Common use of Conditions of the Offer Clause in Contracts

Conditions of the Offer. Notwithstanding any other provision of the Offer, 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 any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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it may have been extended pursuant to Section 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such 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):

Conditions of the Offer. ​ The Offer is not subject to any financing condition. Notwithstanding any other provision provisions of the Offer, Offer but subject to compliance with the terms and conditions of the Merger Agreement, and in addition to (and Purchaser is 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 required to accept for paymentpurchase or, and (subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the OfferAct)) shall not be obligated to , pay for any Shares validly tendered (and not validly withdrawn) in the Offer, unless, immediately prior to the then-scheduled applicable Offer Expiration Time: • the Minimum Tender Condition has been satisfied; ​ • the Antitrust Approvals Condition has been satisfied; ​ • no governmental authority of competent jurisdiction has enacted, issued, promulgated, or entered any order or applicable law that would make the Offer or the Merger illegal or otherwise prevent the consummation thereof; ​ • The representations and warranties of the Company (i) set forth in Section 3.12(b) of the Merger Agreement (absence of material adverse effect) shall be true and correct in all respects as of the Offer Expiration Time with the same effect as though made as of the Offer Expiration Time, (ii) set forth in the first three sentences of Section 3.8(a) of the Merger Agreement (the Company’s authorized, issued and outstanding equity securities) shall be true and correct in all respects (except for what is de minimis in nature) as of the Offer Expiration Time with the same effect as though made as of the Offer Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), (iii) set forth in Section 3.1 (organization and power), Section 3.3 (corporate authorization), Section 3.4 (enforceability), the last sentence of Section 3.8(a) (treatment of Company equity awards), Section 3.8(b) (due authorization of the Shares), Section 3.8(c) (no further issuance of equity securities), Section 3.8(e) (no outstanding obligations relating to equity securities) and Section 3.8(f) (no voting trusts) (solely as such representations relate to the Company), Section 3.27 (opinion of financial advisor) and Section 3.28 (no broker’s fees) of the Merger Agreement shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) in all material respects as of the Offer Expiration Time with the same effect as though made as of the Offer Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date) and (iv) set forth in the Merger Agreement, other than those Sections specifically identified in clauses (i), (ii) and (iii) of this paragraph, shall be true and correct (disregarding all qualifications or limitations as to “materiality”, “Company Material Adverse Effect” and words of similar import set forth therein) as of the Offer Expiration Time with the same effect as though made as of the Offer Expiration Time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except, in the case of this clause (iv), where the failure to be true and correct would not reasonably be expected to have a Company Material Adverse Effect (the “Company Representation Condition”); ​ • the Company has performed or complied with, in all material respects, its obligations, agreements and covenants required by the Merger Agreement to be performed or complied with by it on or prior ​ TABLE OF CONTENTS​ to the Offer Expiration Time and any such failure to comply has not been cured by the Offer Expiration Time (the “Obligations Condition”); • since April 7, 2022, there has not been any fact, change, event, development, occurrence or effect that has had, or would reasonably be expected to have, a Company Material Adverse Effect that is continuing (the “Material Adverse Effect Condition”); ​ • the Company shall have delivered to Parent a certificate, signed by an executive officer of the Company, certifying that the Company Representation Condition, the Obligation Condition and the Material Adverse Effect Condition have been satisfied; ​ • the Termination Condition has been satisfied; and ​ • the Inside Date Condition has been satisfied. ​ For purposes of determining whether the Minimum Tender Condition has been satisfied, Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not been “received” ​(as such terms are defined by Section 251(h) of the DGCL) prior to the Offer Expiration Time are excluded. The conditions to the Offer must be satisfied or waived (to the extent waiver is permitted under applicable law) on or prior to the Offer Expiration Time. The conditions described above are in addition to, and not a limitation of, the rights and obligations of Parent and Purchaser to extend, terminate or modify the Offer pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration terms of the Offer (as it Merger Agreement. The conditions described above are for the sole benefit of Parent and Purchaser and may have been extended pursuant to Section 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned be waived by Parent and its affiliatesPurchaser in whole or in part, represent one share more than 50% at any time and from time to time in their sole discretion, except that Parent and Purchaser are not permitted to waive the Minimum Tender Condition or the Termination Condition, except, in the case of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub with the prior written consent of the Company. The failure by Parent or Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances shall not be required to accept for payment, and (subject deemed a waiver with respect to any applicable rules other facts and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating circumstances and each such right will be deemed an ongoing right that may be asserted at any time and from time to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such 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):time.

Conditions of the Offer. Notwithstanding any other provision provisions of the Offer, but subject to compliance with the terms and conditions of the Agreement, Offer and in addition to (and not in limitation of) the Purchaser’s rights and obligations of Merger Sub to extend and/or extend, amend or terminate the Offer pursuant to in accordance with the terms and conditions provisions of the AgreementMerger Agreement and applicable law, Merger Sub shall the Purchaser will not be obligated required to accept for paymentpayment or, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to Act, pay for any Shares validly tendered pursuant to Shares, and may delay the Offer (and not theretofore accepted acceptance for payment or paid for) unlessof or, prior to the expiration of the Offer (as it may have been extended pursuant to Section 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return Act, the payment for, any validly tendered Shares promptly after termination if: • the Minimum Condition has not been satisfied at the Expiration Date; • any waiting period under the HSR Act or withdrawal any timing agreement entered into by Lilly or ImClone with any governmental entity applicable to the transactions contemplated by the Merger Agreement has not expired or terminated at or prior to the Expiration Date; • any consents or approvals of, or notices to or filings with, any governmental entity that are required to be obtained or made in connection with the transactions contemplated by the Merger Agreement under applicable antitrust, competition or similar laws (other than the HSR Act), the Offer and the Merger or any other material consents or approvals of, or material notices to or filings with, any governmental entity having jurisdiction over Lilly, ImClone, their respective subsidiaries or any of the Offer)respective properties, assets, businesses or activities applicable to the transactions contemplated by the Merger Agreement (“Required Governmental Approvals”) shall not have been obtained or made or any waiting period (or extension thereof) shall not have lapsed or been made either unconditionally or on terms reasonably satisfactory to Lilly at or prior to the Expiration Date; • at the Expiration Date, there shall be obligated to pay for pending or threatened in writing any suit, action or proceeding by any governmental entity of competent jurisdiction against Lilly, the Purchaser, ImClone or any of ImClone’s subsidiaries or otherwise in connection with the Offer or the Merger: • challenging the acquisition by Lilly or the Purchaser of any Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) ifseeking to make illegal, upon restrain or prohibit the expiration making or consummation of the Offer (as it may have been extended pursuant to Section 1.1(a) of or the Agreement) and before acceptance of such Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such 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):Merger; 49

