdrawn, modified or changed failed in any material respect to perform any material obligation or covenant required by the Merger Agreement to be performed or complied with by it which failure would have a material adverse manner effect on the Company; or (e) the Board of Directors of the Company shall have withdrawn or modified in any material respect its recommendation of the Offer; provided, however, that this condition shall not be deemed to Parent exist, and Purchaser shall have no right to terminate the Offer or failed to reconfirm upon not accept for payment or pay for Shares, if as a result of the request Company's receipt of Parenta proposal for the acquisition of all or a material portion of the business or assets of the Company or the Shares, the Company withdraws, modifies or amends its approval or recommendation of the Offer, the MergerMerger or the Merger Agreement by reason of taking and disclosing to the Company's stockholders a position contemplated by Rule 14e-2(a)(2) or (3) promulgated under the Exchange Act with respect to such proposal, the Offer, the Merger or the Merger Agreement and if within five (5) business days of taking and disclosing to its stockholders the aforementioned position, the Company publicly reconfirms its recommendation of the Offer, the Merger and the Merger Agreement; or (f) the waiting period (and any extension thereof) applicable to the consummation of the Offer under the HSR Act shall not have expired or been terminated; provided, however, that (i) until such HSR Act waiting periods expire or terminate, Parent may not terminate the Offer (but shall extend the expiration of the Offer and shall postpone acceptance for payment or purchase of, or payment for, any Shares pursuant to this paragraph (f)); further provided, however, that in no event shall Parent be obligated to extend the Offer beyond December 31, 1996 and (ii) unless Parent theretofore shall have terminated the Offer in accordance with the terms of the Merger Agreement, Parent shall continue to seek to resolve any action or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) proceeding in accordance with the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to provisions of the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereofMerger Agreement; or 2923

CERTAIN CONDITIONS OF THE OFFER. Annex A to If an Offer is commenced, the Merger Agreement provides parties agree that notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) PurchaserWayfarer's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall not be required obligation to accept for payment or, subject to the applicable rules and regulations of the Commission, pay for, and may delay the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, payment for, any Shares tendered pursuant to the Offer, and may terminate Offer shall be subject to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not accept for payment any Shareswithdrawn that number of Shares which, when taken together with (i) Shares (if any) then owned by Wayfarer and (xii) any applicable waiting period under Shares that are issuable upon exercise of the HSR Act has not expired or terminated prior Warrants, represents at least 67% of the Shares then outstanding, after giving effect to the expiration issuance of shares of FCCC Common Stock upon exercise of the OfferWarrants (the "Minimum Condition"), (y) the Minimum Condition has not been satisfied satisfaction of the condition that at the expiration of the Offer there shall be no impediment or obstacle to the consummation of Wayfarer's purchase of all of the Warrants on the terms set forth in this Agreement, and (z) at any time on the satisfaction (or after the date waiver by Wayfarer) of the Merger Agreement and before other conditions of the time of acceptance of Shares pursuant Offer including those set forth in Annex I. Wayfarer expressly reserves the right to elect not to commence the Offer, or, if the Offer is commenced, to waive any of such conditions to the following events shall have occurred: (a) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entityextent legally permissible, to increase the price per Share payable in the Offer or and to make any other changes in the Mergerterms of the Offer; provided, that Wayfarer shall not be permitted to waive the Minimum Condition if the number of Shares validly tendered in accordance with the terms of the Offer and not withdrawn represents less than 55% of the Shares then outstanding (not counting any Shares that may be issuable upon exercise of the Warrants); and provided, further, that no change in the terms of the Offer may be made without the prior written consent of FCCC, which FCCC may grant or withhold in its sole discretion, if such change would (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or decrease the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of price per Share payable in the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on ParentOffer, (ii) restrains change the form of, timing of payment of, or prohibits other material term or condition with respect to, the making consideration to be paid in the Offer, or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, (iii) imposes material limitations on reduce the ability minimum number of Purchaser, or renders Purchaser unable, Shares sought to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares be purchased by it on all matters properly presented to the Company's stockholders; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29.

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall will not be required to accept for payment or, subject to the any applicable rules and regulations of the Commission, including Rule 14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay forfor or return tendered Shares promptly after expiration or termination of the Offer), to pay for any Shares tendered, and (subject to any such rules or regulations) may delay postpone the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, or payment for, for any Shares tendered tendered, and may amend or terminate (if, when and as permitted by the Merger Agreement) the Offer (whether or not any Shares have theretofore been purchased or paid for pursuant to the Offer, and may terminate ) (1) unless the Offer following conditions have been satisfied: (i) there shall have been validly tendered and not accept for payment withdrawn prior to the Expiration Date a number of Shares which represents at least a majority of the total voting power of the outstanding securities of the Company entitled to vote in the election of directors or in a merger ("Voting Securities"), calculated on a fully diluted basis, on the date of purchase ("on a fully diluted basis" having the following meaning, as of any Sharesdate: the number of Shares outstanding, if together with the number of Shares the Company is then required to issue pursuant to obligations outstanding at that date under employee stock option or other benefit plans or otherwise), (xii) any applicable waiting period periods under the HSR Act has not shall have expired or been terminated prior to the expiration of the Offer, and (yiii) the Minimum Condition has OCC shall have consented in writing to, or stated in writing that it would not been satisfied disapprove of, the Offer and the Merger or all applicable filing, approval or waiting periods or extensions thereof under the CIBC Act shall have expired without the OCC providing notice of objection to the Offer or the Merger (the "OCC Condition"), or (z2) if at any time on or after the date of the Merger Agreement and before the time of acceptance of Shares pursuant to the OfferExpiration Date, any of the following events shall have occurred: (ai) there any governmental entity or authority or any court shall be have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, judgmentexecutive order, decree, temporary or preliminary injunction that shall not have been lifted prior to the Expiration Date or permanent injunction or other order which is in effect and which (a) restricts, prevents or injunction enactedprohibits consummation of the transactions contemplated by the Merger Agreement, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to including the Offer or the Merger, that (ib) prohibits prohibits, limits or imposes any material limitations on Parent's or Purchaser's otherwise adversely affects the ownership or operation (by Parent or that any of its subsidiaries of all or any material portion of the business or assets of