Common use of Conditions of the Offer Clause in Contracts

Conditions of the Offer. Notwithstanding any other provision of the Offer, Purchaser shall not be obligated to accept for payment, and (subject to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as the “Minimum Condition.” Furthermore, Purchaser shall not be required to accept for payment, and (subject to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such condition:

Conditions of the Offer. Notwithstanding any other provision term of the OfferOffer or this Agreement, Purchaser Sub shall not be obligated required to accept for paymentpayment or, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s Sub's obligation to pay for or return tendered Company Common Shares promptly after the termination or withdrawal of the Offer)) shall not be obligated , to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer unless (i) there shall have been validly tendered and not withdrawn prior to the expiration of the Offer such number of Shares that, together with the Shares and Class B Shares subject to the Option contained in the Stockholder Agreement, would constitute a majority of the Shares and Class B Shares that in the aggregate are outstanding, determined on a fully diluted basis for all outstanding stock options, the Convertible Debentures, other securities convertible into Shares or Class B Shares and any other rights to acquire Shares or Class B Shares(the "Minimum Condition") and (ii) any waiting period under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall have expired or been terminated (the "HSR Condition"). Furthermore, notwithstanding any other term of the Offer or this Agreement, Sub shall not be required to accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for) unless, prior to the expiration of and may terminate the Offer (as it may have been extended pursuant to Section 2.01(d) if, at any time on or after the date of the Agreement), there shall have been tendered this Agreement and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as the “Minimum Condition.” Furthermore, Purchaser shall not be required to accept for payment, and (subject to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay before the acceptance for payment of or payment for, any Company Common such Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for paymentpayment therefor, any of the following conditions exists and is continuing, regardless (other than as a result of the circumstances giving rise to such condition:any action or inaction of Parent or any of its subsidiaries that constitutes a breach of this Agreement):

Conditions of the Offer. Notwithstanding any other provision provisions of the Offer, Purchaser Parent shall not be obligated required to accept for paymentpayment or, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to , pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, if (i) there shall not be validly tendered and not properly withdrawn prior to the expiration Expiration Date for the Offer that number of Shares which, when added to any Shares already owned by Parent, its Subsidiaries and the Support Parties (and for this purpose, Parent, its Subsidiaries and the Support Parties shall be deemed to own Shares that are subject to options to purchase Shares to the extent such options have been irrevocably exercised and paid for by any of them prior to the Expiration Date), represents at least a majority of the outstanding Shares on a fully diluted basis as of the Expiration Date of the Offer (as it assuming the issuance of all Shares that may have been extended pursuant be issued upon the vesting of outstanding Company Restricted Stock, plus Shares issuable upon the exercise of all outstanding Company Stock Options, warrants and other rights to Section 2.01(dpurchase Shares with an exercise price per Share less than the Offer Price) of the Agreement)(such condition, there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as the “Minimum Condition.” Furthermore”), Purchaser shall not be required to accept for payment, and or (subject to ii) at any time on or after the rules and regulations date of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration commencement of the Offer (as it may have been extended pursuant and prior to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for paymentExpiration Date, any of the following conditions exists events shall occur and is be continuing, regardless of the circumstances giving rise to such condition:

Conditions of the Offer. Notwithstanding The obligation of Merger Sub to accept for payment and pay for Shares validly tendered (and not validly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions set forth in clauses “(a)” through “(h)” below. Accordingly, notwithstanding any other provision term of the Offer or the Agreement to the contrary, Merger Sub shall not be required to consummate the Offer, Purchaser shall not be obligated to accept for paymentpayment or, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act Rule 14e-l(c) (relating to ParentMerger Sub’s obligation to pay for or return tendered Company Common Shares promptly after the termination or withdrawal of the Offer)) shall not be obligated to , pay for, or and may delay the acceptance for payment of or or, subject to such rules and regulations, the payment for, any Company Common tendered Shares tendered pursuant to and, if permitted by the Merger Agreement, may terminate the Offer: (i) if the Merger Agreement has been terminated in accordance with ARTICLE 8; and (ii) at any scheduled Offer Expiration Time (as the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration of the Offer (as it may have been extended pursuant to, and subject to any requirements to extend the Offer pursuant to, Section 2.01(d2.01(c) of the Merger Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares if: (if anyA) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as Minimum Tender Condition or the “Minimum Condition.” Furthermore, Purchaser Termination Condition shall not be required to accept for payment, and satisfied by the Offer Expiration Time; or (subject to the rules and regulations B) any of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) additional conditions set forth below shall not be obligated to pay for, satisfied or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant (to the Offer (and not theretofore accepted for payment or paid forextent permitted by Applicable Law) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such conditionwaived in writing by Parent:

Conditions of the Offer. Notwithstanding any other provision provisions of the Offer, but subject to the terms of the Agreement, Parent and Purchaser shall not be obligated required to accept for paymentpayment or, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to Act, pay for or return for, any validly tendered shares of Company Common Shares promptly after termination Stock, if (i) there shall not be validly tendered and not withdrawn prior to the Expiration Date for the Offer that number of shares of Company Common Stock which, when added to any shares of Company Common Stock already owned by Parent or withdrawal any of its controlled Subsidiaries, represents at least a majority of the sum of (A) the total number of outstanding shares of Company Common Stock on the Expiration Date plus (B) the total number of shares of Company Common Stock that will be issuable at or prior to the Outside Date upon the vesting (including vesting solely as a result of the consummation of the Offer)) shall not be obligated , conversion or exercise of all Company Compensatory Awards and derivative securities, including warrants, options, convertible or exchangeable securities or other rights to pay for, or may delay the acceptance for payment of or payment for, any acquire Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unlessStock, prior to the expiration regardless of the Offer conversion or exercise price or other terms and conditions thereof) (as it may have been extended pursuant to Section 2.01(d) of the Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as the “Minimum Condition.” Furthermore”), Purchaser shall not be (ii) any applicable waiting period or clearance, consent or approval under the HSR Act or other Antitrust Laws commercially reasonably required in connection with the transactions contemplated by this Agreement that is required to accept for paymentexpire, and (subject terminate or be obtained prior to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal consummation of the Offer)) , shall not be obligated have expired or been terminated or been obtained without the imposition of any Burdensome Action prior to pay forthe Expiration Date, or may delay (iii) at any time on or after the date of the Agreement and prior to the time of acceptance for payment for any shares of or payment for, any Company Common Shares tendered Stock pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for paymentOffer, any of the following conditions exists events shall have occurred and is continuing, regardless of be continuing on the circumstances giving rise to such conditionExpiration Date:

Conditions of the Offer. (1) Notwithstanding any other provision provisions of the Offer, but subject to the terms and conditions set forth in this Agreement, Purchaser shall not be obligated required to, and Parent shall not be required to cause Purchaser to, accept for paymentpayment or, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to ParentPurchaser’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer), pay for any Shares validly tendered (and not withdrawn) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration of the Offer unless (as it may have been extended pursuant to Section 2.01(di) of the Agreement), there shall have been validly tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliatescontrolled Affiliates (excluding any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received), represent not less than one share more than 50% of the sum of (x) the total number of Shares outstanding at the Offer Acceptance Time, plus (y) all Shares that the Company Outstanding may be required to issue upon the vesting (including vesting solely as a result of the consummation of the Offer), conversion, settlement or exercise of all then outstanding options, warrants or securities convertible or exchangeable into Shares. The preceding condition is referred , or other rights to as acquire or be issued Shares, regardless of the conversion or exercise price or other terms and conditions thereof (such condition, the “Minimum Condition.” Furthermore, Purchaser shall not be required to accept for payment, ”) and (subject ii) the waiting period (and any extension thereof) applicable to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration consummation of the Offer and the Merger under the HSR Act and any applicable Antitrust Laws of Austria (as it may to the extent required) shall have expired or been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such condition:terminated.

Conditions of the Offer. ​ Notwithstanding any other provision term of the OfferOffer or the Merger Agreement, Purchaser shall not be obligated required to, and Parent shall not be required to cause Purchaser to, accept for paymentpayment or, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to ParentPurchaser’s obligation to pay for or return tendered Company Common Shares promptly after the termination or withdrawal of the Offer), pay for any Shares unless there shall have been validly tendered in the Offer and “received” by the “depositary” ​(as such terms are defined in Section 251(h) of the DGCL) and not properly withdrawn prior to the expiration of the Offer that number of Shares (excluding for the avoidance of doubt all Shares delivered pursuant to guaranteed delivery instructions for which certificates have not yet been delivered) that, considered together with the number of Shares (if any) then owned by Parent and Purchaser (and excluding Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not yet been “received,” as such term is defined in Section 251(h) of the DGCL, by the depositary for the Offer pursuant to such procedures), equals at least a majority in voting power of the Shares then issued and outstanding (the “Minimum Tender Condition”). Furthermore, notwithstanding any other term of the Offer or the Merger Agreement, Purchaser shall not be obligated required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject as aforesaid, to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unlessfor if, prior to at the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as the “Minimum Condition.” Furthermore, Purchaser shall not be required to accept for payment, and (subject to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following conditions exists and is continuing, regardless exist: • the consummation of the circumstances giving rise to such condition:Offer or the Merger shall be restrained, enjoined or prohibited by any judgment, order, ruling, decision, writ, injunction, decree or arbitration award (whether temporary, preliminary or permanent) issued by any governmental entity or there shall be in effect any law that prevents or makes illegal the consummation of the Offer or the Merger; ​ •