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 Offer, but subject to compliance with Offer or Table of Contents 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 Agreement to the terms and conditions of the Agreementcontrary, Merger Sub Purchaser shall not be obligated required to accept for payment, and payment or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and may delay the acceptance for payment 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 the Minimum Condition or 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) of the Merger Agreement (which relate to the Company’s authority to enter into the Merger Agreement under Maryland Law) 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 Representations (other than the representations and warranties contained in Section 5.02(c) of the Merger Agreement) which relate to, among other things, the due incorporation and valid existence of the Company, the Company’s corporate power and authority to enter into the Merger Agreement, the execution and performance of the Merger Agreement not contravening the Company’s article of incorporation or bylaws, the capitalization of the Company, applicability of the safe harbor provisions of Rule 14d-10 under the Exchange Act (relating to Merger Subthe compensation arrangements between the Company and its directors, officers and employees, finders’ fees, receipt of a fairness opinion from the Company’s obligation to pay for or return tendered Shares promptly after termination or withdrawal financial advisor, and the exemption of the OfferMerger 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 the Company that are not contained in Section 5.02(c) 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 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 the Company by a senior Executive Officer of the Company regarding the accuracy of the representations and warranties of the Company to the above-specified standards, as applicable; • the Company shall have delivered to Parent a certificate of the Company executed by the Secretary of the Company, dated as of the Acceptance Time, certifying: (i) the approval of the Company Board of Table of Contents the Merger Agreement and the transactions contemplated thereby, (ii) the articles of incorporation and bylaws (or similar governing documents) of the Company 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 the Company is a party, and (iv) any and all Company Board, committee and stockholder resolutions, consents or other actions taken by the Company Board, any committee of the Company Board or the stockholders between the date of the Merger Agreement and the Acceptance Time; • the Company shall have performed in all material respects its obligations under the Merger Agreement, and Parent shall have received a certificate signed on behalf of the Company by a senior Executive Officer of the Company to the foregoing effect; • there shall not be obligated instituted, pending or overtly threatened any Proceeding (which is defined to pay 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 any payment by Purchaser of the Shares tendered pursuant to the Offer or the consummation of the Merger or seeking to obtain material damages in connection therewith; • seeking to restrain or prohibit Parent’s ownership or operation (or that of its Affiliates) of all or any material portion of the business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, 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 business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, taken as a whole; • seeking, directly or indirectly, to impose or confirm material limitations on the ability of Parent or any of its Affiliates effectively to acquire, hold or exercise full rights of ownership of the Shares or any shares of common stock of the Surviving Corporation, including the right to vote such shares on all matters properly presented to the Company’s stockholders; or • seeking in connection with the Offer, the Merger and the other transactions contemplated hereby 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 in effect any Order that is reasonably likely to result, directly or indirectly, in any of the effects referred to above in the sub-bullet points included in the immediately preceding bullet point; • the applicable waiting period (and not theretofore accepted for payment any extension thereof, subject to Section 7.10(d) of the Merger Agreement (which, among other things, provides that neither Parent nor the Company will commit to or paid foragree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or applicable Foreign Competition Laws without the prior written consent of the other)) unless, prior applicable to the Merger or the Offer under the HSR Act or any Foreign Competition Law shall have expired or been terminated, and any affirmative approval, consent, authorization or waiver of any Governmental Authority required under any Foreign Competition Law shall have been obtained (the condition described in this bullet point, the “Antitrust Condition”); • the Company shall have complied in all respects its obligations under Section 7.01(h) of the Merger Agreement (which provides that the Company shall not take various actions related to, among other things, the hiring, termination, or modification of the terms of employment or engagement (including compensation) of employees, consultants, contractors and advisors); Table of Contents • there has not been any fact, event, change, development or set of circumstances that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; • no Triggering Event (the definition of which is summarized above in Section 11 – “The Merger Agreement; Other Agreements – The Merger”) shall have occurred; and • the Merger Agreement shall not have been terminated in accordance with its terms. The foregoing conditions are for the sole benefit of Parent and Purchaser and (except for the Minimum Condition) may be waived by Parent and Purchaser, in whole or in part at any time and from time to time, in the sole discretion of Parent and Purchaser. However, if an event occurs that will result in a failure of a condition to the Offer to be satisfied as of the scheduled expiration of the Offer, Purchaser will disclose whether or not it is waiving that condition promptly after learning of such event unless the condition is one where satisfaction of the condition may be determined only upon expiration of the Offer (as it may have been extended pursuant or Purchaser is unable to Section 1.1(a) determine whether the event will result in a failure of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Conditionbe satisfied.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such 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):

Conditions of the Offer. Notwithstanding any other provision of the Offer, but subject to compliance with the terms and conditions of the Agreement, and in addition to (and Purchaser is 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 required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for payment or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any validly tendered Shares in the Offer and may delay the acceptance for payment of any validly tendered Shares if: • the Minimum Condition shall not have been satisfied at the Expiration Date; • any waiting period under the HSR Act (and any extensions thereof) applicable to the purchase of Shares pursuant to the Offer (and the consummation of the Merger has not theretofore accepted for payment expired or paid for) unlessbeen terminated, and all applicable waiting periods under any other applicable antitrust law shall not have expired or been terminated and all applicable consents or approvals required under any other applicable antitrust law shall not have been obtained; • at any time on or after the date of the Merger Agreement and prior to the expiration of the Offer (as it may have been extended pursuant to Section 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such Shares for paymentExpiration Date, any of the following shall have occurred and be continuing at the Expiration Date: o a governmental authority of competent jurisdiction in the United States of America, Germany or Austria shall have enacted, issued, promulgated, enforced or entered any decision, injunction, decree, ruling, law or order that shall be in effect and shall have the effect of making the Offer or the Merger illegal or otherwise prohibiting the consummation of the Offer and the Merger. 62 o the representations and warranties made by Exa in the Merger Agreement relating to Exa's organization and qualification, subsidiaries, organizational documents, authority to execute and deliver the Merger Agreement and to perform its obligations thereunder and to consummate the transactions as contemplated by the Merger Agreement, absence of a Company Material Adverse Effect since January 31, 2017 through the date of the Merger Agreement, or takeover laws shall fail to be true and correct as of the Expiration Date (except to the extent such representation or warranty was expressly made as of a particular date, in which case on and as of such date); o the representations and warranties made by Exa in the Merger Agreement relating to Exa's capitalization shall fail to be true and correct as of the Expiration Date (except to the extent such representation or warranty was expressly made as of a particular date, in which case on and as of such date), except for de minimis deviations; o the remaining representations and warranties made by Exa in the Merger Agreement shall fail to be true and correct (without giving effect to any qualifications as to "materiality" or "Company Material Adverse Effect" set forth therein) as of the Expiration Date (except to the extent such representation or warranty was expressly made as of a particular date, in which case on and as of such date), except where the failure of such representation or warranty of Exa to be so true and correct, individually or in the aggregate, shall not have, and would not reasonably be expected to result in, a Company Material Adverse Effect; o Exa shall have breached or failed to perform, in any material respect, any obligation, agreement or covenant of Exa to be performed or complied with by it under the Merger Agreement; o there shall have occurred since the date of the Merger Agreement a Company Material Adverse Effect; o Parent and Purchaser shall have failed to receive a certificate executed by Xxx's Chief Executive Officer or President on behalf of Exa, dated as of the Expiration Date, to the effect that the conditions exists set forth in the second through sixth bullet points above shall have been satisfied; or o the Merger Agreement shall have been terminated in accordance with its terms. The foregoing conditions are for the sole benefit of Parent and is continuing, Purchaser and may be asserted by Parent or Purchaser regardless of the circumstances giving rise to such condition (other than any such circumstances directly caused conditions and may be waived in writing, as permitted by any breach applicable law, by Parent or Purchaser (except for the Minimum Condition) in whole or in part at any time and from time to time in their sole discretion, in each case subject to the terms of the Merger Sub of any of their representations, warranties, covenants, agreements or obligations under the Agreement):.