the Company and its subsidiaries or compels the Company, Parent or any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate all or any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have its subsidiaries as a Material Adverse Effect on Parent, (ii) restrains or prohibits result of the making or consummation completion of the Offer or the Merger Merger, or the performance of any of the other transactions contemplated by the Merger Agreement, (iiic) imposes material limitations on the ability of PurchaserParent, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or any other subsidiary of Parent effectively to exercise effectively full rights of ownership of the any Shares, including, including without limitation, limitation the right to vote any Shares acquired by Purchaser pursuant to the Shares purchased by it Offer or otherwise on all matters properly presented to the Company's stockholdersShareholders, including without limitation the approval and adoption of the Merger Agreement and the transactions contemplated thereby; (ii) there shall be instituted or (b) pending any action or proceeding before any United States or foreign court or governmental entity or authority by any United States or foreign governmental entity or authority seeking any order, decree or injunction having any effect set forth in paragraph (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Terminationabove; Fees" in Section 12 hereof; or 2932

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to the any applicable rules and regulations of the Commission, including Rule 14e-1(c) promulgated under the Exchange Act (relating to the Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of orany tendered Shares and, subject to except as set forth in the applicable rules and regulations of the CommissionMerger Agreement, payment for, any Shares tendered pursuant to the Offer, and may amend or terminate the Offer and as to any Shares not accept then paid for payment any Shares, if (xi) the Minimum Condition shall not have been satisfied, (ii) any applicable waiting period under the HSR Act has shall not have expired or been terminated prior to the expiration of the Offer, (y) the Minimum Condition has not been satisfied Offer or (ziii) at any time on or after the date execution of the Merger Agreement and before the time of acceptance of payment for any such Shares (whether or not any Shares have theretofore been accepted for payment or paid for pursuant to the Offer), any of the following events shall have occurredconditions exists: (aA) there shall be any in effect an injunction or other order, decree, judgment or ruling by a court of competent jurisdiction or by a governmental, regulatory or administrative agency or commission of competent jurisdiction or a statute, rule, regulation, judgment, executive order or injunction other action shall have been promulgated, enacted, entered, enforced, promulgated, taken or deemed applicable, pursuant to an authoritative interpretation threatened by or on behalf of a Governmental Entity, to the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all governmental authority or a portion governmental, regulatory or administrative agency or commission of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate competent jurisdiction which in any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, such case (iiI) restrains or prohibits the making or consummation of the Offer or the Merger consummation of the Merger, (II) prohibits or restricts the ownership or operation by Parent or the performance Purchaser (or any of their respective affiliates or subsidiaries) of any portion of its or the other transactions contemplated by Company's business or assets which is material to the Merger Agreementbusiness of all such entities taken as a whole, or compels Parent or the Purchaser (or any of their respective affiliates or subsidiaries) to dispose of or hold separate any portion of its or the Company's business or assets which is material to the business of all such entities taken as a whole, (iiiIII) imposes material limitations on the ability of Purchaser, the Purchaser effectively to acquire or renders Purchaser unable, to accept for payment, pay for hold or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it the Purchaser on all matters properly presented to the stockholders of the Company's stockholders, (IV) imposes any material limitations on the ability of Parent or the Purchaser or any of their respective affiliates or subsidiaries effectively to control in any material respect the business and operations of the Company and its subsidiaries, or (V) which otherwise would materially adversely affect the Company and its subsidiaries taken as a whole; or (bB) there shall be pending any litigation or other proceeding brought by any governmental entity or agency that seeks to impose any of the effects referred to in paragraph (A) above or seeks material damages from the Company or Parent in connection with the Offer or the Merger; or (C) the Merger Agreement shall have been terminated by the Company, Parent or the Purchaser in accordance with its terms; or (D) (iI) the representations and warranties made by the Company Board (in the Merger Agreement that are qualified as to materiality shall not have been true and correct, or any committee thereof) such representations and warranties that are not so qualified shall not be true and correct in all material respects, when made or shall have withdrawnceased to be true and correct in all material respects as of the Expiration Date as if made as of such date, modified or changed (II) as of the Expiration Date the Company shall not in all material respects have performed its material obligations and agreements and complied with its material covenants to be performed and complied with by it under the Merger Agreement; or (E) there shall have occurred (I) any adverse manner to Parent and Purchaser general suspension of, or failed to reconfirm upon limitation on prices for, trading in securities on any national securities exchange or the request over-the-counter market, (II) a declaration of Parenta banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory), its approval (III) the commencement of a war, armed hostilities or recommendation other international or national calamity directly involving the United States, (IV) from the date of the Merger Agreement through the date of termination or expiration of the Offer, a decline of at least 25% in the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or Standard & 29

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision term of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of or the Merger Agreement), the Purchaser shall not be required to accept for payment or, subject to the any applicable rules and regulations of the CommissionSEC, pay for, and may delay including Rule 14e-1(c) under the acceptance for payment of or, subject Exchange Act (relating to the applicable rules and regulations Purchaser's obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the CommissionOffer), payment for, to pay for any Shares tendered pursuant to the Offer, Offer unless (i) there shall have been validly tendered and may terminate not withdrawn prior to the expiration of the Offer and not accept for payment any Sharesthat number of Shares which would represent at least a majority of the outstanding Shares on a fully diluted basis, if (xii) any applicable waiting period under the HSR Act has not applicable to the purchase of Shares pursuant to the Offer shall have expired or been terminated prior and (iii) the period of time for any applicable review process by CFIUS under the Exon-Xxxxxx Act shall have expired and CFIUS shall not have taken any action or made any recommendation to the expiration President of the United States to block or prevent the consummation of the Offer or the Merger. Furthermore, notwithstanding any other term of the Offer or the Merger Agreement, the Purchaser shall not be required to commence the Offer, accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate or amend the Offer, (x) with the consent of the Company or (y) without the Minimum Condition has not been satisfied or (z) consent of the Company if, at any time on or after the date of the Merger Agreement and before the time of acceptance of Shares pursuant to such shares for payment or the Offerpayment therefor, any of the following events shall have occurred: (a) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, (iii) imposes material limitations on the ability of Purchaser, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29conditions exists:

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) of Purchaser's rights to extend and amend the Offer under certain circumstances (at any time in its sole discretion, and subject to the provisions of the Merger Agreement), Purchaser shall will not be required to accept for payment or, subject to the applicable rules and regulations or pay for any of the Commission, pay forShares, and may delay the acceptance for payment of or, subject to the any applicable rules and regulations of the Commission, including Rule 14e-1(c) under the Exchange Act, the payment for, any Shares of the tendered pursuant to the OfferShares, and may terminate or amend the Offer as to any of the Shares not then paid for, if: (1) at or prior to the expiration date of the Offer, the number of the Shares validly tendered and not accept for payment withdrawn, together with any Sharesof the Shares then owned by Parent or Purchaser, if shall not satisfy the Minimum Condition or the Revised Minimum Number; or (x2) at or prior to the expiration date of the Offer, (i) any applicable waiting period under the HSR Act has applicable to the purchase of the Shares pursuant to the Offer shall not have expired or been terminated or (ii) all requirements of any applicable foreign competition and antitrust statutes and regulations to the consummation of the Offer shall not have been satisfied, including approval by the FCO pursuant to the AARC; or (3) immediately prior to the expiration date of the Offer, the Transaction Expenses (yas defined in the Merger Agreement) shall be in excess of $250,000, as calculated by a schedule delivered by the Minimum Condition has not been satisfied Company to Purchaser (i) identifying and disclosing any and all actual Transaction Expenses as of the date of such schedule and (ii) identifying and providing reasonable estimates of any and all other Transaction Expenses following the date of such schedule; or (z4) at any time on prior to acceptance for payment of or after payment for the date of the Merger Agreement and before the time of acceptance of Shares pursuant to the OfferShares, any of the following events shall have occurredor conditions occurs or exists: (a) there shall be any statuteaction or proceeding by any Governmental Authority, rule, regulation, judgment, order whether or injunction enacted, entered, enforced, promulgated, not having the force of law is instituted or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Merger, that is pending: (i) prohibits challenging or imposes seeking to make illegal, to delay or otherwise directly or indirectly to restrain or prohibit the making of the Offer, the acceptance for payment of or payment 32 for some of or all the Shares by Purchaser, Parent or any material limitations on affiliate of Parent or the consummation by Purchaser or Parent of any other Transaction, or seeking to obtain damages in connection with any Transaction; (ii) seeking to restrain or prohibit Parent's or Purchaser's full rights of ownership or operation (or that of any of their respective Parent's subsidiaries or affiliates) of all or a any material portion of their the business or assets of the Company's businesses or assets, or to compel Parent or Purchaser any of its subsidiaries or their respective subsidiaries and affiliates to dispose of or hold separate all or any portion of the business or assets of the Company or of Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, its subsidiaries; (iii) imposes seeking to impose material limitations on the ability of Purchaser, Parent or renders Purchaser unable, to accept for payment, pay for any of its subsidiaries or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent affiliates effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote any of the Shares purchased acquired or owned by it Parent or any of its subsidiaries or affiliates on all matters properly presented to the Company's stockholdersshareholders; (iv) seeking to require divestiture by Parent or any of its subsidiaries of any Shares; or (v) that otherwise, in the judgment of Parent or Purchaser may materially adversely affect the Company, any of the Subsidiaries, or Parent or any of its subsidiaries; or (b) any action is taken or any statute, rule, regulation, judgment, administrative interpretation, injunction, order or decree is proposed, enacted, enforced, promulgated, issued or deemed applicable to Parent or Purchaser or any subsidiary or affiliate of Parent, the Company or any of its Subsidiaries or the Offer, the acceptance for payment of or payment for any of the Shares, the Merger or any other Transactions by any Governmental Authority (other than the application of the routine waiting period provisions of the HSR Act), that directly or indirectly, result, or is reasonable likely to, directly or indirectly, result in any of the consequences referred to in paragraph (a) above; or (c) any event that has had or could reasonably be expected to have a Material Adverse Effect; or (d) (i) any general suspension of trading in securities on the Company New York Stock Exchange or NASDAQ, (ii) the declaration of any banking moratorium or any suspension of payments in respect of banks or any limitation (whether or not mandatory) which is material to the Transactions on the extension of credit by lending institutions in the United States or the Federal Republic of Germany, (iii) a commencement of a war, armed hostilities or other national or international crisis directly involving the United States or the Federal Republic of Germany or otherwise having a significant adverse effect on the functioning of the financial markets in the United States or the Federal Republic of Germany, (iv) any significant change in the United States or German currency exchange rates or suspension of the markets therefor (whether or not mandatory) or the imposition of, or any significant change in, any currency or exchange control laws in the United States or the Federal Republic of Germany which change or suspension is material to the Transactions, or (v) any limitation by any Governmental Authority that is likely to materially and adversely affect the financing of the Offer or the Merger; or (e) any Third Party enters into a definitive agreement or an agreement in principle with respect to an Alternative Transaction; or (f) the Board (i) withdraws, or any committee thereof) shall have withdrawn, modified modifies or changed changes in any a manner adverse manner to Parent and or Purchaser or failed to reconfirm upon (including by amendment of the request of Parent, Schedule 14D-9) its approval or recommendation of the Offer, the Merger Agreement or the Merger, (ii) recommends an Alternative Transaction, or (iii) upon request of the Parent or Purchaser, fails to reaffirm such approval or recommendation or resolves to do any of the foregoing; or (g) the Company breaches or fails to perform in any material respect any of its covenants or agreements under the Merger Agreement, or shall any of its representations and warranties set forth in the Merger Agreement, the Common Stock Option, or the Stock Option Agreement is not true in any respect when made or at the Effective Time as if made at and as of such time (other than representations and warranties which by their terms address matters only as of a certain date, which are true as of such date), and in either case the effect thereof is reasonably expected to have endorsed, approved or recommended any other Takeover Proposal a Material Adverse Effect on the Company; or (iih) the Company shall have entered into any agreement Merger Agreement is terminated in accordance with respect its terms or amended in accordance with its terms to any Superior Proposal pursuant to provide for such termination or amendment of the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29Offer. 33