Conditions of the Offer. Notwithstanding any other provision provisions of the Offer, Purchaser shall not be obligated to accept for payment, and Offer (subject to the terms and conditions of the Merger Agreement and any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the AgreementAct), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as the “Minimum Condition.” Furthermore, Purchaser Subcorp shall not be required to accept for payment, and (subject to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for payment or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or and may delay the acceptance for payment of or payment forof, any Company shares of ALARIS Common Shares Stock, if (i) there shall not be validly tendered pursuant and not properly withdrawn prior to the Offer Expiration Date that number of shares of ALARIS Common Stock (and not theretofore accepted for payment disregarding any shares tendered by any officer or paid fordirector of ALARIS) if, upon that represents at least one share more than the expiration number of shares equal to (A) the ALARIS’ Majority Stockholder’s Shares plus (B) a majority of the Offer then issued and outstanding shares of ALARIS Common Stock (other than (1) ALARIS’ Majority Stockholder’s Shares and (2) shares of ALARIS Common Stock owned beneficially or of record by directors or executive officers of ALARIS outstanding on the date of purchase (such number of shares, the “Minimum Condition”)), (ii) any applicable waiting period under the HSR Act shall not have expired or been terminated prior to the Expiration Date or any other required waiting periods, material clearances or approvals of any Governmental Authority applicable to the Offer, the Merger or the transactions contemplated hereby under any Applicable Laws shall not have expired, been obtained or been terminated, as it the case may have been extended pursuant to Section 2.01(dbe, or (iii) at any time on or after the date of the Agreement) Merger Agreement and before acceptance of such Company Common Shares for paymentprior to the Appointment Time, any of the following conditions exists shall have occurred and is continuing, regardless of the circumstances giving rise continued to such conditionexist:

Conditions of the Offer. Notwithstanding any other provision of the Offer, Purchaser Merger Sub shall not be obligated to accept for payment, and (subject to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment any shares of or payment for, any Company Common Shares Stock tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d1.1(d) of the Agreement), (i) there shall have been validly tendered (other than shares of Company Common Stock tendered by guaranteed delivery where actual delivery has not occurred) and not validly withdrawn prior to the expiration of the Offer that number of Company Common Shares thatwhich, considered together with all other when added to any shares of Company Common Shares (if any) beneficially Stock then owned by Parent and its AffiliatesParent, Merger Sub or their respective Subsidiaries, would represent more than 50% of the then issued and outstanding shares of Company Outstanding Shares. The preceding condition is referred Common Stock determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of shares of Company Common Stock then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, rights, convertible or exchangeable securities or similar obligations then outstanding, whether or not then vested or exercisable) (the “Minimum Condition.” ”). Furthermore, Purchaser Merger Sub shall not be required to accept for payment, and (subject to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment any shares of or payment for, any Company Common Shares Stock tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d1.1(d) of the Agreement) and before acceptance of such shares of Company Common Shares Stock for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such condition:

Conditions of the Offer. Notwithstanding any other provision of the OfferOffer or the Merger Agreement, neither Parent or the Purchaser shall not be obligated required to accept for paymentpayment or, and (subject to the applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s the Purchaser's obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to , pay for, and (subject to any such rules or may regulations) may, to the extent expressly permitted by the Merger Agreement, delay the acceptance for payment of for, or the payment for, any Company Common Shares validly tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unlessproperly withdrawn, prior and, to the expiration of extent permitted by the Merger Agreement, may amend or terminate the Offer if (as it may have a) there has not been extended pursuant to Section 2.01(d) of validly tendered in the Agreement), there shall have been tendered Offer and not validly withdrawn Company Common prior to the Expiration Date a number of Shares thatwhich, considered when taken together with all other Company Common Shares the Shares, if any, then owned by Parent or Purchaser (if any) beneficially owned by Parent and its Affiliates), represent more than 50% represents at least a majority of the Company Outstanding Sharestotal Shares then outstanding determined on a fully diluted basis (assuming the conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof and the exclusion of any treasury stock). The preceding condition is referred to as (the “"Minimum Condition.” Furthermore, Purchaser shall not be required to accept for payment, "); (b) any waiting periods (and (subject any extensions thereof) applicable to the rules and regulations of Offer or the SEC, including Rule 14e-1(c) promulgated Merger under the Exchange HSR Act or Competition Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)Canada) shall not be obligated to pay forhave expired or been earlier terminated and any other applicable, agreed upon governmental authorization under antitrust, competition or may delay the acceptance for payment of or payment formerger control laws, any Company Common Shares tendered pursuant to the Offer (and shall not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(dgranted or the relevant waiting period shall not have expired or been earlier terminated; (c) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following events or conditions exists shall occur and is continuing, regardless of be continuing at the circumstances giving rise to such conditionscheduled Expiration Date:

Conditions of the Offer. Notwithstanding For purposes of this Section 15, capitalized terms used in this Section 15 and defined in the Merger Agreement have the meanings set forth in the Merger Agreement, a copy of which is filed as Exhibit (d)(1) of the Schedule TO and is incorporated herein by reference. The obligation of Purchaser to accept for payment and pay for Shares validly tendered (and not withdrawn) pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the conditions below. Accordingly, notwithstanding any other provision of the OfferOffer or the Merger Agreement to the contrary, Purchaser shall not be obligated required to accept for payment, and payment or (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)Act) shall not be obligated to pay for, or and may delay the acceptance for payment of or (subject to any such rules and regulations) the payment for, any tendered Shares, and may amend or terminate the Offer as permitted by the Merger Agreement, if (i) the Minimum Condition shall not be satisfied or waived at 12:00 midnight, Eastern Time, at the end of the scheduled Expiration Date of the Offer; or (ii) any of the following additional conditions shall not be satisfied or waived by 12:00 midnight, Eastern Time, at the end of the scheduled Expiration Date of the Offer: • no Governmental Authority having jurisdiction over any party to the Merger Agreement shall have issued any Order or taken any other action that is in effect (whether temporary, preliminary or permanent) restraining, enjoining or otherwise prohibiting the Offer or the consummation of the Merger and no Applicable Law (which is defined to include, with respect to any Person, any international, national, federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise) shall have been adopted that makes the Offer or consummation of the Merger illegal or otherwise prohibited; • each of the representations and warranties contained in Section 5.02(c) and Section 5.17(f) of the Merger Agreement (which relate to, among other things, the proper authorization and approval by the NetSuite Board to enter into the Merger Agreement and consummate the transactions contemplated by the Merger Agreement pursuant to Section 251(h) of the DGCL and the applicability of the safe harbor provisions of Rule 14d-10 under the Exchange Act to the compensation arrangements between NetSuite and its directors, officers and employees) shall be true in all respects when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any such representation or warranty that is made as of a specified date, which need only be true in all respects as of such specified date); • each of the Specified Company Common Representations (other than the representations and warranties contained in Section 5.02(c) and Section 5.17(f) of the Merger Agreement) which relate to, among other things, the due incorporation and valid existence of NetSuite, NetSuite’s corporate power and authority to enter into the Merger Agreement, the execution and performance of the Merger Agreement not contravening NetSuite’s certificate of incorporation or bylaws, the capitalization of NetSuite, finders’ fees, receipt of a fairness opinion from NetSuite’s financial advisor, and the exemption of the Merger Agreements and the transactions contemplated thereby from antitakeover statutes, to the extent not qualified as to materiality or “Company Material Adverse Effect,” shall be true in all material respects, and to the extent so qualified shall be true in all respects, when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any Specified Company Representation that is made only as of a specified date, which need only be true, to the extent not qualified as to materiality or “Company Material Adverse Effect,” in all material respects, and to the extent so qualified, in all respects, in each case as of such specified date); • the Other Company Representations (i.e., those representations and warranties of NetSuite that are not contained in Section 5.02(c) and Section 5.17(f) of the Merger Agreement and that are not Specified Company Representations), disregarding any materiality or Company Material Adverse Effect qualifications contained therein, shall be true when made and as of immediately prior to the Acceptance Time as if made at and as of such time (other than any Other Company Representations Table of Contents that are made only as of a specified date, which need only to be true as of such specified date); except that the Other Company Representations as thus modified shall be deemed true at any time unless the individual or aggregate impact of the failure to be so true would have or reasonably be expected to have a Company Material Adverse Effect; • Parent shall have received a certificate signed on behalf of NetSuite by a senior Executive Officer of NetSuite certifying to the accuracy of the representations and warranties of NetSuite to the above-specified standards, as applicable and to the number of Shares that were issued and outstanding as of immediately prior to the Acceptance Time; • NetSuite shall have delivered to Parent a certificate of NetSuite executed by the Secretary of NetSuite, dated as of the Acceptance Time, certifying: (i) the approval of the NetSuite Board (upon the unanimous recommendation of the Transactions Committee) of the Merger Agreement and the transactions contemplated thereby, (ii) the certificate of incorporation and bylaws (or similar governing documents) of NetSuite and each of its Subsidiaries, (iii) the name, title, incumbency and signatures of the officers authorized to execute the Merger Agreement and the other agreements contemplated thereby to which NetSuite is a party, and (iv) any and all of the NetSuite Board, committee and stockholder resolutions, consents or other actions taken by the NetSuite Board, any committee of the NetSuite Board or the stockholders between the date of the Merger Agreement and the Acceptance Time; • NetSuite shall have performed in all material respects its obligations under the Merger Agreement, and Parent shall have received a certificate signed on behalf of NetSuite by a senior Executive Officer of NetSuite to the foregoing effect; • there shall not be instituted, pending or overtly threatened any Proceeding (which is defined to include any suit, claim, action, litigation, arbitration, proceeding (including any civil, criminal, administrative, investigative or appellate proceeding), hearing, audit, examination or investigation commenced, brought, conducted or heard by or before, or otherwise involving, any court or other Governmental Authority or any arbitrator or arbitration panel) initiated by any Governmental Authority: • challenging or seeking to make illegal, delay materially or otherwise directly or indirectly restrain or prohibit the Offer, the acceptance for payment by Purchaser of the Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration consummation of the Offer Merger or seeking to obtain material damages in connection therewith; • seeking to restrain or prohibit Parent’s ownership or operation (as it may have been extended pursuant to Section 2.01(dor that of its Affiliates) of all or any material portion of the Agreement)business, there shall have been tendered assets or products of NetSuite and not validly withdrawn Company Common Shares thatits Subsidiaries, considered together with all other Company Common Shares (if any) beneficially owned by taken as a whole, or of Parent and its Affiliates, represent more than 50% taken as a whole, or to compel Parent or any of its Affiliates to dispose of, license (whether pursuant to an exclusive or nonexclusive license) or hold separate all or any material portion of the Company Outstanding Shares. The preceding condition is referred business, assets or products of NetSuite and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, taken as a whole; • seeking, directly or indirectly, to as impose or confirm material limitations on the “Minimum Condition.” Furthermoreability of Parent or any of its Affiliates effectively to acquire, hold or exercise full rights of ownership of Shares or any shares of common stock of the Surviving Corporation, including the right to vote such shares on all matters properly presented to NetSuite’s stockholders; or • seeking in connection with the Offer, the Merger and the other transactions contemplated by the Merger Agreement to require divestiture by Parent, Purchaser or any of Parent’s other Affiliates of any Equity Interests (which are defined to include any share, capital stock, partnership, member or similar interest in any entity, and any option, warrant, right or security convertible, exchangeable or exercisable therefor); • there shall not be required in effect any Order that is reasonably likely to accept for paymentresult, and (subject to the rules and regulations of the SECdirectly or indirectly, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for payment, in any of the following conditions exists and is continuing, regardless of effects referred to above in the circumstances giving rise to such condition:sub-bullet points included in the immediately preceding bullet point;

