Common use of CERTAIN CONDITIONS OF THE Clause in Contracts

CERTAIN CONDITIONS OF THE. OFFER Notwithstanding any other provision of the Offer, but subject to the terms and conditions of the Merger Agreement (and provided that the Purchaser shall not be obligated to accept for payment any Shares until expiration or termination of all applicable waiting periods under the HSR Act), the Purchaser (x) shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, 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 (y) may delay the acceptance for payment of or (subject to such rules and regulations, including Rule 14e-1(c)) payment for, any tendered Shares, in each case if a majority of the total Shares outstanding on a fully diluted basis and as will permit the Purchaser to effect the Merger without the vote of any person other than the Purchaser shall not have been properly and validly tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer (the "Minimum Condition"), or, if on or 16 19 after the date of the Merger Agreement, and at or before the time of acceptance for payment of any of such Shares, any of the following events shall occur: (a) the Company shall have breached or failed to perform in any material respect any of its obligations, covenants or agreements under the Merger Agreement; (b)(i) any of the representations and warranties of the Company set forth in this Agreement that are qualified by materiality or by Material Adverse Effect (as defined in the Merger Agreement) shall not have been true and correct as of the date of the Merger Agreement or shall not be true and correct on the Expiration Date of the Offer (and any extensions thereof) as though made on and as of such date or (ii) except for such inaccuracies as, individually or in the aggregate, have not had and would not be reasonably likely to have a Material Adverse Effect, the representations and warranties of the Company set forth in the Merger Agreement that are not qualified by materiality or by Material Adverse Effect, shall not have been true and correct as of the date of the Merger Agreement or shall not be true and correct as of the expiration date of the Offer (and any extensions thereof) as though made on and as of such date; (c) there shall be threatened, instituted or pending any action, litigation or proceeding (hereinafter, an "Action") by any governmental entity: (i) challenging the acquisition by Parent or the Purchaser of Shares or seeking to restrain or prohibit the consummation of the Offer or the Merger; (ii) seeking to prohibit or impose any material limitations on Parent's, the Purchaser's or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and its subsidiaries taken as a whole or the business or assets of any significant subsidiary of Royal Philips, or to compel Parent or the Purchaser to dispose of or hold separate all or any portion of Parent's or the Purchaser's or the Company's business or assets (including the business or assets of their respective affiliates and subsidiaries) as a result of the Offer or the Merger; (iii) seeking to impose material limitations on the ability of Parent or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, the Shares including, without limitation, the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the stockholders of the Company; or (iv) that, in any event, would, individually or in the aggregate, reasonably be likely to have a Material Adverse Effect; (d) any statute, rule, regulation, order or injunction shall be enacted, promulgated, entered, enforced or deemed to or become applicable to the Offer or the Merger, or any other action shall have been taken, proposed or threatened, by any court or other governmental entity, that is reasonably expected to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iv) of paragraph (c) above; (e)(i) the Company's stockholders' equity as determined on a consolidated basis in accordance with U.S. GAAP shall be less than $6,000,000 or (ii) Parent shall not have received a certificate signed by the Chief Executive Officer and the Vice President Finance of the Company, dated the Expiration Date of the Offer, certifying that the Company's stockholders' equity determined on consolidated basis in accordance with U.S. GAAP is greater than or equal to $6,000,000; (f) any change or development shall have occurred that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect; or (g) the Merger Agreement shall have been terminated by the Company or Parent or the Purchaser in accordance with its terms; which, in the reasonable judgment of Parent and the Purchaser, in any such case, and regardless of the circumstances (including any action or inaction by Parent or the Purchaser) giving rise to any such conditions, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment of or payment for Shares. The foregoing conditions may be asserted by Parent or the Purchaser regardless of the circumstances (including any action or inaction by Parent or the Purchaser) giving rise to such condition. The 17 20 conditions set forth in paragraphs (a) through (g) above are for the sole benefit of Parent and the Purchaser and may be waived by Parent or the Purchaser, by express and specific action to that effect, in whole or in part at any time and from time to time in their sole discretion. 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. Even if all of the Offer Conditions have been satisfied pursuant to the Merger Agreement, the Purchaser has the right, without the consent of the Company, to extend the Offer for a period of up to 30 business days if it reasonably determines that such an extension is appropriate in order to enable it to purchase at least 90% of the outstanding Shares in the Offer. 12.