Conditions of the Offer. Notwithstanding any other provision provisions of the Offer, but subject to compliance with the terms and conditions provisions of the Merger Agreement, and in addition to (and not in limitation of) the Purchaser’s rights and obligations of Merger Sub to extend and/or or amend the Offer pursuant to in accordance with the terms and conditions provisions of the Agreement, Merger Sub shall not be obligated to accept for payment, Agreement and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of Act, the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall Purchaser will not be required to accept for paymentpayment or pay for, and (may delay the acceptance for payment of or, subject to the provisions of the Merger Agreement and any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act, the payment for, any validly tendered Shares if: • the Minimum Condition shall not have been satisfied at the Expiration Date; • any waiting period under the HSR Act applicable to the transactions contemplated by the Merger Agreement has not expired or terminated at or before the Expiration Date; Table of Contents • any other Required Approvals (as defined below) shall not have been obtained or any waiting period, or extension thereof, or mandated filing shall not have lapsed or been made either unconditionally or on terms satisfactory to Cytyc at or before the Expiration Date; • any of the following events has occurred and is continuing at the Expiration Date: • there shall be threatened in writing or pending any suit, action or proceeding by any governmental entity of competent jurisdiction against Cytyc, the Purchaser or Adeza: • challenging the acquisition by the Purchaser of any Shares pursuant to the Offer, or seeking to restrain or prohibit the making or consummation of the Offer or the Merger, or make materially more costly the making of the Offer; • seeking to impose material limitations on the ability of the Purchaser, or render the Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares pursuant to the Offer, or the Merger, or seeking to require divestiture of such Shares or any material assets of Cytyc, the Purchaser or Adeza; • seeking to prohibit or impose material limitations on the ownership or operation by Cytyc or its subsidiaries of all or any portion of businesses or assets of Adeza, Cytyc or its subsidiaries as a result of or in connection with the transactions contemplated by the Merger Agreement, or to compel Adeza, Cytyc or its subsidiaries to dispose of, license or hold separate any material portion of the businesses or assets of Adeza, Cytyc or its subsidiaries as a result of or in connection with the transactions contemplated by the Merger Agreement; • seeking to impose material limitations on the ability of Cytyc or the Purchaser effectively to exercise full rights of ownership of the Shares, including the right to vote the Shares purchased on all matters properly presented to Adeza’s stockholders; or • which otherwise would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; • there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated or which is deemed applicable pursuant to an authoritative interpretation by or on behalf of a government entity to the Offer, the Merger or any other transaction contemplated by the Merger Agreement, or any other action shall be taken by any governmental entity, other than the application to the Offer or the Merger of applicable waiting periods under HSR Act or similar waiting periods with respect to the Required Approvals, that: • is reasonably likely, individually or in the aggregate, to result, directly or indirectly, in any of the consequences referred to in any of the five sub-paragraphs of the immediately preceding sub-bullet point; or • has the effect of making the Offer, the Merger or any other transaction contemplated by the Merger Agreement illegal or which has the effect of prohibiting or otherwise preventing or delaying the consummation of any of the transactions contemplated by the Merger Agreement; • any of the representations and warranties of Adeza contained in Section 3.3 of the Merger Agreement (relating to authorization, validity and corporate action regarding the Merger Sub’s obligation to pay for Agreement) or return tendered Shares promptly after termination or withdrawal Section 3.4 of the Offer)Merger Agreement (relating to Adeza board approvals) shall not be obligated true and correct in all material respects, as of the date of the Merger Agreement and as of the Expiration Date, with the same force and effect as if made on and as of such date, except for representations and warranties that relate to pay for a specific date or time, which need only be true and correct in all and in all material respects as of such specific date or time; • except as has not had and would not reasonably be expected to have, individually or in the aggregate with all other failures to be true or correct, a Company Material Adverse Effect, the representations and warranties of Adeza contained in this Agreement, other than representations and warranties referenced Table of Contents in the immediately preceding and immediately following bullet point, shall not be true and correct in all respects (without giving effect to any Shares tendered pursuant references to any Company Material Adverse Effect or materiality qualifications and other qualifications based upon the concept of materiality or similar phrases contained therein and without giving effect to any modifications or updates to the disclosure schedules delivered by Adeza in connection with the Merger Agreement) as of the date of the Merger Agreement and as of the Expiration Date with the same force and effect as if made on and as of such date, except for representations and warranties that relate to a specific date or time, which need only be true and correct (without giving effect to any references to any Company Material Adverse Effect or materiality qualifications and other qualifications based upon the concept of materiality or similar phrases contained therein and without giving effect to any modifications or updates to the disclosure schedules delivered by Adeza in connection with the Merger Agreement) as of such specific date or time; • any of the representations and warranties of Adeza contained in Section 3.2 of the Merger Agreement (relating to its capitalization) shall not be true and correct in all material respects, each as of the date hereof and as of the expiration date of the Offer with the same force and effect as if made on and as of such date, except for representations and warranties that relate to a specific date or time (which need only be true and correct in all material respects as of such date or time), provided that the standard “true and correct in all material respects” shall not theretofore accepted for payment be met if the cost of the Offer to Purchaser is increased by an amount in excess of $2 million; • since the date of the Merger Agreement, any facts, changes, events, developments or paid for) ifcircumstances have occurred, upon arisen or come into existence or become known to Adeza, Cytyc or the Purchaser, which is or are continuing and which has had or would reasonably be expected to have, individually or in the aggregate with all other such facts, changes, events, developments or circumstances, a Company Material Adverse Effect; • Adeza shall have breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement prior to the expiration of the Offer, or, in the case of Section 6.1 of the Merger Agreement (relating to notification of potential breaches or failures of conditions to the Offer (as it may or the Merger), Adeza shall have intentionally breached or failed in any material respect to perform or comply with such section, and such breach or failure shall not have been extended pursuant cured; • The Purchaser shall have failed to Section 1.1(a) receive a certificate of Adeza, executed by Adeza’s Chief Executive Officer and Chief Financial Officer, dated as of the Agreement) and before acceptance of such Shares for paymentExpiration Date, any to the effect that the certain of the following conditions exists set forth above have not occurred; • there shall have occurred, and is continuingcontinued to exist, (i) any general suspension of, or limitation on prices for, trading in securities on the New York Stock Exchange or NASDAQ Global Select Market or (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States; or • the Merger Agreement shall have been terminated in accordance with its terms. The foregoing conditions are for the sole benefit of Cytyc and the Purchaser, may be asserted by Cytyc or the Purchaser regardless of the circumstances giving rise to such condition, and may be waived by Cytyc or the Purchaser in whole or in part at any time and from time to time and in the reasonable discretion of Cytyc or the Purchaser, subject in each case to the provisions of the Merger Agreement. The foregoing conditions shall be in addition to, and not a limitation of the rights of Cytyc and the Purchaser to extend, terminate and/or modify the Offer pursuant to the provisions of the Merger Agreement. Any reference in the Offer to Purchase to a condition (other than or requirement being satisfied shall be deemed met if such condition or requirement is waived. The failure by Cytyc or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such circumstances directly caused by right and, each such right shall be deemed an ongoing right that may be asserted at any breach by Parent or Merger Sub of any of their representations, warranties, covenants, agreements or obligations under the Agreement):time and from time to time.

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 Offer, but subject to compliance with Offer or 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 Agreement to the terms and conditions of the Agreementcontrary, Merger Sub Purchaser shall not be obligated required to accept for payment, and payment or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to Act) pay for or return tendered Shares promptly after termination or withdrawal of for, and may delay the Offer)) shall not be obligated to pay for any Shares tendered pursuant to the Offer (and not theretofore accepted acceptance for payment or paid for) unless, prior to the expiration of the Offer (as it may have been extended pursuant to Section 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable such rules and regulations of regulations) the SECpayment for, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for any tendered Shares, and may amend or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any Shares tendered pursuant to terminate the Offer (and not theretofore accepted for payment as permitted by the Merger Agreement, if the Minimum Condition or paid for) if, upon the expiration of the Offer (as it may have been extended pursuant to Section 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of the following additional conditions exists and is continuingshall not be satisfied or waived at 12:00 midnight, regardless Eastern Time, on the scheduled Expiration Date of the circumstances giving rise 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 condition 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) of the Merger Agreement (which relate to, among other things, the proper authorization and approval by the Company Board to enter into the Merger Agreement and consummate the transactions contemplated by the Merger Agreement pursuant to Section 251(h) of the DGCL) 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 circumstances directly caused by any breach by Parent 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 Representations (other than the representations and warranties contained in Section 5.02(c) of the Merger Sub Agreement) which relate to, among other things, the due incorporation and valid existence of any the Company, the Company’s corporate power and authority to enter into the Merger Agreement, the execution and performance of their representationsthe Merger Agreement not contravening the Company’s certificate of incorporation or bylaws, warrantiesthe capitalization of the Company, covenants, agreements or obligations applicability of the safe harbor provisions of Rule 14d-10 under the Agreement):Exchange Act to the compensation arrangements between the Company and its directors, officers and employees, finders’ fees, receipt of a fairness opinion from the Company’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);

Conditions of the Offer. Notwithstanding any other provision term of the Offer, but subject to compliance with Offer or the terms and conditions of the Merger 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 Purchaser will not be obligated required to, and Parent will not be required to cause Purchaser to, irrevocably accept for paymentpurchase or, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s Purchaser's obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to such rules and regulations, the payment for any tendered Shares (i) shall if the Merger Agreement has been validly terminated in accordance with the terms of the Merger Agreement or (ii) at any scheduled Offer Expiration Time, if the Minimum Tender Condition or the Termination Condition has not been satisfied. Furthermore, Purchaser will not be obligated required to, and Parent will not be required to cause Purchaser to, irrevocably accept for purchase or, subject as aforesaid, to pay for any Shares tendered pursuant to not theretofore irrevocably accepted for purchase or paid for if, at 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 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such 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 (other than any such circumstances directly caused by any breach by Parent or Merger Sub the Offer Expiration Time; Table of any of their representations, warranties, covenants, agreements or obligations under the Agreement):Contents •

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 Offer, but subject to compliance with Offer or 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 Agreement to the terms and conditions of the Agreementcontrary, Merger Sub Purchaser shall not be obligated required to accept for payment, and payment or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and may delay the acceptance for payment 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 (relating to Merger Sub’s obligation to pay for other than any such representation or return tendered Shares promptly after termination or withdrawal 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 OfferSpecified Company 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 obligated instituted, pending or overtly threatened any Proceeding (which is defined to pay 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 any 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 1.1(aor 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 Shares thatits Subsidiaries, considered together with all other Shares (if any) beneficially owned by taken as a whole, or of Parent and its affiliatesAffiliates, represent one share 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 outstanding 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 impose or confirm material limitations on the ability 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 (on a fully diluted basiswhich 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). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub ; • there shall not be required in effect any Order that is reasonably likely to accept for paymentresult, and (subject to any applicable rules and regulations of the SECdirectly or indirectly, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such 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 (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 sub-bullet points included in the Agreement):immediately preceding bullet point;