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision term of the Offer, but subject, in all cases to Parent's and in addition to (and not in limitation of) Purchaser's rights to extend obligations set forth under the Offer Merger Agreement, including, without limitation, under certain circumstances (subject to the provisions Section 1.1 of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to the any applicable rules and regulations of the CommissionSEC, including Rule 14e-1(c) under the 1934 Act (relating to Purchaser's obligation to promptly pay for, and may delay for or return tendered Shares after the acceptance for payment of or, subject to the applicable rules and regulations termination or withdrawal of the CommissionOffer), payment for, to pay for any Shares tendered pursuant to the Offer, Offer unless (i) there shall have been validly tendered and may terminate not withdrawn prior to the expiration of the Offer and not accept for payment any Sharessuch number of Shares that would constitute ninety percent (90%) of the aggregate Shares that are outstanding as of the consummation of the Offer (the "Minimum Condition"), if (xii) any applicable waiting period under the HSR Act has not applicable to the Offer shall have expired or been terminated prior to the expiration of the Offer, (iii) the Financing Condition shall have been satisfied and (iv) the Company shall have delivered pay-off letters, in form attached to the Merger Agreement, from (x) SunTrust Bank, Central Florida, N.A., and Bank Austria Creditanstalt Corporate Finance, Inc. and (y) CIT Group/Business Credit, Inc., with respect to the Minimum Condition has Company's Indebtedness (the "Pay-Off Letter Condition"). Furthermore, notwithstanding any other term of the Offer, but subject, in all cases, to Parent's and the Purchaser's obligations set forth in the Merger Agreement, including, without limitation, under Section 1.1 of the Merger Agreement, Purchaser shall not been satisfied be required to accept for payment or, to pay for any Shares not theretofore accepted for payment or (z) paid for, and may terminate the Offer at any time if, at any time on or after the date of the Merger Agreement and before the time of acceptance of such Shares pursuant to for payment or the Offerpayment therefor, any of the following events shall have occurred: conditions exists (a) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of other than as a Governmental Entity, to the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that result of any action or inaction of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by its subsidiaries that constitutes a breach of the Merger Agreement, (iii) imposes material limitations on the ability of Purchaser, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29):

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to the any applicable rules and regulations of the Commission, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and subject to any such rules or regulations, may delay the acceptance for payment of or, subject to any tendered Shares and (except as provided in the applicable rules and regulations of Merger Agreement) amend or terminate the Commission, payment for, Offer (whether or not any Shares tendered have been theretofore purchased or paid for pursuant to the Offer, and may terminate ) (i) unless the Offer following conditions shall have been satisfied: (a) there shall be validly tendered and not accept for payment withdrawn prior to the Expiration Date a number of Shares which represents at least a majority of the total voting power of the outstanding securities of the Company entitled to vote in the election of directors or in a merger ("Voting Securities") calculated on a fully diluted basis (the "Minimum Condition") ("on a fully diluted basis" having the following meaning as of any Sharesdate: the number of Voting Securities outstanding, if together with Voting Securities issuable pursuant to obligations outstanding at that date under employee stock option or other benefit plans or otherwise) and (xb) any applicable waiting period under the HSR Act has not and similar German laws (see Section 15) shall have expired or been terminated prior to the expiration of the Offer, (y) the Minimum Condition has not been satisfied Expiration Date or (zii) if at any time on or after the date of the Merger Agreement and before the time of acceptance of payment for any such Shares (whether or not any Shares have theretofore been accepted for payment or paid for pursuant to the Offer), any of the following events shall have occurredoccur and be continuing: (a) there shall be any statutein effect an injunction or other order, ruledecree, regulationjudgment or ruling by a Governmental Authority of competent jurisdiction or a law shall have been promulgated, judgment, order or injunction enacted, entered, enforced, promulgated, taken or deemed applicable, pursuant to an authoritative interpretation threatened by or on behalf of a Governmental Entity, to the Offer or the Merger, that Authority of competent jurisdiction which in any such case (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii1) restrains or prohibits the making or consummation of the Offer or Offer, the consummation of the Merger or the performance of any of the other transactions contemplated by the Merger Stockholders Agreement, (iii2) imposes prohibits or restricts the ownership or operation by Parent (or any of its affiliates or subsidiaries) of any portion of its or the Company's business or assets which is material limitations on to the ability business of Purchaserall such entities taken as a whole, or renders Purchaser unable, compels Parent (or any of its affiliates or subsidiaries) to accept for payment, pay for dispose of or purchase some hold separate any portion of its or all of the Shares pursuant Company's business or assets which is material to the Offer and the Mergerbusiness of all such entities taken as a whole, or (iv3) imposes material limitations on the ability of Purchaser effectively to acquire or Parent effectively to hold or to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it Purchaser on all matters properly presented to the Stockholders, or (4) imposes any material limitations on the ability of Parent or any of its affiliates or subsidiaries effectively to control in any material respect the business and operations of the Company's stockholders; or (b) any Governmental Authority shall have instituted any action, suit or proceeding seeking any relief or remedy referred to in paragraph (a) or material damages as a result of any of the Merger Agreement, the Stockholders Agreement or any transactions contemplated thereby; (c) the Merger Agreement shall have been terminated by the Company or Parent in accordance with its terms or any event shall have occurred which gives Parent or Purchaser the right to terminate the Merger Agreement or not to consummate the Merger; (d) there shall have occurred any event that, individually or when considered together with any other matter, has had or is reasonably likely in the future to have a material adverse effect on the business, assets, condition (financial or otherwise), liabilities or results of operations of the Company and the Company Subsidiaries taken as a whole (a "Company Material Adverse Effect"); (e) there shall have occurred (1) any general suspension of, or limitation on prices (other than suspensions or limitations triggered on the New York Stock Exchange, Inc. by price fluctuations on a trading day) for, trading in securities on any national securities exchange or the over-the-counter market, (2) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (3) any material limitation (whether or not mandatory) by any government or governmental, administrative or regulatory authority or agency, domestic or foreign, on, the extension of credit by banks or other lending 33 36 institutions, (4) a commencement of a war or armed hostilities or other national calamity directly involving the United States and Parent shall have determined that there is a reasonable likelihood that such event may be of material adverse significance to it or the Company, (5) any decline of at least 20% in the Dow Jonex Xxxrage of Industrial Stocks or 20% in the Standard & Poor's 500 Index from the levels thereof as of the last trading day immediately preceding the date of the Merger Agreement or (6) in the case of any of the foregoing existing at the time of the execution of the Merger Agreement, a material acceleration or worsening thereof; (f) it shall have been publicly disclosed or Purchaser shall have otherwise learned that beneficial ownership (determined for the purposes of this paragraph as set forth in Rule 13d-3 promulgated under the Exchange Act) of more than 25% of the outstanding Shares has been acquired by any person (including the Company, any of the Company Subsidiaries or affiliates thereof) or group (as defined in Section 13 (d) (3) of the Exchange Act), other than Purchaser or any of its affiliates; (g) the Company or any of its officers, directors