CERTAIN CONDITIONS OF THE. OFFER Notwithstanding any other provision of the OfferOffer or the Stock Purchase Agreement, but and in addition to (and not in limitation of) the Purchaser's rights to extend and amend the Offer at any time in its sole discretion (subject to the terms and conditions provisions of the Merger Agreement (and provided that the Purchaser shall not be obligated to accept for payment any Shares until expiration or termination of all applicable waiting periods under the HSR ActStock Purchase Agreement), the Purchaser (x) shall not be required to accept for payment or, and subject to any applicable rules and regulations of the SECCommission, 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 (y) may delay the acceptance Purchaser is not required to accept for payment of or (subject to such rules and regulations, including Rule 14e-1(c)) payment for, pay for any tendered Shares, in each case if a majority of the total Shares outstanding on a fully diluted basis and as will permit the Purchaser to effect the Merger without the vote of any person other than the Purchaser shall not have been properly and validly tendered pursuant to the Offer unless the following conditions shall have been satisfied: (i) there shall have been validly tendered and not withdrawn prior to the expiration of the Offer one million six hundred thousand (1,600,000) Shares; (ii) any waiting period under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall have expired or been terminated; (iii) there shall have been full compliance with Article 13.03 of the Texas Business Corporation Act (the "Minimum ConditionTBCA"), including the approval of the acquisition of the Initial Funding Shares and Second Funding Shares by the Purchaser as contemplated by the Stock Purchase Agreement by the Company's Board of Directors; (iv) the conditions to the Purchaser's obligations to purchase the Second Funding Shares set forth in the Stock Purchase Agreement shall have been satisfied or waived; and (v) the closing of the sale of the Second Funding Shares shall have occurred pursuant to the Stock Purchase Agreement, it being understood that the closing of the Offer shall occur simultaneously with and be conditioned upon the closing of the sale of the Second Funding Shares. Furthermore, notwithstanding any other term of the Offer or the Stock Purchase Agreement, the Purchaser shall not be required to accept for payment or, if subject as aforesaid, to pay for any Shares not theretofore accepted for payment or paid for, and may terminate the Offer if, at any time on or 16 19 after the date of the Merger Agreement, Stock Purchase Agreement and at or before the time acceptance of acceptance such Shares for payment of any of such Sharesor the payment therefor, any of the following events shall occur: conditions exists and with respect to (a), (b), (c), (e) and (f) only, such condition has not been cured within ten (10) days of receipt of notice thereof by the Company shall have breached Purchaser (other than as a result of any action or failed to perform in any material respect inaction of the Purchaser or any of its obligations, covenants or agreements under the Merger Agreement; (b)(i) any subsidiaries that constitutes a breach of the representations and warranties of the Company set forth in this Agreement that are qualified by materiality or by Material Adverse Effect Stock Purchase Agreement): (as defined in the Merger Agreement) shall not have been true and correct as of the date of the Merger Agreement or shall not be true and correct on the Expiration Date of the Offer (and any extensions thereof) as though made on and as of such date or (ii) except for such inaccuracies as, individually or in the aggregate, have not had and would not be reasonably likely to have a Material Adverse Effect, the representations and warranties of the Company set forth in the Merger Agreement that are not qualified by materiality or by Material Adverse Effect, shall not have been true and correct as of the date of the Merger Agreement or shall not be true and correct as of the expiration date of the Offer (and any extensions thereof) as though made on and as of such date; (ca) there shall be threatened, instituted threatened or pending by any actionGovernmental Entity any suit, litigation action or proceeding (hereinafter, an "Action") by any governmental entity: (i) challenging the acquisition by Parent or the Purchaser of any Shares under the Offer or the Stock Purchase Agreement, seeking to restrain or prohibit the making or consummation of the Offer or the Mergerperformance of any of the other transactions contemplated by the Offer, the Stock Purchase Agreement or the Shareholders' Agreement or the Registration Rights Agreement (the "Other Agreements"), or seeking to obtain from the Company or the Purchaser (in the case of the Purchaser in a suit, action, or proceeding related to the Stock Purchase