Conditions of the Offer. Notwithstanding any other provision term of the OfferOffer or the Merger Agreement, Purchaser shall will not be obligated required to, and Parent will not be required to cause Purchaser to, irrevocably accept for paymentpurchase or, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s Purchaser's obligation to pay for or return tendered Company Common Shares promptly after the termination or withdrawal of the Offer)) shall not be obligated to , pay for, or and may delay the acceptance for payment of or or, subject to such rules and regulations, the payment for, for any Company Common tendered Shares tendered pursuant to (i) if the Offer (and not theretofore accepted for payment or paid for) unless, prior to Merger Agreement has been validly terminated in accordance with the expiration terms of the Merger Agreement or (ii) at any scheduled Offer (as it may have Expiration Time, if the Minimum Tender Condition or the Termination Condition has not been extended pursuant to Section 2.01(d) of the Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Sharessatisfied. The preceding condition is referred to as the “Minimum Condition.” Furthermore, Purchaser shall will not be required to, and Parent will not be required to cause Purchaser to, irrevocably accept for paymentpurchase or, and (subject to the rules and regulations of the SECas aforesaid, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for any Shares not theretofore irrevocably accepted for purchase or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay forpaid for if, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to at the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for paymentExpiration Time, any of the following additional conditions exists exist: • any waiting period (or any extension thereof) under the HSR Act applicable to the Transactions has not expired or been terminated and is continuingthe governmental approvals, regardless consents or authorizations under any other applicable antitrust law required by the Merger Agreement have not been obtained (the "Antitrust Condition"); • any governmental authority having jurisdiction over any party has issued any judgment, order, injunction, decree, legal restraint or prohibition, or any applicable law shall be in effect, in each case, as of immediately prior to the Offer Expiration Time, that makes the consummation of the circumstances giving rise Offer or the Merger illegal or otherwise prohibited; • since the date of the Merger Agreement, there has been any Company Material Adverse Effect of which the existence or consequences are still continuing as of immediately prior to such condition:the Offer Expiration Time; Table of Contents •

Conditions of the Offer. Notwithstanding The obligation of Merger Sub to accept for payment and pay for Shares validly tendered (and not validly withdrawn) pursuant to the Offer is subject to the satisfaction of the conditions set forth in clauses “(a)” through “(h)” below. Accordingly, notwithstanding any other provision term of the OfferOffer or the Agreement to the contrary and in addition to (and not in limitation of) Parent’s right to extend, Purchaser amend and terminate the Offer pursuant to the terms of this Agreement, Merger Sub shall not be obligated required to (and Parent shall not be required to cause Merger Sub to) accept for paymentpayment or, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act Rule 14e-l(c) (relating to ParentMerger Sub’s obligation to pay for or return tendered Company Common Shares promptly after the termination or withdrawal of the Offer)) shall not be obligated to , pay for, or and may delay the acceptance for payment of or or, subject to such rules and regulations, the payment for, any Company Common Shares validly tendered pursuant to and not validly withdrawn: (i) if the Merger Agreement has been validly terminated in accordance with Section 8.1; and (ii) at any scheduled Offer Expiration Time (as the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration of the Offer (as it may have been extended pursuant to, and subject to any requirements to extend the Offer pursuant to, Section 2.01(d2.1(c) of the Merger Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares if: (if anyx) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as Minimum Tender Condition or the “Minimum Condition.” Furthermore, Purchaser Termination Condition shall not be required to accept for payment, and satisfied by the Offer Expiration Time; or (subject to the rules and regulations y) any of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) additional conditions set forth below shall not be obligated to pay for, satisfied or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant (to the Offer (and not theretofore accepted for payment or paid forextent permitted by Applicable Law) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such conditionwaived in writing by Parent:

Conditions of the Offer. Notwithstanding any other provision term of the OfferOffer or the Merger Agreement, Purchaser shall not be obligated required to, and Parent shall not be required to cause Purchaser to, accept for paymentpayment or, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s Purchaser's obligation to pay for or return tendered Company Common Shares promptly after the termination or withdrawal of the Offer), pay for any Shares unless (i) there shall have been validly tendered in the Offer and "received" by the "depositary" (as such terms are defined in Section 251(h) of the DGCL) and not be obligated properly withdrawn prior to pay forthe expiration of the Offer that number of Shares (excluding for the avoidance of doubt all Shares delivered pursuant to guaranteed delivery instructions for which certificates have not yet been delivered) which would represent one more share than 50% of the total number of Shares of Common Stock outstanding at the time of the consummation of the Offer, including for the purposes of this calculation, the aggregate number of shares of AveXis common stock issuable to holders of AveXis stock options, AveXis warrants, AveXis restricted stock units and AveXis performance stock units (the "Minimum Tender Condition") and (ii) any waiting period (or may delay any extension thereof) applicable to the acceptance for payment purchase of or payment for, any Company Common Shares tendered pursuant to the Offer (and the consummation of the Merger under the HSR Act shall have expired or been terminated without the imposition of a Burdensome Condition. Furthermore, notwithstanding any other term of the Offer or the Merger Agreement, Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for) unlessfor if, prior to at the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as the “Minimum Condition.” Furthermore, Purchaser shall not be required to accept for payment, and (subject to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following conditions exists and is continuing, regardless exist: • there shall be any judgment issued by any governmental entity of competent jurisdiction or law or other legal restraint or prohibition in effect preventing or prohibiting the consummation of the circumstances giving rise to such condition:Offer or the Merger or imposing a Burdensome Condition; •