Conditions of the Offer. Notwithstanding The obligation of Merger Sub to (and of Parent to cause Merger Sub to) accept for payment, and pay for, any other provision of and all Shares validly tendered (and not validly withdrawn) pursuant to the Offer, but Offer shall be subject to compliance with the terms and conditions of the this Agreement, including the satisfaction (or to the extent waivable, the waiver by Parent or Merger Sub in their sole discretion) of the conditions set forth in Annex I (as they may be amended from time to time in accordance with this Agreement, collectively, the “Offer Conditions”) and in addition not to any other conditions. Merger Sub expressly reserves the right, at any time, to (and not in limitation ofi) the rights and obligations of Merger Sub to extend and/or amend increase the Offer pursuant Price, (ii) waive any Offer Condition or (iii) make any other changes to the terms and conditions of the Offer not inconsistent with the terms of this Agreement; provided, however, that without the prior written consent of the Company: (A) the Minimum Condition may not be amended or waived, (B) Merger Sub shall not be obligated to accept for payment, decrease the Offer Price and (subject C) no change may be made to any applicable rules and regulations the Offer that (1) changes the form of consideration to be delivered by Merger Sub pursuant to the Offer, (2) reduces the number of Class A Shares to be purchased in the Offer to less than that required to satisfy the Minimum Condition, (3) imposes conditions or requirements to the Offer in addition to the Offer Conditions, (4) except as provided in this Section 1.1, terminates the Offer or accelerates, extends or otherwise changes the Expiration Date of the SECOffer, including (5) otherwise amends or modifies any of the other terms of the Offer in a manner that adversely affects any holder of Class A Shares or that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Offer or prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Offer, the Merger or the other Transactions, or (6) provide any “subsequent offering period” within the meaning of Rule 14e-1(c) 14d-11 promulgated under the Exchange Act Act. The Offer may not be withdrawn prior to the Expiration Date (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination any rescheduled or withdrawal extended Expiration Date) of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together unless this Agreement is terminated in accordance with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender ConditionArticle VIII.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such 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):

Conditions of the Offer. Notwithstanding any other provision 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 Offer, but subject Schedule TO and is incorporated herein by reference. The obligation of Purchaser to compliance with the terms accept for payment and conditions of the Agreement, and in addition to pay for Shares validly tendered (and not in limitation ofwithdrawn) the rights and obligations of Merger Sub to extend and/or amend the Offer pursuant to the terms and conditions Offer is subject to the satisfaction of the Agreement, Merger Sub shall Minimum Condition and the conditions below. Purchaser will not be obligated required to accept for paymentpayment or, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act (relating to Merger Sub’s Purchaser's obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer) (the "Payment Rules")) shall not be obligated , to pay for any Shares tendered pursuant to the Offer and may terminate or amend the Offer, in accordance with and subject to the terms of the Merger Agreement, unless, at the then effective Expiration Date (i) the Minimum Condition and (ii) all waiting periods (including all extensions thereof) under the HSR Act applicable to the purchase of Shares pursuant to the Offer will have expired or been terminated (the "Antitrust Condition"). Furthermore, notwithstanding any other term of the Offer or the Merger Agreement, Purchaser will not be required to accept for payment or, subject to the Payment Rules, to pay for any Shares not theretofore accepted for payment or paid for) unless, prior and may terminate or amend the Offer, in accordance with and subject to the expiration terms of the Offer (as it may have been extended pursuant to Section 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) Agreement if, upon at the expiration of the Offer (as it may have been extended pursuant to Section 1.1(a) of the Agreement) and before acceptance of such Shares for paymentthen effective Expiration Date, any of the following conditions exists and exists: • any Judgment issued by a court of competent jurisdiction or by a governmental authority, or any law or regulation or other legal restraint or prohibition, will be in effect that would make the Offer or the Merger illegal or otherwise prevent the consummation thereof; • since the date of the Merger Agreement, there shall have occurred any Company Material Adverse Effect that is continuing, regardless or there shall have occurred any Effect that would reasonably be expected to result in a Company Material Adverse Effect; • the representations and warranties of TubeMogul set forth in Section 3.2(a), Section 3.2(b) (the first sentence only) and Section 3.2(c) of the circumstances giving rise Merger Agreement (the "Capitalization Representations") (which relate to, among other things, the outstanding capitalization of TubeMogul) (x) will not have been true and correct as of the date of the Merger Agreement or will not be true and correct as of the Expiration Date as if made on and as of the Expiration Date (except, in each case, for representations and warranties that relate to a specific date which failure to be true and correct would be as of such condition specific date), and (y) the failure to be so true and correct, individually or in the aggregate with all other failures of the Capitalization Representations to be so true and correct, has resulted in or would reasonably be expected to result in additional cost, expense or liability to TubeMogul, Adobe and their affiliates of more than $5,000,000 in the aggregate; • the representations and warranties of TubeMogul set forth in clause "(y)" of the last sentence of Section 3.3(b), Section 3.3(f) and Section 3.6(a) of the Merger Agreement (the "Specified Representations") (which relate to, among other things, the proper authorization by the TubeMogul Board to exempt the transactions contemplated by the Merger Agreement from the restrictions in Section 203 of the DGCL, the applicability of the safe harbor provisions of Rule 14d-10 under the Exchange Act to the compensation arrangements between TubeMogul and its directors, officers and employees, and the absence of a Company Material Adverse Effect since June 30, 2016 and the date of the Merger Agreement) will not have been true and correct as of the date of the Merger Agreement or will not be true and correct as of the Expiration Date as if made on and as of the Expiration Date (except, in each case, for representations and warranties that relate to a specific date which failure to be true and correct would be as of such specific date); • the representations and warranties of TubeMogul set forth in Section 3.1, Section 3.2(d), Section 3.3(a), Section 3.3(b) (other than clause "(y)" of the last sentence thereof), Section 3.3(e), Section 3.9 and Section 3.21 of the Merger Agreement (collectively, the "Fundamental Representations") (which relate to, among other things, corporate organization, no shareholder rights plan, TubeMogul's corporate power and authority to enter into the Merger Agreement, the proper authorization and approval by the TubeMogul Board to enter into the Merger Agreement and consummate the transactions contemplated by the Merger Agreement pursuant to Section 251(h) of the DGCL, no vote of the TubeMogul stockholders is necessary to consummate the Merger, TubeMogul's employee benefit plans and broker's or finder's fees) will not have been true and correct in all material respect as of the date of the Merger Agreement or will not be true and correct in all material respects as of the Expiration Date as if made on and as of the Expiration Date, except for representations and warranties in the Fundamental Representations that address matters on as of a specific date or time (which failure to be true and correct would be as of such date or time), in each case, determined without giving effect to any limitation as to "materiality" or "Company Material Adverse Effect" limiting the scope of such representations and warranties; • the representations and warranties of TubeMogul set forth in the Merger Agreement (other than a Capitalization Representation, a Specified Representation or a Fundamental Representation) will not have been true and correct as of the date of the Merger Agreement or will not be true and correct as of the Expiration Date as if made on and as of the Expiration Date, except for such representations and warranties that address matters only as of a specific date or time (which failure to be true and correct would be as of such date or time), in each case determined without giving effect to any limitation as to "materiality" or "Company Material Adverse Effect" limiting the scope of such representations and warranties and disregarding such failures to be true and correct that, individually or in the aggregate, have not had and would not reasonably be expected to have a Company Material Adverse Effect; • TubeMogul shall have failed to perform in any material respect any obligation, or failed to comply in any material respect with any agreement or covenant, of TubeMogul to be performed or complied with by it under the Merger Agreement prior to such time; • Adobe and Purchaser shall have not received a certificate executed by TubeMogul's Chief Executive Officer confirming on behalf of TubeMogul that the conditions set forth in clauses (b), (c) and (d) of Exhibit B of the Merger Agreement (which relate to, among other things, no Company Material Adverse Effect, accuracy of TubeMogul's representations and warranties and compliance with TubeMogul's covenants) have been duly satisfied; or • the Merger Agreement shall have been terminated in accordance with its terms; which, in the sole and reasonable judgment of Purchaser or Adobe, in any such circumstances directly caused case, makes it inadvisable to proceed with such acceptance for payment or payment. The foregoing conditions are for the sole benefit of Adobe and Purchaser and (except for the Minimum Condition) may be waived by Adobe and Purchaser, in whole or in part at any breach time from time to time, in the sole discretion of Adobe and Purchaser. The failure by Parent Adobe, Purchaser or Merger Sub any other affiliate of Adobe at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right, the waiver of their representations, warranties, covenants, agreements or obligations under the Agreement):any such right with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right that may be asserted at any time and from time to time.