Agreement) any damages that are material in relation to the Company or any of its subsidiaries; (ii) seeking to prohibit or impose any material limitations on Parent's, materially limit the Purchaser's ownership or operation by the Company or any of their respective affiliates' ownership its subsidiaries of a material portion of the business or operation assets of all the Company or any of its subsidiaries or to compel the Company or the Purchaser to dispose of or hold separate any material portion of the business or assets of the Company and or any of its subsidiaries taken as a whole or the business or assets of any significant subsidiary of Royal Philipssubsidiaries, or to compel Parent or the Purchaser to dispose of or hold separate all or any portion of Parent's or the Purchaser's or the Company's business or assets (including the business or assets of their respective affiliates and its subsidiaries) , in each case as a result of the Offer or any of the Mergerother transactions contemplated by the Stock Purchase Agreement or the Other Agreements; (iii) seeking to impose material limitations on the ability of Parent or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, any Shares to be accepted for payment pursuant to the Shares Offer or the Stock Purchase Agreement including, without 31 32 limitation, the right to vote the Shares purchased by them on an equal basis with all other such Shares on all matters properly presented to the stockholders of the Companyshareholders; or (iv) that, in any event, would, individually or in the aggregate, which otherwise is reasonably be likely to have a Material Adverse EffectEffect on the business of the Company or any of its subsidiaries or the Purchaser or any of its subsidiaries, or there shall be pending by any other person any suit, action or proceeding which is reasonably likely to have a Material Adverse Effect on the business of the Company or any of its subsidiaries or the Purchaser or any of its subsidiaries; (db) there shall be enacted, entered, enforced, promulgated or deemed applicable to the Offer by any Governmental Entity, any statute, rule, regulation, judgment, order or injunction shall be enactedinjunction, promulgated, entered, enforced or deemed to or become applicable other than the application to the Offer or of applicable waiting periods under the Merger, or any other action shall have been taken, proposed or threatened, by any court or other governmental entityHSR Act, that is reasonably expected likely to result result, directly or indirectly, in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iv) of paragraph (ca) above; (e)(ic) there shall have occurred any Material Adverse Effect on the business of the Company or any of its subsidiaries; (d) (i) the Company's stockholders' equity as determined on a consolidated basis in accordance with U.S. GAAP shall be less than $6,000,000 or (ii) Parent shall not have received a certificate signed by the Chief Executive Officer and the Vice President Finance Board of Directors of the Company, dated Company or any committee thereof shall have withdrawn or modified in a manner adverse to the Expiration Date Purchaser its approval or recommendation of the Offer, certifying that the Company's stockholders' equity determined on consolidated basis sale of the Initial Funding Shares or the Second Funding Shares, the Stock Purchase Agreement, the Articles of Amendment or any of the Other Agreements or recommendation to the shareholders of the Offer; (ii) the Board of Directors of the Company or any committee thereof shall have resolved to take any of the foregoing actions; (iii) the Company shall have approved or recommended any Takeover Proposal; or (iv) the Company shall have entered into any agreement with respect to any Superior Proposal in accordance with U.S. GAAP is greater than or equal to $6,000,000the Stock Purchase Agreement; (fe) any change of the representations and warranties of the Company set forth in the Stock Purchase Agreement shall not be true and correct in each case: (i) at the date of the Stock Purchase Agreement; and (ii) at the scheduled or development shall have occurred extended expiration of the Offer, except for such matters that, either individually or when combined with any breach of any other representation or warranty of the Company or any fact, circumstance, occurrence, breach or default, or any failure to perform any covenant or obligation all as set forth in Sections 6.2(b) and 6.2(c) of the aggregateStock Purchase Agreement, is are not reasonably likely to have a Material Impact (as defined below); (f) the Company shall have failed to perform any obligation or to comply with any agreement or covenant of the Company to be performed or complied with by it under the Stock Purchase Agreement, except for such matters that, either individually or when combined with any breach of any representation or warranty of the