or financial or legal advisors shall have, directly or indirectly, (1) solicited, initiated, encouraged (including by way of furnishing information) or taken any other action designed or reasonably likely to facilitate, any inquiries or the making of any proposal which constituted, or may reasonably be expected to lead to, any Takeover Proposal or (2) participated in any discussions or negotiations regarding any Takeover Proposal regardless of whether or not any of the foregoing actions are permitted by the Merger Agreement; (h) any of the representations and warranties of the Company set forth in the Merger Agreement that are qualified by reference to materiality or a Company Material Adverse Effect shall not be true and correct, or any such representations and warranties that are not so qualified shall not be true and correct in any respect that is reasonably likely to have a Company Material Adverse Effect, in each case as if such representations and warranties were made at the time of such determination; (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed failed to perform in any adverse manner material respect any material obligation or to Parent and Purchaser comply in any material respect with any material agreement or failed to reconfirm upon the request of Parent, its approval or recommendation covenant of the Offer, the Merger, Company to be performed or complied with by it under the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal ; or (iij) Parent and the Company shall have entered into agreed that Parent shall amend the Offer to terminate the Offer or postpone the payment for Shares pursuant thereto; which, in the judgment of Parent with respect to each and every matter referred to above and regardless of the circumstances giving rise to any agreement such condition, makes it inadvisable to proceed with the Offer or with such acceptance for payment of or payment for Shares or to proceed with the Merger. The foregoing conditions are for the sole benefit of Parent and may be asserted by Parent regardless of the circumstances giving rise to any such condition (except for any action or inaction by Parent or any of its affiliates constituting a breach of the Merger Agreement) or (other than the Minimum Condition) may be waived by Parent in whole or in part at any time and from time to time in its sole discretion (subject to the terms of the Merger Agreement). The failure by Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any Superior Proposal pursuant other facts and circumstances, and each such right shall be deemed an ongoing right that may be asserted at any time and from time to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29time. 15.

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision term of the OfferOffer or the Investment Agreement, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to the any applicable rules and 29 32 regulations of the Commission, including Rule 14e-1(c) under the Exchange Act (relating to Purchaser's obligation to pay for, and may delay for or return tendered Shares after the acceptance for payment of or, subject to the applicable rules and regulations termination or withdrawal of the CommissionOffer), payment for, to pay for any Shares tendered pursuant to the Offer, Offer and may terminate the Offer and not accept for payment any Shares, if (x) any applicable waiting period under the HSR Act has not expired or terminated prior to the expiration of amend the Offer, (y) with the Minimum Condition has not been satisfied consent of the Company or (z) if, at any time on or after the date of the Merger Investment Agreement and before the time of acceptance of such Shares pursuant to for payment or the Offerpayment therefor, any of the following events shall have occurred: conditions exists (the "Offer Conditions"): (a) there shall be threatened or pending by any Governmental Authority any suit, action or proceeding, or there shall be pending by any other person any suit, action or proceeding, which has a substantial likelihood of success, (i) challenging the acquisition by the Purchaser of any shares of Common Stock of the Company, seeking to restrain or prohibit the making or consummation of the Offer or the share issuances as contemplated by the Investment Agreement or the performance of any of the other transactions contemplated by the Investment Agreement or the Ancillary Agreements, or seeking to obtain from the Company or the Purchaser any damages that are material in relation to the Company and its subsidiaries taken as a whole, (ii) seeking to prohibit or limit the ownership or operation by the Company, the Purchaser or any of their respective subsidiaries of the business or assets of the Company and its subsidiaries, taken as a whole, or the Purchaser and its subsidiaries, taken as a whole, or to compel the Company to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or the Purchaser and its subsidiaries, taken as a whole, as a result of the Offer or any of the other transactions contemplated by Investment Agreement or the Ancillary Agreements, (iii) seeking to impose limitations on the ability of the Purchaser to acquire or hold, or exercise full rights of ownership of, any shares of common stock of the Company to be accepted for payment pursuant to the Offer or any Newly Issued Shares including, without limitation, the right to vote such Newly Issued Shares on all matters properly presented to the stockholders of the Company or (iv) seeking to prohibit the Purchaser or any of its subsidiaries from exercising any of their respective material rights under the Investment Agreement or any Ancillary Agreement (for purposes of the Investment Agreement, a "Governmental Authority" means any governmental, quasi-governmental, judicial, self-regulatory or regulatory agency or entity or subdivision thereof with jurisdiction over the Company or the Purchaser or any of their subsidiaries or any of the transactions contemplated by the Investment Agreement); (b) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, promulgated or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, applicable to the Offer or the Mergershare issuances, or any other action shall be taken by any Governmental Authority or court, that is reasonably likely to result, directly or indirectly, in any of the consequences referred to in clauses (i) prohibits through (iv) of paragraph (a) above; (c) there shall have occurred any event which constitutes a material adverse effect, or imposes the occurrence or existence of facts or circumstances reasonably expected to result in a material adverse effect, on the business, assets, results of operations, properties, financial or operating condition of the Company and its subsidiaries taken as a whole (without including economic or other matters affecting business or the seed industry generally) or the ability of the Company (and, to the extent applicable, its subsidiaries) to perform its (or their) obligations under the Investment Agreement or consummate the transactions contemplated thereby or by the Ancillary Agreements; (d) any of the representations and warranties of the Company set forth in the Investment Agreement that are qualified as to materiality shall not be true and correct and any such representations and warranties that are not so qualified shall not be true and correct in any material limitations respect, in each case as of the date of the Investment Agreement and as of the Expiration Date as though made on Parent's or Purchaser's ownership or operation and as of the Expiration Date (or that any other date as of any which such representations and warranties expressly speak); (e) the Company shall have failed to furnish to the Purchaser an opinion of their respective subsidiaries or affiliates) John X. Xxxxxx, Xx., Xxnior Vice President and General Counsel of all or a portion of their or the Company's businesses , in the form attached to the Investment Agreement, dated as of the date of the Closing if it occurs on or assetsbefore the Expiration Date, or if the Closing Date shall not have occurred, speaking in future tense as relates to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion issuance of the Newly Issued Shares; 30 33 (f) during the period from the date of the Investment Agreement until the Expiration Date, neither the Company nor any subsidiary shall have sold or otherwise disposed of (or authorized, committed or agreed to sell or otherwise dispose of), in a single transaction or in a series of transactions, excluding