Conditions of the Offer. Notwithstanding any other provision provisions of the Offer, but subject to compliance with the terms and conditions of the Agreement, Offer and in addition to (and not in limitation of) the Purchaser’s rights and obligations of Merger Sub to extend and/or extend, amend or terminate the Offer pursuant to in accordance with the terms and conditions provisions of the AgreementMerger Agreement and applicable law, Merger Sub shall the Purchaser will not be obligated required to accept for paymentpayment or, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to Act, pay for any Shares validly tendered pursuant Shares, and may delay the acceptance for payment of or, subject to the Offer (and not theretofore accepted for payment or paid for) unless, prior to the expiration provisions of the Offer (as it may have been extended pursuant to Section 1.1(a) of the Agreement), there shall have been tendered Merger Agreement and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return Act, the payment for, any validly tendered Shares promptly after termination if: • the Minimum Condition has not been satisfied at the Expiration Date; • at the Expiration Date there shall be pending or withdrawal threatened in writing any suit, action or proceeding by any governmental entity of competent jurisdiction against IDEX, the Offer)) shall not be obligated to pay for Purchaser, Microfluidics or its subsidiary or otherwise in connection with the Offer or the Merger: • challenging the acquisition by the Purchaser of any Shares tendered pursuant to the Offer (and not theretofore accepted or seeking to make illegal, restrain or prohibit the making or consummation of the Offer or the Merger; • seeking to prohibit or impose material limitations on the ability of IDEX or the Purchaser, or to render IDEX or the Purchaser unable, to accept for payment payment, pay for or paid for) ifpurchase any of the Shares pursuant to the Offer, the Top-Up Option or the Merger, or seeking to require divestiture of any or all Shares purchased pursuant to the Offer, the Top-Up Option or the Merger; • seeking to prohibit or impose material limitations on the ownership or operation by IDEX, Microfluidics or any of their respective subsidiaries, of all or any portion of the businesses or assets of IDEX, Microfluidics or any of their respective subsidiaries as a result of or in connection with the Offer, the Merger or the other transactions contemplated by the Merger Agreement, or otherwise seeking to compel IDEX, Microfluidics or any of their respective subsidiaries to divest, dispose of, license or hold separate any portion of the businesses or assets of IDEX, Microfluidics or any of their respective subsidiaries as a result of or in connection with the Offer, the Merger or the other transactions contemplated by the Merger Agreement; 55 Table of Contents • seeking to prohibit or impose material limitations on the ability of IDEX or the Purchaser effectively to acquire, hold or exercise full rights of ownership of the Shares to be purchased pursuant to the Offer, upon the expiration exercise of the Offer (as it may have been extended Top-Up Option or otherwise in the Merger, including the right to vote the Shares purchased on all matters properly presented to Microfluidics’ stockholders; or • which otherwise would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; • at the Expiration Date, there shall be any statute, rule, regulation, judgment, order or injunction enacted, entered, enforced, promulgated or which is deemed applicable pursuant to an authoritative interpretation by or on behalf of a governmental entity to the Offer, the Merger or any other transactions contemplated by the Merger Agreement, or any other action shall be taken by any governmental entity, that: • is, in the reasonable judgment of IDEX and the Purchaser, likely, individually or in the aggregate, to result, directly or indirectly, in any of the consequences referred to in any of the five sub-paragraphs of the immediately preceding bullet-point; or • has the effect of making the Offer, the Merger or any other transactions contemplated by the Merger Agreement illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer, the Merger or any other transactions contemplated by the Merger Agreement; • the representations and warranties of Microfluidics contained in Section 1.1(a3.2 (relating to its capitalization), Section 3.3 (relating to authorization, validity and corporate action regarding the Merger Agreement) or 3.7 (relating to SEC filings) of the Agreement) Merger Agreement or the representations and before acceptance warranties of Microfluidics contained in the Merger Agreement subject to any qualification as to “materiality,” “Company Material Adverse Effect” or other qualification based upon the concept of materiality or similar phrase shall not be true and correct in all respects, as of the date of the Merger Agreement or as of the Expiration Date, with the same force and effect as if made on and as of such Shares date, except for paymentrepresentations and warranties that relate to a specific date or time, which need only be true and correct in all respects as of such specific date or time; • the other representations and warranties of Microfluidics contained in the Merger Agreement shall not be true and correct in all material respects, as of the date of the Merger Agreement or as of the Expiration Date, with the same force and effect as if made on and as of such date, except for representations and warranties that relate to a specific date or time, which need only be true and correct in all material respects as of such specific date or time; • Microfluidics shall have breached or failed, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement on or prior to the Expiration Date, and such breach or failure shall not have been cured; • since the date of the Merger Agreement, any facts, changes, events, developments or circumstances have occurred, arisen or come into existence or become known to Microfluidics, IDEX or the Purchaser, or any worsening thereof and which has had or would reasonably be expected to have, individually or in the aggregate with all other such facts, changes, events, developments or circumstances, a Company Material Adverse Effect; • the Purchaser shall have failed to receive a certificate from Microfluidics, executed by Microfluidics’ Chief Executive Officer and Chief Accounting Officer, dated as of the following Expiration Date, to the effect that the conditions exists set forth in the sixth, seventh and eighth bullet points above have not occurred as of the Expiration Date; • the Agreement Concerning Debenture shall have failed to remain in full force and effect, GSP or the other parties thereto (other than IDEX and the Purchaser) shall have breached or threatened to breach any material agreement or covenant to be performed or complied with by it thereunder, or in the reasonable judgment of IDEX and the Purchaser, the closing of the transactions contemplated by the Agreement Concerning Debenture is continuingnot likely to occur at the time the Purchaser accepts for payment 56 Table of Contents the Shares tendered in the Offer, in each case other than as a result of any breach or threatened breach thereof by IDEX or the Purchaser; • the Merger Agreement shall have been terminated in accordance with its terms; or • the Purchaser shall have failed to receive, by at least three business days prior to the Expiration Date, a certificate from Microfluidics, executed by Microfluidics’ Chief Executive Officer and Chief Accounting Officer, setting forth their best estimate of the aggregate amount of Microfluidics’ Expenses as of the Expiration Date. The foregoing conditions are for the sole benefit of IDEX and the Purchaser, and may be asserted by IDEX or the Purchaser regardless of the circumstances giving rise to any such conditions, and may be waived by IDEX or the Purchaser in whole or in part at any time and from time to time and in their sole discretion, in each case subject to the provisions of the Merger Agreement. Any reference in the Offer to Purchase to a condition or requirement being satisfied shall be deemed to be satisfied if such condition (other than or requirement is waived. The foregoing conditions shall be in addition to, and not a limitation of, the rights of IDEX and the Purchaser to extend, terminate, amend and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement. The failure by IDEX or the Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such circumstances directly caused by right and each such right shall be deemed an ongoing right that may be asserted at any breach by Parent or Merger Sub of any of their representations, warranties, covenants, agreements or obligations under the Agreement):time and from time to time.