Company set forth in the Stock Purchase Agreement as of the times set forth in Section (e) above, or any fact, circumstance, occurrence, breach or default, or any failure to perform any covenant or obligation all as set forth in Sections 6.2(b) and 6.2(c) of the Stock Purchase Agreement, are not reasonably likely to have a Material Impact; (g) there shall have occurred and continued to exist for not less than three (3) business days (i) any general suspension of trading in, or limitation on prices for, securities on a national securities exchange in the United States (excluding any coordinated trading halt triggered solely as a result of a specified decrease in a market index); (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States; (iii) any limitation (whether or not mandatory) by any Governmental Entity on, or other event that materially adversely affects, the extension of credit by banks or other lending institutions; (iv) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States which in any case is reasonably expected to have a Material Adverse EffectEffect on the Company or the Purchaser's ability to complete the Offer or materially delay the consummation of the Offer; or (gh) the Merger Stock Purchase Agreement shall have been terminated by the Company or Parent or the Purchaser in accordance with its terms; which, . The term "Material Impact" is defined in the reasonable judgment of Parent and Stock Purchase Agreement as any matter or matters having an adverse impact or economic consequence that exceeds $360,000. 32 33 The Stock Purchase Agreement provides that the Purchaser, in any such case, and regardless of the circumstances (including any action or inaction by Parent or the Purchaser) giving rise to any such conditions, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment of or payment for Shares. The foregoing conditions may be asserted by Parent or the Purchaser regardless of the circumstances (including any action or inaction by Parent or the Purchaser) giving rise to such condition. The 17 20 conditions set forth in paragraphs (a) through (g) above are for the sole benefit of Parent and the Purchaser and may may, subject to the terms of the Stock Purchase Agreement, be waived by Parent or the Purchaser, by express and specific action to that effect, Purchaser in whole or in part at any time and from time to time in their its sole discretion. A public announcement will The failure by the Purchaser at any time to exercise any of the foregoing rights shall not be made deemed a waiver 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. Even if all of the Offer Conditions have been satisfied pursuant to the Merger Agreementright, the Purchaser has the right, without the consent waiver of the Company, any such right with respect to extend the Offer for particular facts and circumstances shall not be deemed a period of up waiver with respect to 30 business days if it reasonably determines any other facts and circumstances and each such right shall be deemed an ongoing right that such an extension is appropriate in order may be asserted at any time and from time to enable it to purchase at least 90% of the outstanding Shares in the Offertime. 1215.

CERTAIN CONDITIONS OF THE. OFFER Notwithstanding any other provision term of the Offer, but subject to the terms and conditions of Offer or the Merger Agreement (Agreement, Furon and provided that the Purchaser shall not be obligated to accept for payment any Shares until expiration or termination of all applicable waiting periods under the HSR Act), the Purchaser (x) shall will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to the Purchaser's obligation or to pay for or return any Shares tendered Shares promptly after termination or withdrawal of pursuant to the Offer), pay forand, in their good faith discretion, may terminate or amend the Offer, and (y) may delay postpone the acceptance for payment of or Shares pursuant thereto, unless, (subject to such rules and regulations, including Rule 14e-1(c)i) payment for, any tendered Shares, in each case if a majority of the total Shares outstanding on a fully diluted basis and as will permit the Purchaser to effect the Merger without the vote of any person other than the Purchaser shall not there have been properly and validly tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer at least 3,729,961, Shares (representing 60% of the "Minimum Condition"Shares at November 12, 1996), orand (ii) any waiting period under the HSR Act applicable to the purchase of Shares pursuant to the Offer has expired or been terminated. Furthermore, if on notwithstanding any other terms of the Offer or 16 19 after the date of the Merger Agreement, Furon and at Purchaser will not be required to accept for payment or before to pay for any Shares not theretofore accepted for payment or paid for, and, in their good faith discretion, may terminate or amend the time