sales of inventory or other assets in the normal course of business, any business or assets relating to the Primary Business of the Company that constitute more than five percent of the total consolidated assets of the Company as shown on the Company's consolidated balance sheet as of the end of the most recent fiscal quarter ending prior to the time the determination is made, whether such sale or Parent and their respective subsidiariesdisposition be by merger or consolidation or the sale of stock or assets or otherwise; (g) there shall have occurred (i) any general suspension or trading in, which prohibitionor limitation on prices for, limitation, disposition or hold separate obligation could reasonably be expected to have securities (excluding any coordinated trading halt triggered solely as a Material Adverse Effect on Parentresult of a specified decrease in a market index), (ii) restrains any extraordinary change in the financial markets in the United States, (iii) a declaration of a banking moratorium or prohibits any suspension of payments in respect of banks in the making United States, (iv) any limitation (whether or consummation not mandatory) by any Governmental Authority on, or other event that materially affects, the extension of credit by banks or other lending institutions, (v) a commencement of a war directly involving the armed forces of the United States, or (vi) in case of any of the foregoing existing on the date of the Investment Agreement, material acceleration or worsening thereof; (h) the Board of Directors of the Company shall have failed to give, withdrawn or modified in a manner adverse to the Purchaser its approval or recommendation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, (iii) imposes material limitations on Investment Agreement or the ability of Purchaser, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholdersAncillary Agreements; or (b) (i) the Company Board Amended Bylaws contemplated in the Investment Agreement shall not be authorized, approved and effected; or (j) the Investment Agreement shall have terminated in accordance with its terms; which, in the reasonable good faith judgment of the Purchaser, and regardless of the circumstances giving rise to any such condition (other than any action or inaction by the Purchaser or any committee thereof) shall have withdrawnof its subsidiaries which constitutes a breach of the Investment Agreement), modified makes it inadvisable to proceed with such acceptance for payment or changed payment. The foregoing conditions are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition or may be waived by the Purchaser in whole or in part at any adverse manner time and from time to Parent and time in its sole discretion. The failure by the Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation any other subsidiary of the OfferPurchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right, the Merger, or the Merger Agreement, or waiver of any such right with respect to particular facts and circumstances shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement not be deemed a waiver with respect to any Superior Proposal pursuant other facts and circumstances and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. Any determination (which shall be made in good faith by the Purchaser) with respect to the provision described in clause (iv) under foregoing conditions shall be final and binding on the heading "Termination; Fees" in Section 12 hereof; or 29parties. 14.

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision term of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of or the Merger Agreement), the Purchaser shall not be required to accept for payment or, subject to the any applicable rules and regulations of the Commission, pay for, and may delay including Rule 14e-1(c) under the acceptance for payment of or, subject Exchange Act (relating to the applicable rules and regulations Purchaser's obligation to pay for or return tendered Common Shares or Preferred Shares after the termination or withdrawal of the CommissionOffer), payment for, to pay for any Common Shares or Preferred Shares tendered pursuant to the OfferOffer unless, (i) there 29 shall have been validly tendered and not withdrawn prior to the expiration of the Offer such number of Common Shares and Preferred Shares that, when added to Preferred Shares beneficially owned by EastGroup on the date of the Merger Agreement, will constitute two-thirds of the total number of shares of the capital stock of the Company entitled to vote on a merger under the Company's Charter and the GBCL (the "Minimum Condition"); and (ii) any waiting period under the HSR Act applicable to the purchase of Common Shares and Preferred Shares pursuant to the Offer shall have expired or been terminated (the "HSR Condition"). Furthermore, notwithstanding any other term of the Offer or the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject as aforesaid, to pay for any Common Shares and Preferred Shares not theretofore accepted for payment or paid for, and may terminate the Offer and not accept for payment any Sharesif, if (x) any applicable waiting period under the HSR Act has not expired or terminated prior to the expiration of the Offer, (y) the Minimum Condition has not been satisfied or (z) at any time on or after the date of the Merger Agreement and before the time of acceptance of Shares pursuant to such shares for payment or the Offerpayment therefor, any of the following events shall have occurred: conditions exist (aother than as a result of any action or inaction of EastGroup or any of its subsidiaries which constitutes a breach of the Merger Agreement): (i) there shall be threatened or pending by any statutegovernmental entity any suit, ruleaction or proceeding, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation (a) challenging the acquisition by or on behalf of a Governmental Entity, to the Offer EastGroup or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that Purchaser of any of their respective subsidiaries Common Shares or affiliates) of all Preferred Shares under the Offer, seeking to restrain or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits prohibit the making or consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger Agreement, or seeking to obtain from the Company, EastGroup or the Purchaser any damages that are material in relation to the Company and its subsidiaries taken as a whole; (iiib) imposes seeking to prohibit or limit the ownership or operation by the Company, EastGroup or any of their respective subsidiaries of a material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or EastGroup and its subsidiaries, taken as a whole, or to compel the Company or EastGroup to dispose of or hold separate any material portion of the business or assets of the Company and its subsidiaries, taken as a whole, or EastGroup and its subsidiaries, taken as a whole, as a result of the Offer or any of the other transactions contemplated by the Merger Agreement; (c) seeking to impose material limitations on the ability of PurchaserEastGroup or the Purchaser to acquire or hold, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of of, any Common Shares or Preferred Shares accepted for payment pursuant to the Shares, Offer including, without limitation, the right to vote the such Common Shares purchased by it and Preferred Shares on all matters properly presented to the shareholders of the Company's stockholders; (d) seeking to prohibit EastGroup or any of its subsidiaries from effectively controlling in any material respect the business or operations of the Company and its subsidiaries, taken as a whole; or (be) which otherwise is reasonably likely to have a material adverse effect on the business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole; (ii) there shall be any statute, rules, regulation, judgment, order or injunction enacted, entered, enforced, promulgated or deemed applicable to the Offer or the Merger, or any other action shall be taken by any governmental entity or court, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act, that is reasonably likely to result, directly or indirectly, in any of the consequences referred to in clauses (a) through (e) of paragraph (i) above; (iii) (a) the Board of Trustees of the Company Board (or any committee thereof) thereof shall have withdrawn, withdrawn or modified in a manner adverse to EastGroup or changed in any adverse manner to Parent and the Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, Merger or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal takeover proposal or (iib) the Company shall have entered into any agreement with respect to any Superior Acquisition Proposal pursuant to in accordance with the provision described in clause Merger Agreement; (iv) under there shall have occurred (a) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the heading "Terminationover-the-counter market in the United States (excluding any coordinated trading halt triggered solely as a result of a specified decrease in a market index); Fees" (b) any extraordinary or material adverse change in Section 12 hereofthe financial market or major stock exchange indices in the United States; (c) any material adverse change in United States currency exchange rates or a suspension of, or limitation on, the markets therefor; (d) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States; (e) any limitation (whether or not mandatory) by any governmental entity on, or other event that might materially affect, the extension of credit by banks or other lending institutions; or 29(f) in the case of any of the foregoing existing on the date of the Merger Agreement, a material acceleration or worsening thereof; 30