Conditions of the Offer. Notwithstanding any other provision of the Offer, but subject to compliance with Offer or the terms and conditions of the Merger 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 Purchaser will not be obligated required to accept for paymentpayment or, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated Act, to pay for any Shares validly tendered pursuant Shares, and may, subject to the Offer (and not theretofore accepted for payment terms of the Merger Agreement, terminate or paid for) unlessamend the Offer, if, immediately prior to the expiration Expiration Date: • the applicable waiting periods under the HSR Act, the Japanese Foreign Exchange Law and any other non-U.S. antitrust or competition-related laws have not expired or been terminated, or any consent required under such non-U.S. antitrust or competition-related law or the Japanese Foreign Exchange Law, as applicable, has not been obtained or is not in full force and effect; • the Minimum Condition has not been satisfied; or • any of the Offer following conditions exist: • any law has been enacted by any governmental body, or any order, judgment, decree or injunction has been issued or granted by a governmental body that (as it may have been extended pursuant to Section 1.1(ai) restrains, enjoins, or otherwise prohibits the consummation of any of the transactions contemplated by the Merger Agreement), there shall have been tendered including the Offer and not validly withdrawn Shares thatthe Merger, considered together with all other Shares or (if anyii) beneficially owned by Parent and its affiliateshas, represent one share more than 50% or would reasonably be expected to have, the effect of making the consummation of the outstanding Shares transactions contemplated by the Agreement, including the Offer and the Merger, illegal in any jurisdiction; • there is instituted or pending any legal proceeding brought by a governmental body (i) seeking to restrain, enjoin or otherwise prohibit the consummation of the Offer, the Merger or the other transactions contemplated by the Merger Agreement or the Tender Agreements, (ii) seeking to impose material limitations on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermoreability of Purchaser, Merger Sub shall not be required or render Purchaser unable, to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination purchase some or withdrawal all of the Offer)) shall not be obligated to pay for any Shares tendered pursuant to the Offer or the Merger, (and not theretofore accepted for payment iii) seeking to impose any limitations on the ownership or paid foroperation by ABC-MART, Purchaser, (or any of their respective subsidiaries) if, upon the expiration of all or any portion of the Offer (as it may have been extended pursuant businesses, technologies or assets of ABC-MART, Purchaser, LaCrosse or any of their respective affiliates, or to Section 1.1(a) compel ABC-MART or Purchaser to dispose of or hold separate all or any portion of the Agreementbusinesses, Table of Contents technologies or assets of ABC-MART, Purchaser, LaCrosse or any of their respective affiliates, (iv) and before acceptance seeking to impose limitations on the ability of such ABC-MART or Purchaser effectively to exercise full rights of ownership of the Shares, including the right to vote the Shares for paymentpurchased by it on all matters properly presented to LaCrosse’s shareholders, or (v) that if adversely determined, would reasonably be expected to have a material adverse effect on LaCrosse; • any action has been taken or overtly threatened to be taken by a governmental body that seeks any of the following conditions exists and is continuing, regardless of consequences referred to in the circumstances giving rise to such 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):paragraph immediately above;

Conditions of the Offer. Notwithstanding any other provision provisions of the Offer, but subject to compliance with the terms and conditions of the Agreement, Offer and in addition to (and not in limitation of) the Purchaser’s rights and obligations of Merger Sub to extend and/or extend, amend or terminate the Offer pursuant to in accordance with the terms and conditions provisions of the AgreementMerger Agreement and applicable Law, Merger Sub the Purchaser shall not be obligated required to accept for paymentpayment or, and (subject to any applicable rules and regulations of the SEC, SEC including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to Act, pay for any validly tendered Shares and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any validly tendered Shares, if (a) the Minimum Condition shall not have been satisfied at the Expiration Date, (b) the HSR Condition shall not have been satisfied at or prior to the Expiration Date, (c) any Other Required Governmental Approvals shall not have been obtained or any waiting period (or extension thereof) or mandated filing shall not have lapsed or been made at or prior to the Expiration Date or (d) any of the following events, conditions, state of facts or developments exists or has occurred and is continuing at the Expiration Date: • there shall be pending any action by any U.S. governmental entity or any Specified Governmental Entity (A) against Parent, the Purchaser, the Company or any subsidiary of the Company or (B) otherwise in connection with the Offer or the Merger, in either case: • challenging the acquisition by Parent or the Purchaser of any Shares pursuant to the Offer (and not theretofore accepted for payment or paid for) unlessseeking to make illegal, prior to restrain or prohibit the expiration making or consummation of the Offer (as it may have been extended pursuant or the Merger; • seeking to Section 1.1(a) prohibit or impose material limitations on the ability of Parent or the Agreement)Purchaser, there shall have been tendered and not validly withdrawn Shares thator otherwise to render Parent or the Purchaser unable, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination purchase any or withdrawal all of the Offer)) shall not be obligated to pay for any Shares tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) ifthe Merger, upon the expiration or seeking to require divestiture of any or all of the Offer (as it may have been extended Shares to be purchased pursuant to Section 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of Offer or in the following conditions exists and is continuing, regardless of the circumstances giving rise to such 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):Merger;

Conditions of the Offer. Notwithstanding any other provision provisions of the Offer, but subject to compliance with the terms and conditions of set forth in the Merger Agreement, and in addition to (and not in limitation of) the Purchaser’s rights and obligations of Merger Sub to extend and/or or amend the Offer pursuant to in accordance with the terms and conditions provisions of the Agreement, Merger Sub shall not be obligated to accept for payment, Agreement and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act (relating Act, Purchaser shall not be required to Merger Sub’s obligation accept for payment or pay for, and may delay the acceptance for payment of or, subject to pay for or return the restrictions referred to above, the payment for, any validly tendered Shares promptly after termination or withdrawal that are not properly withdrawn if: • such Shares are not tendered in the Offer such that, assuming consummation of the Offer), Getinge and Purchaser would not satisfy the Minimum Condition; • any waiting period under the HSR Act or any similar foreign competition laws applicable to the transactions contemplated by the Merger Agreement does not expire or is not terminated prior to the termination or expiration of the Offer at or prior to any then scheduled Expiration Date; • any suit, action or proceeding by any governmental entity of competent jurisdiction is pending against Getinge, Purchaser, Datascope or any subsidiary of Datascope (i) shall not be obligated to pay for challenging the acquisition by Purchaser or Getinge of any Shares tendered pursuant to the Offer or seeking to restrain or prohibit the making or consummation of the Offer or the Merger, (ii) seeking to impose material limitations on the ability of Purchaser or Getinge, or render Purchaser or Getinge unable, to accept for payment, pay for or 29 Table of Contents purchase any or all of the Shares pursuant to the Offer or the Merger or (iii) which otherwise that would impose a Materially Burdensome Condition; • any statute, rule, regulation, judgment, order or injunction is enacted, entered, enforced, promulgated or which is deemed applicable pursuant to an authoritative interpretation by or on behalf of a government entity to the Offer, the Merger or any other transaction contemplated by the Merger Agreement, or any other action is taken by any Governmental Entity, other than the application to the Offer or the Merger of applicable waiting periods under the HSR Act or similar waiting periods with respect to the any similar foreign competition laws or regulation, that (x) is reasonably likely to result, directly or indirectly, in any of the consequences referred to in the foregoing conditions, or (y) has the effect of making such transactions illegal or which has the effect of prohibiting or otherwise preventing the consummation of any of the transactions contemplated by the Merger Agreement; • any declaration of a banking moratorium or any suspension of payments in respect of banks in the United States or limitation or proposed limitation by any foreign or United States governmental authority or agency has a material adverse effect generally on the extension of credit by banks or other financial institutions; • any representation or warranty of Datascope as to its capitalization, its authority to execute the Merger Agreement, or the enforceability of the Merger Agreement is not true and correct (except for any de minimis inaccuracy with regard to capitalization), and any other representation and warranty of Datascope set forth in the Merger Agreement that is qualified by reference to a Material Adverse Effect is not theretofore accepted true and correct as of the date provided in the Merger Agreement or (C) any other representation and warranty of Datascope set forth in the Merger Agreement that is not so qualified shall not be true and correct as of the date set forth in the Merger Agreement), other than in the case of clause (C) for payment such failures to be true and correct that, individually or paid forin the aggregate, have not had and would reasonably be expected to have a Material Adverse Effect; provided that for purposes of determining the satisfaction of clause (C) unlessof this condition, the representations and warranties of Datascope that are not qualified by reference to a Material Adverse Effect shall be deemed not qualified by any references therein to materiality generally; • any fact(s), change(s), event(s), development(s) or circumstance(s) occur, arise or come into existence or become known to Datascope, Getinge or Purchaser following the date of the Merger Agreement which is continuing and which has had or would have a Material Adverse Effect; • Datascope breaches or fails, in any material respect, to perform or to comply with any agreement or covenant to be performed or complied with by it under the Merger Agreement prior to the expiration of the Offer (as it may and such breach or failure shall not have been extended pursuant cured; • Xxxxxxxxx fails to Section 1.1(a) receive a certificate of Datascope, executed by the Chief Executive Officer and the Chief Financial Officer of Datascope, dated as of the Agreement)scheduled Expiration Date, there to the effect that the conditions set forth in two preceding paragraphs have not occurred; or • the Merger Agreement shall have been tendered and not validly withdrawn Shares that, considered together terminated in accordance with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis)terms. The preceding condition is referred to as foregoing conditions are for the “Minimum Tender Condition.” Furthermoresole benefit of Getinge and Purchaser, Merger Sub shall not may be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for asserted by Getinge or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of the following conditions exists and is continuing, Purchaser regardless of the circumstances giving rise to such condition (other than condition, and may be waived by Getinge or Purchaser in whole or in part at any time and from time to time and in the sole discretion of Getinge or Purchaser, subject in each case to the terms of the Merger Agreement. The failure by Getinge or Purchaser at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such circumstances directly right and, each such right shall be deemed an ongoing right that may be asserted at any time and from time to time. The Merger Agreement defines a “Material Adverse Effect” as any change, any fact, circumstance, event, change, effect or occurrence that (i) has or would be reasonably likely to have a material adverse effect on the assets, business, results of operations or financial condition of Datascope and its subsidiaries taken as a whole or (ii) that would be reasonably likely to prevent or materially delay or materially impair the ability of Datascope to consummate the Merger or the other transactions contemplated hereby; provided, however, that 30 Table of Contents none of the following shall be deemed either alone or in combination with any of the following to constitute a Material Adverse Effect: • any changes in, or conditions, events or occurrences that result in a change to, the industry in which Datascope operates or conducts its business, the United States economy or capital, financial or securities markets generally, except those changes that are specifically related to, or that have a materially disproportionate effect upon, Datascope and its subsidiaries, taken as a whole, as compared to other similarly situated companies; • any changes resulting from or arising out of actions taken pursuant (and/or required by) the Merger Agreement or at the request of Getinge, or the failure to take any actions due to restrictions set forth in the Merger Agreement; • any changes in the price or trading volume of Datascope’s stock on NASDAQ (but excluding any fact, circumstance, event, change, effect or occurrence that caused or contributed to such change in market price or trading volume); • any adverse effect resulting from any change in GAAP or any applicable United States or foreign, federal, state or local laws, statutes, ordinances, rules, regulations or agency requirements of any governmental entity, or regulatory requirements, in each case, proposed, adopted or enacted after the date hereof, or the interpretation or enforcement thereof; • any changes, developments, events, effects, conditions, occurrences, actions or omissions (including the loss or departure of employees or any termination, reduction, loss, or similar negative development in Datascope’s relationship with its customers, suppliers, vendors or other business partners or employees or any cancellation of or delay in customer orders), in each case resulting from the announcement or pendency of the Merger Agreement, the Offer or the Merger or the proposal thereof; • the failure of Datascope to meet internal or analysts’ expectations or projections (but excluding any fact, circumstance, event, change, effect or occurrence that caused or contributed to such failure to meet internal or analysts’ expectations or projections); and • any legal proceedings made or brought by any breach by Parent of the current or former stockholders of Datascope (on their own behalf or on behalf of Datascope), or otherwise under the DGCL, arising out of or related to the Merger Sub of Agreement and any of their representations, warranties, covenants, agreements or obligations under the Agreement):transactions contemplated hereby.