of Offer and may postpone the acceptance for payment of Shares pursuant thereto if, at any time on or after November 12, 1996 and before the acceptance of such SharesShares for payment or the payment therefor, any of the following events shall occurconditions exists: (a) the Company shall have breached any statute, rule, regulation or failed order is proposed, enacted, entered or deemed applicable to perform in any material respect any of its obligations, covenants or agreements under the Merger Agreement; (b)(i) any of the representations and warranties of the Company set forth in this Agreement that are qualified by materiality or by Material Adverse Effect (as defined in the Merger Agreement) shall not have been true and correct as of the date of the Merger Agreement or shall not be true and correct on the Expiration Date of the Offer (and any extensions thereof) as though made on and as of such date or (ii) except for such inaccuracies as, individually or in the aggregate, have not had and would not be reasonably likely to have a Material Adverse Effect, the representations and warranties of the Company set forth in the Merger Agreement that are not qualified by materiality or by Material Adverse Effect, shall not have been true and correct as of the date of the Merger Agreement or shall not be true and correct as of the expiration date of the Offer (and any extensions thereof) as though made on and as of such date; (c) there shall be threatened, instituted or pending any action, litigation or proceeding (hereinafter, an "Action") by any governmental entity: (i) challenging the acquisition by Parent or the Purchaser of Shares or seeking to restrain or prohibit the consummation of the Offer or the Merger; Merger (i) making the purchase of, or payment for, some or all of the Shares pursuant to the Offer, or the Merger Agreement illegal, or resulting in a material delay in the ability of Furon or Purchaser to accept for payment or pay for some or all of the Shares, or to consummate the Offer or Merger or seeking to obtain from the Company, Furon or Purchaser any damages or other remedy or relief that would have a material adverse effect on the Company and its subsidiaries taken as a whole, (ii) seeking to prohibit or impose any imposing material limitations on Parent'sthe ability of Furon or Purchaser effectively to acquire or hold or to exercise full rights of ownership of the Shares acquired by it, including the Purchaser's right to vote the Shares purchased by it on all matters properly presented to the Shareholders of the Company, (iii) which would require Furon or any direct or indirect subsidiary of their respective affiliates' ownership Furon to dispose of or operation hold separate any of the Shares or all or any material portion of the assets or business of the Company and its subsidiaries taken as a whole; or (iv) prohibit or materially limit the ability of Furon or any direct or indirect subsidiary of Furon to own, control or operate the Company, or any of its subsidiaries or all or any material portion of the businesses, operations or assets of the Company and its subsidiaries taken as a whole or the business or assets of any significant subsidiary of Royal Philips, or to compel Parent or the Purchaser to dispose of or hold separate all or any portion of Parent's or the Purchaser's or the Company's business or assets (including the business or assets of their respective affiliates and subsidiaries) as a result of the Offer or the Merger; (iii) seeking to impose material limitations on the ability of Parent or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, the Shares including, without limitation, the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the stockholders of the Companywhole; or (ivb) thatany shareholder approval required by Section 1701.831 of the ORC for a Control Share Acquisition by Furon or Purchaser is not obtained, unless the Purchaser determines, in any eventits reasonable discretion, would, individually that such Section is invalid or in inapplicable to the aggregate, reasonably be likely purchase of Shares pursuant to have a Material Adverse Effectthe Offer; or (dc) any statutegovernmental or regulatory action or proceeding by or before any court, rulegovernment or governmental or regulatory authority, regulationdomestic or foreign, order or injunction shall be enactedthreatened, promulgated, entered, enforced instituted or deemed to or become applicable to the Offer or the Mergerpending, or any other action shall have been taken, proposed or threatened, proceeding by any court other person, domestic or other governmental entityforeign, that is instituted or pending, which would reasonably be expected to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iv) of paragraph (ca) above; or (e)(id) the Company's stockholders' equity Company has not complied in all material respects with its agreements and covenants in