Conditions of the Offer. Notwithstanding any other provision provisions of the Offeroffer and in addition to the Purchaser’s rights to extend, amend or terminate the offer in accordance with the provisions of the merger agreement and applicable law, the Purchaser is not obligated to accept for payment, and, subject to the rules and regulations of the SEC (including Rule 14e-1(c) promulgated under the Exchange Act), is not obligated to pay for, or may delay the acceptance for payment of or payment for, any validly tendered Shares pursuant to the offer, unless immediately prior to the expiration of the offer (as extended in accordance with the merger agreement), the number of Shares validly tendered pursuant to the offer (and not withdrawn prior to any then scheduled Expiration Date), together with the Shares then beneficially owned by LabCorp or Purchaser (if any), represents at least a majority of: • all Shares then outstanding (including any shares held in escrow and any restricted stock), plus • all Shares issuable upon the exercise, conversion or exchange of any Monogram options, warrants, convertible notes, stock appreciation rights, restricted stock units, or other rights to acquire Shares then outstanding (other than options with an exercise price, adjusted for any associated contingent value rights payments, that is greater than the offer price) whether or not then vested (collectively, the “Minimum Condition”). Furthermore, the Purchaser shall not be obligated to accept for payment, and (and, subject to the rules and regulations of the SEC, SEC (including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the OfferAct)) , shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common validly tendered Shares tendered pursuant to the Offer (and offer, if: • any waiting period under the HSR Act applicable to the Transactions has not theretofore accepted for payment expired or paid for) unless, terminated immediately prior to the Expiration Date (the “HSR Condition”); or • upon the expiration of the Offer offer and before acceptance of any such Shares for payment (as it may have been extended pursuant to Section 2.01(d) of the Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as the “Minimum Condition.” Furthermore, Purchaser shall not be required to accept for payment, and (subject to the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the OfferOffer Expiration Time”)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following events or conditions exists and is continuingcontinuing at the scheduled Expiration Date, regardless of the circumstances giving rise to such condition:events or conditions: • any restraint is in effect enjoining, restraining, preventing or prohibiting consummation of the offer or the merger or making the consummation of the offer or the merger illegal and any governmental authority has instituted any proceeding seeking any such restraint, in each case, that shall not have been vacated, withdrawn or overturned; • any representation or warranty of Monogram regarding “Capitalization” set forth in certain sections in the merger agreement is not true and correct in all respects (other than for de minimus inaccuracies) as of the date of the merger agreement and as of the Offer Expiration Time as if made as of the Offer Expiration Time (except for representations and warranties made as of a specified date, the accuracy of which will be determined only as of the specified date); Table of Contents • any representation or warranty of Monogram regarding “Organization, Standing and Corporate Power,” “Authority; Noncontravention; Voting Requirements,” “Employee Benefits and Labor Matters” (specifically regarding certain approvals by Monogram’s compensation committee under Rule 14d-10 of the Exchange Act), “Opinion of Financial Advisor,” “Brokers and Other Advisors,” and “State Takeover Statutes; No Rights Agreements” set forth in certain sections in the merger agreement (A) that is qualified by certain “materiality qualifiers” such as “material,” “materially,” “in all material respects,” “in any material respect,” “Company Material Adverse Effect,” or similar words is not true and correct in all respects as of the date of the merger agreement and as of the Offer Expiration Time as if such representation or warranty were made as of the Offer Expiration Time (except for representations or warranties made as of a specified date, the accuracy of which will be determined only as of the specified date), and (B) that is not qualified by a materiality qualifier is not true and correct in all material respects as of the date of the merger agreement and as of the Offer Expiration Time as if such representation or warranty were made as of the Offer Expiration Time (except for representations or warranties made as of a specified date, the accuracy of which will be determined only as of the specified date), or • any representation or warranty of Monogram (other than those referred to above) is not true and correct in all respects as of the date of the merger agreement and as of the Offer Expiration Time as if such representation or warranty were made as of the Offer Expiration Time (except for representations or warranties made as of a specified date, the accuracy of which will be determined only as of the specified date), except, in the case of this bulleted clause, for such failures to be true and correct as would not, individually or in the aggregate, have a Company Material Adverse Effect; provided that, for purposes of this bulleted clause, no effect is given to any materiality qualifier contained in such representations and warranties; • Monogram shall breach or fail to perform or comply with, in any material respect, any obligation, covenant or agreement to be performed or complied with by it under the merger agreement prior to the expiration of the offer, and such breach or failure, if curable, shall not have been cured in all material respects prior to the expiration of the offer; • Monogram shall have failed to deliver to LabCorp a certificate, dated as of the Expiration Date, signed by its chief executive officer and the chief financial officer certifying to the satisfaction of certain conditions; • the merger agreement shall have been terminated in accordance with its terms; • there shall have occurred and be continuing declaration of a banking moratorium or any suspension of payments in respect of banks in the United States generally or in the State of New York, (the “Banking Moratorium Condition”); or • since the date of the merger agreement, there has been or occurred any Company Material Adverse Effect that is continuing. Subject to the terms of the merger agreement, the foregoing conditions are for the benefit of LabCorp and the Purchaser and may be asserted by LabCorp or the Purchaser regardless of the circumstances (including any action or inaction by us) giving rise to any such conditions or may be waived by LabCorp and the Purchaser in whole or in part at any time and from time to time in our sole discretion. The failure by LabCorp or the Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right may be asserted at any time and from time to time prior to the expiration of the offer. Notwithstanding the fact that LabCorp and the Purchaser reserve the right to assert the occurrence of a condition following acceptance for payment but prior to payment in order to delay payment of cash or cancel the Purchaser’s obligation to pay cash for the properly tendered Shares, LabCorp and the Purchaser will either promptly pay for properly tendered Shares or promptly return such Shares. A public announcement will be made of a material change in, or waiver of, such conditions, and the offer may, in certain circumstances, be extended in connection with any such change or waiver. All offer conditions must be satisfied or waived prior to the commencement of any “subsequent offering period.”