Conditions of the Offer. Notwithstanding For purposes of this Section 15, capitalized terms used in this Section 15 and not defined in this Section 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 Offer, but subject to compliance with Offer or 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 Agreement to the terms and conditions of the Agreementcontrary, Merger Sub Purchaser shall not be obligated required to accept for payment, and payment or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act) pay for, and may delay the acceptance for payment 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 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 (if permitted) waived at 12:00 midnight, Eastern Time, at the end of the day on the scheduled Expiration Date of the Offer: • no Specified Governmental Authority in respect of (i) any Foreign Competition Law in applicable jurisdictions outside the United States, (ii) the HSR Act, or (iii) any Foreign Direct Investment Law in applicable jurisdictions outside the United States 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 or regulation shall have been adopted by any such Specified Governmental Authority in respect of (i) any Foreign Competition Law in applicable jurisdictions outside the United States, (ii) the HSR Act, or (iii) any Foreign Direct Investment Law in applicable jurisdictions outside the United States 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 5.18(f) of the Merger Agreement (which relate to, among other things, the election by the Cerner 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 (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)compensation arrangements between Cerner and its directors, officers and employees) shall not be obligated to pay for any Shares tendered pursuant to true in all respects when made and on the Offer (Expiration Date as if made on 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 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such condition date (other than any such circumstances directly caused by 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 Representations (other than the representations and warranties contained in Section 5.02(c) and Section 5.18(f) of the Merger Agreement) (which relate to, among other things, the due incorporation and valid existence of Cerner, Cerner’s corporate power and authority to enter into the Merger Agreement, the execution and performance of the Merger Agreement not contravening Cerner’s certificate of incorporation or bylaws, the capitalization of Cerner, finders’ fees, receipt of a fairness opinion from Cerner’s financial advisors, 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 on the Expiration Date as if made on and as of such date (other than any breach by Parent 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 Merger Sub “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 Cerner that are not Specified Company Representations), disregarding any materiality or Company Material Adverse Effect qualifications contained therein, shall be true when made and on the Expiration Date as if made on and as of their representationssuch date (other than any Other Company Representations that are made only as of a specified date, warranties, covenants, agreements 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 obligations under the Agreement):aggregate

Conditions of the Offer. Notwithstanding any other provision 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 Offer, but subject Schedule TO and is incorporated herein by reference. The obligation of Purchaser to compliance with the terms accept for payment and conditions of the Agreement, and in addition to pay for Shares validly tendered (and not in limitation ofwithdrawn) the rights and obligations of Merger Sub to extend and/or amend the Offer pursuant to the terms and conditions Offer is subject to the satisfaction of the Agreement, Merger Sub shall Minimum Tender Condition and the conditions below. Purchaser will not be obligated required to accept for paymentpayment or, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act (relating to Merger SubPurchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer) (the “Payment Rules”)) shall not be obligated , to pay for any Shares tendered pursuant to the Offer (and not theretofore accepted may delay the acceptance for payment or paid for) unlessof or, prior to the expiration of the Offer (as it may have been extended pursuant to Section 1.1(a) of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act payment for, any tendered Shares, and (relating subject to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal the provisions of the Offer)Merger Agreement) shall may terminate the Offer and not be obligated to pay accept for payment any Shares tendered pursuant Shares: (i) if the Merger Agreement has been terminated in accordance with Article 8 thereof; or (ii) at any scheduled Expiration Date, if the Minimum Tender Condition has not been satisfied, any waiting period (and any extension thereof) applicable to the Offer (and not theretofore accepted for payment or paid for) if, upon the expiration consummation of the Offer under the HSR Act shall Table of Contents not have expired or been terminated (as it may have been extended pursuant to Section 1.1(athe “Antitrust Condition”) of the Agreement) and before acceptance of such Shares for payment, or any of the following additional conditions exists and is continuingshall not be satisfied or waived by one minute after 11:59 p.m., regardless New York City time, on the Expiration Date: • there shall not be pending any Action by any Governmental Authority of competent jurisdiction that seeks, directly or indirectly, to make illegal, prohibit, materially delay or otherwise restrain the making of the circumstances giving rise Offer, the consummation of the Offer or the Merger or the performance of the Merger Agreement; • no Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Judgment (preliminary or permanent) or Law that has resulted in, or is reasonably likely to result in any of the consequences referred to in the bullet point above; • each of CoLucid’s representations and warranties set forth in Section 3.1(a), Section 3.3(a), Section 3.3(d), Section 3.3(e), Section 3.3(f) and the first sentence of Section 3.6 of the Merger Agreement (which relate to corporate organization, corporate power and authority to enter into the Merger Agreement and consummate the transactions contemplated thereby, the approval of the CoLucid Special Committee and the CoLucid Board to enter into the Merger Agreement and consummate the transactions contemplated thereby, the absence of a shareholder rights plan, the proper authorization of the CoLucid Board to exempt the Offer and the Merger from the restrictions under any takeover law and the absence of a Company Material Adverse Effect since December 31, 2015) shall be true and correct in all respects as of the date of the Merger Agreement and at and as of the Acceptance Time (except to the extent any such condition representation or warranty is made as of a specific date, in which case as of such date); • the representations and warranties set forth in Section 3.2 of the Merger Agreement (which relate to capitalization) shall be true and correct in all respects as of the date of the Merger Agreement and at and as of the Acceptance Time (except to the extent any such representation or warranty is made as of a specific date, in which case as of such date), except for any failures to be so true and correct that are de minimis; • the representations and warranties set forth in the Merger Agreement (other than those representations and warranties set forth in Section 3.1(a), Section 3.2, Section 3.3(a), Section 3.3(d), Section 3.3(e), Section 3.3(f) and the first sentence of Section 3.6 of the Merger Agreement, which are described above) shall be true and correct in all respects as of the date of the Merger Agreement and at and as of the Acceptance Time (except to the extent any such circumstances directly caused by any breach by Parent representation or Merger Sub warranty is made as of a specific date, in which case as of such date), except where the failure of any of their representationssuch representations or warranties to be so true and correct (without giving effect to any limitation as to “materiality” or “Company Material Adverse Effect” set forth in such representations and warranties) has not had, warrantiesand would not reasonably be expected to have, covenantsindividually or in the aggregate, agreements a Company Material Adverse Effect; • CoLucid shall have complied with or performed in all material respects the covenants and obligations required to be complied with or performed by it under the Agreement):Merger Agreement at or prior to the Acceptance Time; • Lilly and Xxxxxxxxx shall have received a certificate executed by CoLucid’s Chief Executive Officer or Chief Financial Officer confirming on behalf of CoLucid that the conditions set forth in clauses (e) and (f) of Annex A to the Merger Agreement shall have been duly satisfied; • the Merger Agreement shall not have been validly terminated in accordance with its terms; and • there shall not have occurred any Company Material Adverse Effect. The foregoing conditions are for the sole benefit of Lilly and Purchaser and (except for the Minimum Tender Condition) may be waived by Xxxxx and Purchaser, in whole or in part at any time from time to time, in the sole discretion of Xxxxx and Purchaser. The failure by Xxxxx, Purchaser or any other affiliate of Lilly at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right, the waiver of any such right with respect to Table of Contents particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right that may be asserted at any time and from time to time.