the Merger Agreement, or its representations and warranties in the Merger Agreement, when made or at and as determined of any time thereafter, are untrue or incomplete in any material respect or Furon becomes aware of any 25 28 previously undisclosed liability that has a material adverse effect on the Company and its subsidiaries taken as a consolidated basis in accordance with U.S. GAAP shall be less than $6,000,000 whole; or (iie) Parent shall not have received an offer is publicly proposed to be made or has been made on or after the date of this Offer to Purchase by another person or by a certificate signed by the Chief Executive Officer and the Vice President Finance "group" of persons as defined in Section 13(d)(3) of the Company, dated the Expiration Date of the Offer, certifying that the Company's stockholders' equity determined on consolidated basis in accordance with U.S. GAAP is greater than or equal to $6,000,000; (f) any change or development shall have occurred thatExchange Act, individually or in the aggregate, to purchase or exchange for cash or other consideration 20% or more of the Shares, or 20% or more of the Shares have been or are proposed to be acquired by another person or by a group of persons or another person or group of persons enters into a definitive agreement or an agreement in principle with the Company with respect to a merger, consolidation or other business combination transaction with, or an acquisition of a material portion of the assets of, the Company or its subsidiaries; or (f) any change (or any development involving a prospective change) occurs in the business, financial condition or results of operations of the Company or any of its subsidiaries that has had or is reasonably likely expected to have a Material Adverse Effectmaterial adverse effect upon the Company and its subsidiaries as a whole (including changes in conditions, such as economic or political developments, applicable to the business of the Company and its subsidiaries as set forth in the Company's strategic business plan or applicable to the medical device manufacturing and distributing business currently conducted by the Company); or (g) there occurs (i) any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange or in the over-the-counter market, (ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (iii) the commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States, (iv) any limitation by any governmental authority on, or any other event which, in the sole judgment of Purchaser, affects the extension of credit by banks or other financial institutions, (v) a material adverse change in the United States exchange rates or a suspension of, or limitation on, the markets therefor, (vi) a decrease of more than 25% in the Dow Jonex Industrial Average, or (vii) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or worsening thereof; or (h) the Merger Agreement shall have been is terminated by or amended to provide for the Company amendment or Parent or termination of the Purchaser in accordance with its termsOffer; which, in the reasonable judgment good faith discretion of Parent and the PurchaserFuron, in any such case, and case regardless of the circumstances (including any action or inaction omission by Parent or the Purchaser) giving rise to any such conditions, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment of or payment for Sharesor makes it advisable to terminate or amend the Offer. The foregoing conditions may be asserted by Parent or the Purchaser regardless of the circumstances (including any action or inaction by Parent or the Purchaser) giving rise to such condition. The 17 20 conditions set forth in paragraphs (a) through (g) above are for the sole benefit of Parent Furon and the Purchaser and may be asserted by Furon and Purchaser regardless of the circumstances giving rise to any such conditions or may be waived by Parent Furon or the Purchaser, by express and specific action to that effect, Purchaser in whole or in part part, at any time and from time to time in their sole discretion. A public announcement The failure by Furon or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each right will be made of a material change in, deemed an on-going right which may be asserted at any time and from time to time. Any determination by Furon or waiver of, such conditions, and the Offer may, in certain circumstances, be extended in connection with Purchaser concerning any such change or waiver. Even if all of the Offer Conditions have been satisfied pursuant to the Merger Agreement, the Purchaser has the right, without the consent of the Company, to extend the Offer for a period of up to 30 business days if it reasonably determines that such an extension is appropriate in order to enable it to purchase at least 90% of the outstanding Shares events described in the Offerabove conditions will be final and binding on all parties. 1215.