Conditions of the Offer. Notwithstanding any other provision provisions of the Offer and subject to the provisions of the Merger Agreement and applicable law, the Purchaser will not be required to accept for payment any validly tendered Shares unless: • the number of Shares validly tendered in accordance with the terms of the Offer, Purchaser shall and not be obligated to accept for paymentvalidly withdrawn, and (subject on or prior to the rules Expiration Date, together with the Shares, if any, then owned by Parent and regulations of its affiliates (including the SEC, including Rule 14e-1(cPurchaser) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, excluding any Company Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received), represent at least one more Share than 50% of the sum (without duplication) of (x) the total number of Shares outstanding at the time of the expiration of the Offer plus (and not theretofore accepted for payment or paid fory) unless, the aggregate number of Shares issuable to holders of Company Options from which Everyday Health has received notices of exercise prior to the expiration of the Offer (and as it may to which Shares have not yet been issued to such exercising holders of Company Options), to the extent that the foregoing Company Options are outstanding immediately prior to Offer Acceptance Time regardless of whether vested or otherwise exercisable at or immediately prior to the Offer Acceptance Time, plus (z) the aggregate number of Shares that will be issuable upon the deemed exercise of any warrants to purchase Everyday Health common stock, to the extent that such warrants are outstanding immediately prior to the Offer Acceptance Time and exercisable at or immediately prior to the Offer Acceptance Time; • the representations and warranties made by Everyday Health in the Merger Agreement are true and correct as of the expiration of the Offer, subject to the materiality and other qualifications set forth in the Merger Agreement; • the covenants of Everyday Health contained in the Merger Agreement have been extended pursuant performed or complied with in all material respects prior to the Offer Acceptance Time; Table of Contents • since October 21, 2016, no Company Material Adverse Effect (as defined in Section 2.01(d13—“Merger Agreement; Other Agreements”) has occurred; • any applicable waiting period (and any extension thereof) under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of the Agreement)1976, there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares as amended (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred which we refer to as the “Minimum Condition.” FurthermoreHSR Act”) has expired or terminated; • Everyday Health has provided Parent and the Purchaser with an officer’s certificate regarding the conditions described in the second, Purchaser shall not be required to accept for paymentthird and fourth bullet points above; • no temporary restraining order, and (subject to preliminary or permanent injunction or other order preventing the rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment acquisition of or payment for, any Company Common for Shares tendered pursuant to the Offer having been issued by any court of competent jurisdiction or remaining in effect nor any action having been taken, or any legal requirement or order promulgated, entered, enforced, enacted, issued or deemed applicable to the Offer or the Merger by any governmental body which directly or indirectly prohibits, or makes illegal, the acquisition of or payment for Shares pursuant to the Offer, or the consummation of the Merger; • the Merger Agreement has not been terminated in accordance with its terms; and • holders of Shares representing no more than 15% of the outstanding Shares have demanded (and not theretofore accepted for payment or paid forwithdrawn) if, upon the expiration appraisal rights under Section 262 of the Offer DGCL for such Shares. The foregoing conditions (as it may have been extended pursuant to Section 2.01(dexcluding the first bullet point of this section) are for the sole benefit of the Purchaser, and, except as restricted by the Merger Agreement) and before acceptance of such Company Common Shares for payment, any of may be asserted by the following conditions exists and is continuing, Purchaser regardless of the circumstances giving rise to any such condition:conditions (other than circumstances giving rise to the failure of such conditions that are solely within the control of Parent or the Purchaser), and may be waived to the extent permitted by applicable law by the Purchaser in their sole discretion in whole or in part at any time and from time to time at or prior to the Expiration Date, in each case subject to the terms of the Merger Agreement. Any reference in the Offer to Purchase or the Merger Agreement to a condition or requirement being satisfied will be deemed to be satisfied if such condition or requirement is waived. The failure by the Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right that may be asserted at any time and from time to time at or prior to the Expiration Date. Any capitalized term used in this Section 14—“Conditions of the Offer” and not otherwise defined in this Offer shall have the meaning set forth in the Merger Agreement.

Conditions of the Offer. Notwithstanding any other provision of the Offer, Purchaser shall and in addition to (and not be obligated in limitation of) the Purchaser's right to accept for payment, extend and amend the Offer at any time in its sole discretion (subject to the rules and regulations provisions of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d) of the Merger Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliates, represent more than 50% of the Company Outstanding Shares. The preceding condition is referred to as the “Minimum Condition.” Furthermore, Purchaser shall not be required to accept for paymentpayment or, and (subject to the any applicable rules and regulations of the SECCommission, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Parent’s obligation to Act, pay for or return any Shares validly tendered Company Common Shares promptly after termination or withdrawal of pursuant to the Offer)) shall not be obligated to pay for, or Offer and may delay postpone the acceptance for payment of or and, subject to the restrictions referred to above, payment for, any Company Common Shares tendered pursuant to the Offer Offer, (i) if any applicable waiting period under the HSR Act shall not have expired or been terminated or (ii) there shall not have been validly tendered and not properly withdrawn prior to the expiration of the Offer that number of Shares representing more than 50% of all Shares outstanding (calculated on a fully diluted basis, which shall mean, as of any date, the number of Shares that are actually issued and outstanding plus the number of Shares that the Company is required to issue pursuant to obligations outstanding under convertible securities, Options and otherwise on the date of purchase) (the "Minimum Condition"). Additionally and without limiting the foregoing, notwithstanding any other provision of the Offer but only in accordance with the provisions of Section 1.01(a) of the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject to the restrictions referred to above, pay for any Shares, and may terminate or amend the Offer and may postpone the acceptance of, subject to the restrictions referred to above, payment for Shares, if at any time on or after the date of the Merger Agreement and at or before the time of payment for any such Shares (whether or not any Shares have theretofore been accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended for pursuant to Section 2.01(dthe Offer) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such conditionevents shall occur:

Conditions of the Offer. Notwithstanding any other provision of the Offer, Purchaser but subject to compliance with the terms and conditions of the Agreement, and in addition to (and not in limitation of) the rights and obligations of Merger Sub to extend and/or amend the Offer pursuant to the terms and conditions of the Agreement, Merger Sub shall not be obligated to accept for payment, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to ParentMerger Sub’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Company Common Shares that, considered together with all other Company Common Shares (if any) beneficially owned by Parent and its Affiliatesaffiliates, represent one share more than 50% of the Company Outstanding Sharesoutstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Purchaser Merger Sub shall not be required to accept for payment, and (subject to the any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to ParentMerger Sub’s obligation to pay for or return tendered Company Common Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for, or may delay the acceptance for payment of or payment for, any Company Common Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 2.01(d1.1(a) of the Agreement) and before acceptance of such Company Common Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such condition:condition (other than any such circumstances directly caused by any breach by Parent or Merger Sub of any of their representations, warranties, covenants, agreements or obligations under the Agreement):