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (subject to the provisions of the Merger Agreement), Purchaser shall will not be required to accept for payment or, subject to the applicable rules and regulations of the Commission, pay for, and may delay the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, payment for, any Shares tendered pursuant to the Offer, and may extend, terminate or amend the Offer and not accept for payment any SharesOffer, if (xi) any applicable waiting period under the HSR Act has not expired or been terminated prior to the expiration of the Offer, (y) Offer or the Minimum Condition has transactions contemplated by the Merger Agreement cannot been satisfied be consummated under the EC Merger Regulation or (zii) at any time on or after the date of the Merger Agreement and before prior to the time expiration of acceptance of Shares pursuant to the Offer, any of the following events shall have occurredconditions exists: (a) there shall be any statuteMaterial Adverse Effect (as defined in the Merger Agreement) on the Company has occurred, rule, regulation, judgment, order (b) any representation or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Merger, that (i) prohibits or imposes any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business or assets warranty of the Company in the Merger Agreement is not true and correct except where the failure of such representation or Parent warranty to be true and their respective subsidiaries, which prohibition, limitation, disposition correct (without giving effect to any limitation as to "materiality" or hold separate obligation could reasonably be expected to "Material Adverse Effect" set forth therein) would not have a Material Adverse Effect on Parentthe Company, (iic) restrains the Company has failed to perform, in any material respect, any material obligation or prohibits to comply, in any material respect, with any material agreement or covenant of the making Company to be performed or complied with by it under the Merger Agreement; PROVIDED, HOWEVER, that no governmental or third party consent will be required to be obtained as a condition to the Offer except as expressly set forth in clause (i) above, (d) the Merger Agreement or the Stock Purchase Agreement has been terminated in accordance with its terms, (e) the conditions (other than the condition that consummation of the Offer or the Merger or the performance of any of the other transactions contemplated by the Merger AgreementStock Purchase Agreement does not conflict with or violate any provision of United States Law) to CSG's obligations under the Stock Purchase Agreement have not been satisfied or waived, and (iiif) imposes material limitations on CSG and the ability Company have agreed that CSG will terminate the Offer or postpone the acceptance for payment of PurchaserShares thereunder; which, in the sole judgment of Purchaser in any such case, and regardless of the circumstances (including any action or renders Purchaser unableinaction by CSG or any of its affiliates) giving rise to any such condition, makes it inadvisable to accept proceed with such acceptance for payment, pay . The foregoing conditions are for the sole benefit of Purchaser and CSG and may be asserted by Purchaser or purchase some or all CSG regardless of the Shares pursuant circumstances giving rise to the Offer and the Merger, any such condition or (iv) imposes material limitations on the ability of may be waived by Purchaser or Parent effectively CSG in whole or in part at any time and from time to time in their sole discretion. The failure by CSG or Purchaser at any time to exercise full rights of ownership any of the Shares, including, without limitation, foregoing rights will not be deemed a waiver of any such right; the waiver of any such right with respect to vote the Shares purchased by it on all matters properly presented to the Company's stockholders; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent particular facts and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement circumstances will not be deemed a waiver with respect to any Superior Proposal pursuant other facts and circumstances; and each such right will be deemed an ongoing right that may be asserted at any time and from time to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 29time.

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision provisions of the Offer, Offer and in addition to (and not in limitation of) the Purchaser's rights to extend and amend the Offer under certain circumstances (subject to at any time in its sole discretion, the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to the applicable rules and regulations of the Commission, pay for, and may delay the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, payment for, any Shares Units tendered pursuant to the Offer, and may terminate the Offer and not accept for payment any SharesUnits, if (x) any applicable waiting period under the HSR Act has not expired or terminated prior to the expiration of the Offer, (y) the Minimum Condition has not been satisfied or (z) at any time on or after the date of the Merger Agreement February 6, 1998 and before the time acceptance for payment of acceptance of Shares Units pursuant to the Offer, any of the following events shall occur or be deemed by the Purchaser to have occurred: (a) there shall be threatened, instituted or pending any statute, rule, regulation, judgment, order action or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation proceeding by or on behalf before any court or governmental, administrative or regulatory agency or authority or any other person, domestic or foreign, challenging the making of a Governmental Entity, to the Offer or the Mergeracquisition by the Purchaser of any Units, that (i) prohibits or imposes any material limitations on Parent's otherwise directly or indirectly relating to the Offer or, in the sole judgment of the Purchaser's ownership , otherwise adversely affecting the Trust, the Purchaser, Devon or operation (or that of any of their respective subsidiaries or affiliates; or (b) any change shall have occurred or be threatened in the properties, financial condition, operations, results of operations or prospects of the Trust or the Royalty Interests that, in the sole judgment of the Purchaser, is or may be materially adverse to the Trust or the Royalty Interests, or the Purchaser shall have become aware of any facts that, in the sole judgment of the Purchaser, have or may 16 19 have material adverse significance with respect to the value of the Trust or the Royalty Interests or the value of the Units to the Purchaser; or (c) there shall have been any action taken, or any statute, rule, regulation or order proposed, promulgated, enacted, entered or deemed applicable to the Offer, by any domestic or foreign government or governmental authority or by any court, domestic or foreign, that, in the sole judgment of the Purchaser, might (i) make the acceptance for payment of or payment for some or all of the Units illegal or otherwise restrict or prohibit consummation of the Offer, or impose material obligations upon the Purchaser as a result of any such acceptance or payment, (ii) result in a delay in the ability of the Purchaser, or