CERTAIN CONDITIONS OF THE. OFFER Notwithstanding any other provision of the Offer, but subject to the terms and conditions of the Merger Agreement (and provided that the Purchaser shall not be obligated to accept for payment any Shares until expiration or termination of all applicable waiting periods under the HSR Act), the Purchaser (x) shall not be required to accept for payment payment, purchase or pay for any Shares tendered until the expiration or termination of any applicable waiting period under the HSR Act, and Purchaser may terminate or, subject to any applicable rules and regulations the terms of the SECMerger Agreement, including Rule 14e-1(c) promulgated under amend the Exchange Act (relating to Offer and may postpone the Purchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay forpurchase of, and (y) may delay the acceptance for payment of or (subject to such rules and regulations, including Rule 14e-1(c)) payment for, any tendered Shares, in each case Shares if fewer than a majority of the total Shares then issued and outstanding on a fully diluted basis and as will permit (including without limitation, all Shares issuable upon the Purchaser to effect the Merger without the vote exercise of any person other than the Purchaser shall not have been properly and options, warrants or rights) are validly tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer Expiration Date (the "Minimum Condition")) or if, or, if at any time on or 16 19 after the date of the Merger Agreement, and at or before prior to the time of acceptance for payment of any of such SharesShares for payment, any of the following events shall occuroccur and remain in effect: (a) an order shall have been entered in any action or proceeding before any United States federal or state court or governmental agency or other United States regulatory or administrative agency or commission (an "Order"), or a preliminary or permanent injunction by a United States court of competent jurisdiction shall have been issued and remain in effect (an "Injunction"), which in either case (i) prohibits the making or consummation of the Offer or the consummation of the Merger, (ii) significantly restricts the ability of Purchaser, or renders Purchaser unable, to accept for payment, pay for or purchase Shares sufficient to satisfy the Minimum Condition in the Offer or the remaining Shares outstanding in the Merger (other than as a result of the exercise of dissenters' rights and other than for delays or restrictions that are not material to Parent and Purchaser), (iii) prohibits or restricts the ownership or operation by Parent or Purchaser (or any of their respective affiliates or subsidiaries) of any portion of its or the Company's business or assets which is material to the business of the Company and its subsidiaries taken as a whole or of Parent and its subsidiaries taken as a whole or compels Parent or 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 the Company and its subsidiaries taken as a whole or of Parent and its subsidiaries taken as a whole, (iv) imposes material limitations on the ability of Purchaser effectively to acquire or to hold or to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by Purchaser on all matters properly presented to the stockholders of the Company, (v) imposes any material limitations on the ability of Parent or 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 (vi) which otherwise would result in a Company Material Adverse Effect; provided, however, that Parent and Purchaser shall have complied with Section 5.5 of the Merger Agreement and that in order to invoke this condition Parent and Purchaser shall have used their respective reasonable best efforts to prevent such Order or Injunction or ameliorate the effects thereof; and provided, further, that if the Order or Injunction is a temporary restraining order or preliminary injunction of a court of competent jurisdiction Purchaser may not by virtue of this condition alone amend or terminate the Offer, but may only extend the Offer and thereby postpone acceptance for payment or purchase of Shares; or (b) there shall have been any United States federal or state statute, rule or regulation enacted or promulgated after the date of the Offer that would result in any of the material adverse consequences referred to in paragraph (a) above; or 29 32 (c) there shall have occurred and be continuing (in any event, for not less than two consecutive days) (i) any general suspension of, or limitation on prices for, trading in securities on any national securities exchange or on the Nasdaq National Market, (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory), (iii) the commencement of a war, armed hostilities or other international or national calamity directly involving the United States, (iv) from the date of commencement of the Offer, a decline of at least 25 percent in the Standard & Poor's 500 Index, (v) any limitation by any U.S. governmental authority or agency that materially affects generally the extension of credit by banks or other financial institutions or (vi) in the case of any of the foregoing existing at the time of the commencement of the Offer, a material acceleration or worsening thereof; or (d) the Company shall have breached or failed to perform in any material respect any of its obligations, covenants or agreements under the Merger Agreement; (b)(i) any of the representations and warranties of the Company set forth contained in this Agreement that are qualified by materiality or by Material Adverse Effect (as defined in the Merger Agreement) shall not have been true and correct as of the date of the Merger Agreement or shall not be true and correct on the Expiration Date any of the Offer (and any extensions thereof) as though made on and as of such date or (ii) except for such inaccuracies as, individually or in the aggregate, have not had and would not be reasonably likely to have a Material Adverse Effect, the representations and warranties of the Company set forth in the Merger Agreement that are not qualified by materiality (other than such breaches, failures to perform or by Material Adverse Effectinaccuracies which, shall not have been true and correct as of the date of the Merger Agreement or shall not be true and correct as of the expiration date of the Offer (and any extensions thereof) as though made on and as of such date; (c) there shall be threatened, instituted or pending any action, litigation or proceeding (hereinafter, an "Action") by any governmental entity: (i) challenging the acquisition by Parent or the Purchaser of Shares or seeking to restrain or prohibit the consummation of the Offer or the Merger; (ii) seeking to prohibit or impose any material limitations on Parent's, the Purchaser's or any of their respective affiliates' ownership or operation of all or any material portion of the business or assets of the Company and its subsidiaries taken as a whole or the business or assets of any significant subsidiary of Royal Philips, or to compel Parent or the Purchaser to dispose of or hold separate all or any portion of Parent's or the Purchaser's or the Company's business or assets (including the business or assets of their respective affiliates and subsidiaries) as a result of the Offer or the Merger; (iii) seeking to impose material limitations on the ability of Parent or the Purchaser effectively to acquire or hold, or to exercise full rights of ownership of, the Shares including, without limitation, the right to vote the Shares purchased by them on an equal basis with all other Shares on all matters properly presented to the stockholders of the Company; or (iv) that, in any event, would, individually or in the aggregate, could not reasonably be likely expected to have a Company Material Adverse Effect; (d) any statute, rule, regulation, order or injunction shall be enacted, promulgated, entered, enforced or deemed to or become applicable to the Offer or the Merger, or any other action shall have been taken, proposed or threatened, by any court or other governmental entity, that is reasonably expected to result in any of the effects of, or have any of the consequences sought to be obtained or achieved in, any Action referred to in clauses (i) through (iv) of paragraph (c) above; (e)(i) the Company's stockholders' equity as determined on a consolidated basis in accordance with U.S. GAAP shall be less than $6,000,000 or (ii) Parent shall not have received a certificate signed by the Chief Executive Officer and the Vice President Finance of the Company, dated the Expiration Date of the Offer, certifying that the Company's stockholders' equity determined on consolidated basis in accordance with U.S. GAAP is greater than or equal to $6,000,000; (f) any change or development shall have occurred that, individually or in the aggregate, is reasonably likely to have a Material Adverse Effect); or (ge) the Merger Agreement shall have been terminated by the Company or Parent or the Purchaser in accordance with its terms; whichor (f) the Board of Directors of the Company shall have publicly withdrawn or modified in any manner adverse to Purchaser its recommendation that stockholders accept the Offer; provided, however, that Purchaser shall not be entitled to terminate the Offer pursuant to this paragraph if, as a result of a Superior Offer, the Company withdraws or modifies its approval or recommendation of the transactions contemplated hereby by reason of taking, and disclosing to the Company's stockholders, a position with respect to a tender offer contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act and if, within five business days of taking and disclosing such position, the Company publicly reaffirms its recommendation of the transactions contemplated by the Merger Agreement which in the reasonable judgment of Parent with respect to each and the Purchaser, in any such case, and every matter referred to above regardless of the circumstances (including any action or inaction by Parent or the Purchaser) giving rise to any such conditionscondition, makes it inadvisable advisable to proceed with the Offer and/or or with such acceptance for payment of or payment for Sharespayment. The foregoing conditions set forth in paragraph (a) through (f) are for the sole benefit of Purchaser and may be asserted by Parent or the Purchaser regardless of the circumstances giving rise to any such conditions (including any action or inaction by Parent or the Purchaser) giving rise or, subject to such condition. The 17 20 conditions set forth in paragraphs (a) through (g) above are for the sole benefit terms of Parent and the Purchaser and Merger Agreement, may be waived by Parent or the Purchaser, by express and specific action to that effect, Purchaser in whole or in part part. The failure by Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and such right shall be deemed a continuing right which may be asserted at any time and from time to time in their sole discretiontime. 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. Even if all of the Offer Conditions have been satisfied pursuant to the Merger Agreement, the Purchaser has the right, without the consent of the Company, to extend the Offer for a period of up to 30 business days if it reasonably determines that such an extension is appropriate in order to enable it to purchase at least 90% of the outstanding Shares in the Offer. 1215.