render the Purchaser unable, to accept for payment or pay for some or all of the Units, (iii) require the Purchaser or the Trust or any of their respective affiliates to hold separate or to divest itself of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion of the business business, assets or assets of the Company or Parent and their respective subsidiaries, which prohibition, limitation, disposition or hold separate obligation could reasonably be expected to have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or the Merger or the performance property of any of them or any Units or impose any limitation on the other transactions contemplated by the Merger Agreementability of any of them to conduct their business and own such assets, properties and Units, (iiiiv) imposes impose material limitations on the ability of Purchaser, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent Devon to acquire, hold or exercise effectively to exercise full all rights of ownership of the SharesUnits, including, without limitation, including the right to vote the Shares any Units purchased by it on all matters properly presented to the Company's stockholdersUnit holders or (v) otherwise adversely affect the Purchaser, Devon, the Trust or the Units; or (bd) there shall have occurred (i) any general suspension of trading, or limitation on prices for, securities on any national securities exchange or in the Company Board over-the-counter market in the United States, (ii) a declaration of a banking moratorium or any committee thereofsuspension of payments in respect of banks in the United States, (iii) shall have withdrawnthe commencement of war, modified armed hostilities or changed other international or national calamity directly or indirectly involving the United States, (iv) any limitation (whether or not mandatory) by any United States governmental authority or agency on the extension of credit by banks or other financial institutions in any adverse manner the United States, (v) from the date of this Offer to Parent and Purchaser Purchase through the date of expiration or failed to reconfirm upon the request of Parent, its approval or recommendation termination of the Offer, a decline of at least 20% in either the Merger, Dow Jonex Average of Industrial Stocks or the Merger AgreementStandard & Poor's 500 Index, or which decline shall have endorsed, approved or recommended any other Takeover Proposal remained in effect for at least five NYSE trading days or (iivi) in the Company shall have entered into case of any agreement with respect to any Superior Proposal pursuant to of the provision situations described in clause the clauses (i) through (iv) inclusive, existing at the date of the commencement of the Offer, a material acceleration or worsening thereof; which, in the sole judgment of the Purchaser, in any such case, and regardless of the circumstances (including any action or inaction by the Purchaser or any of its affiliates) giving rise to any such condition, makes it inadvisable to proceed with the Offer or with acceptance for payment or payment for Units. The foregoing conditions are for the sole benefit of the Purchaser and its affiliates and may be asserted by the Purchaser, in whole or in part, at any time and from time to time in the sole judgment of the Purchaser. The failure by the Purchaser at any time to exercise its rights under any of the heading "Termination; Fees" foregoing conditions shall not be deemed a waiver of any such rights and each such right shall be deemed an ongoing right which may be asserted at any time or from time to time. Any determination by the Purchaser concerning the events described in this Section 12 hereof; or 29shall be final and binding on all parties. 15.

CERTAIN CONDITIONS OF THE OFFER. Annex A to the Merger Agreement provides that notwithstanding Notwithstanding any other provision of the Offer, and in addition to (and not in limitation of) Purchaser's rights to extend the Offer under certain circumstances (but subject to the provisions terms of the Merger Agreement), the Purchaser shall will not be required to accept for payment or, subject to the any applicable rules and or regulations of the Commission, pay for, and may delay the acceptance for payment of or, subject to the applicable rules and regulations of the Commission, payment for, any Shares tendered pursuant to the OfferShares, and may terminate the Offer and not accept for payment any Shares(i) if by the expiration of the Offer (or, if (x) any applicable waiting period under the HSR Act has not expired or terminated prior to extended, by the expiration of the Offer, (yas so extended) the Minimum Condition has shall not have been satisfied satisfied, (ii) if all applicable waiting periods under the HSR Act shall not have expired or been terminated, or (ziii) if on or after April 30, 1999, and at any time on or after the date of the Merger Agreement and before the time of prior to acceptance of Shares pursuant to the Offerfor payment for any such Shares, any of the following events (together with the foregoing events, the "Offer Conditions") shall occur; provided, that in each such case, the Purchaser shall not be permitted to terminate the Offer (except pursuant to the condition specified in paragraph (g) below) if prior to the then scheduled expiration of the Offer, the Offer shall have occurredbeen extended: (a) there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated, or deemed applicable, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity, to the Offer or the Merger, that have occurred (i) prohibits a declaration of a banking moratorium or imposes any material limitations suspension of payments in respect of banks in the United States (whether or not mandatory), (ii) a formal declaration of war or national or international calamity directly or indirectly involving the United States (other than any declaration of war resulting from the current conflict in Yugoslavia), (iii) any limitation (whether or not mandatory) by any United States governmental authority on Parent's the extension of credit by banks or Purchaser's ownership other financial institutions that materially affects the extension of credit by banks or operation other lending institutions, (iv) any general suspension of, or that limitation on prices for, trading in securities on the Nasdaq National Market or the over the counter market, or (v) in the case of any of their respective subsidiaries or affiliates) of all or a portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and affiliates to dispose of or hold separate any portion foregoing existing at the time of the business commencement of the Offer, a material acceleration or assets worsening thereof; (b) the Company shall have breached or failed to perform any of its material obligations, covenants or agreements under the Merger Agreement in a manner permitting Parent to terminate the Merger Agreement or any representation or warranty of the Company or Parent set forth in the Merger Agreement shall not be true and their respective subsidiariescorrect, which prohibition, limitation, disposition or hold separate obligation could reasonably provided that such representations and warranties shall be expected deemed to be true and correct unless the failure of such representations and warranties to be so true and correct would have a Material Adverse Effect on Parent, (ii) restrains or prohibits the making or consummation of the Offer or as defined in the Merger Agreement) or would prevent the performance of any of Company from consummating the other transactions contemplated by the Merger Agreement, (iii) imposes material limitations on Agreement in each case as if such representations and warranties were made at the ability time of Purchaser, or renders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer and the Merger, or (iv) imposes material limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholderssuch termination; or (b) (i) the Company Board (or any committee thereof) shall have withdrawn, modified or changed in any adverse manner to Parent and Purchaser or failed to reconfirm upon the request of Parent, its approval or recommendation of the Offer, the Merger, or the Merger Agreement, or shall have endorsed, approved or recommended any other Takeover Proposal or (ii) the Company shall have entered into any agreement with respect to any Superior Proposal pursuant to the provision described in clause (iv) under the heading "Termination; Fees" in Section 12 hereof; or 2926