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 Offer, but subject to compliance with Offer or 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 Agreement to the terms and conditions of the Agreementcontrary, Merger Sub Purchaser shall not be obligated required to accept for payment, and payment or (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act) pay for, and may delay the acceptance for payment or (subject to any such rules and regulations) the payment for, any tendered Shares, and may terminate the Offer at any scheduled Expiration Date or amend or terminate the Offer as permitted by the Merger Agreement, if the Minimum Condition or any of the following additional conditions shall not be satisfied or waived at 12:00 midnight, Eastern Time, on 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) of the Merger Agreement (which relate to, among other things, the proper authorization and approval by the Company Board to enter into the Merger Agreement and consummate the transactions contemplated by the Merger Agreement pursuant to Section 251(h) of the DGCL) 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 Representations (other than the representations and warranties contained in Section 5.02(c) of the Merger Agreement) which relate to, among other things, the due incorporation and valid existence of the Company, the Company’s corporate power and authority to enter into the Merger Agreement, the execution and performance of the Merger Agreement not contravening the Company’s certificate of incorporation or bylaws, the capitalization of the Company, applicability of the safe harbor provisions of Rule 14d-10 under the Exchange Act (relating to Merger Subthe compensation arrangements between the Company and its directors, officers and employees, the Company’s obligation to pay for or return tendered Shares promptly after termination or withdrawal major customers and suppliers, finders’ fees, receipt of a fairness opinion from the Company’s financial advisor, and the exemption of the OfferMerger Agreement 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 the Company that are not contained in Section 5.02(c) 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 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; Table of Contents • Parent shall have received a certificate signed on behalf of the Company by a senior Executive Officer of the Company regarding the accuracy of the representations and warranties of the Company to the above-specified standards, as applicable; • the Company shall have delivered to Parent a certificate of the Company executed by the Secretary of the Company, dated as of the Acceptance Time, certifying: (i) the approval of the Company Board of the Merger Agreement and the transactions contemplated thereby, (ii) the certificate of incorporation and bylaws (or similar governing documents) of the Company 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 the Company is a party, and (iv) any and all Company Board, committee and stockholder resolutions, consents or other actions taken by the Company Board, any committee of the Company Board or the stockholders between the date of the Merger Agreement and the Acceptance Time; • the Company shall have performed in all material respects its obligations under the Merger Agreement, and Parent shall have received a certificate signed on behalf of the Company by a senior Executive Officer of the Company to the foregoing effect; • there shall not be obligated instituted, pending or overtly threatened any Proceeding (which is defined to pay 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 any payment by Purchaser of the Shares tendered pursuant to the Offer or the consummation of the Merger or seeking to obtain material damages in connection therewith; • seeking to restrain or prohibit Parent’s ownership or operation (or that of its Affiliates) of all or any material portion of the business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, 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 business, assets or products of the Company and its Subsidiaries, taken as a whole, or of Parent and its Affiliates, taken as a whole; • seeking, directly or indirectly, to impose or confirm material limitations on the ability 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 the Company’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 in effect any Order that is reasonably likely to result, directly or indirectly, in any of the effects referred to above in the sub-bullet points included in the immediately preceding bullet point; • the applicable waiting period (and not theretofore accepted for payment any extension thereof, subject to Section 7.09(d) of the Merger Agreement (which, among other things, provides that neither Parent nor the Company will commit to or paid foragree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or applicable Foreign Competition Laws without the prior written consent of the other)) unless, prior applicable to the Offer or the Merger under the HSR Act or any Foreign Competition Law shall have expired or been terminated, and any affirmative approval of a Governmental Authority required under any Foreign Competition Law shall have been obtained (the condition described in this bullet point, the “Antitrust Condition”); • the Company shall have complied in all respects its obligations under Section 7.01(h) of the Merger Agreement (which provides that the Company shall not take various actions related to, among other things, the hiring, Table of Contents termination, or modification of the terms of employment or engagement (including compensation) of employees, consultants, contractors and advisors); • there has not been any fact, event, change, development or set of circumstances that has had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; • no Triggering Event (the definition of which is summarized above in Section 11 – “The Merger Agreement; Other Agreements – The Merger”) shall have occurred; and • the Merger Agreement shall not have been terminated in accordance with its terms. The foregoing conditions are for the sole benefit of Parent and Purchaser and (except for the Minimum Condition) may be waived by Parent and Purchaser, in whole or in part at any time and from time to time, in the sole discretion of Parent and Purchaser. However, if an event occurs that will result in a failure of a condition to the Offer to be satisfied as of the scheduled expiration of the Offer, Purchaser will disclose whether or not it is waiving that condition promptly after learning of such event unless the condition is one where satisfaction of the condition may be determined only upon expiration of the Offer (as it may have been extended pursuant or Purchaser is unable to Section 1.1(a) determine whether the event will result in a failure of the Agreement), there shall have been tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its affiliates, represent one share more than 50% of the outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Conditionbe satisfied.” Furthermore, Merger Sub shall not be required to accept for payment, and (subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such 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):

Conditions of the Offer. Notwithstanding any other provision ​ 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 Offer, but subject to compliance with the terms Schedule TO and conditions of the Agreement, and in addition to (and not in limitation of) the rights and obligations is incorporated herein by reference. The obligation of Merger Sub to extend and/or amend the Offer accept for payment and pay for Shares validly tendered (and not validly withdrawn) pursuant to the terms and conditions Offer is subject to the satisfaction (or waiver by Parent or Merger Sub as described below) of the Agreement, conditions below as of immediately prior to the Expiration Time. Merger Sub shall is not be obligated required to accept for paymentpayment or, and (subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c14e-l(c) promulgated under the Exchange Act (relating to the obligation of Merger Sub’s obligation Sub to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any Shares that are validly tendered pursuant to the Offer (and not theretofore accepted for payment or paid for) unless, validly withdrawn prior to the expiration of the Offer, and may extend, terminate or amend the Offer, in each case, only to the extent provided by the Merger Agreement, in the event that, as of immediately prior to the Expiration Time, the following conditions to the offer have not been satisfied or waived by Parent or Merger Sub (to the extent such waiver is permitted by applicable Law): • the expiration or termination of the waiting period (and extensions thereof) applicable to the Transactions under the HSR Act shall not have expired or been terminated or there shall be in effect any voluntary agreement between Parent and the Company, on the one hand, and the FTC or the DOJ, on the other hand, pursuant to which Parent and the Company have agreed not to consummate the Offer (as it may or the Merger or any required consents applicable to the Transactions under the Foreign Antitrust Laws shall not have been extended pursuant to Section 1.1(a) of obtained (the Agreement“Antitrust Clearance Condition”), ; ​ • there shall have been be validly tendered and not validly withdrawn in accordance with the terms of the Offer, and “received” by the “depository” for the Offer (as such terms are defined in Section 251(h) of the DGCL), a number of Shares that, considered together with all the other Shares then owned by Parent, Merger Sub and their respective affiliates (if any) beneficially owned (excluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by Parent and its affiliatesthe “depository” for the Offer, represent as such terms are defined in Section 251(h)(6) of the DGCL), represents at least one share (1) Share more than fifty percent (50% %) of the total number of then-outstanding Shares (on a fully diluted basis). The preceding condition is referred to as the “Minimum Tender Condition.” Furthermore”); ​ • no governmental authority of competent jurisdiction shall have (A) enacted, issued or promulgated any law that is in effect as of immediately prior to the Expiration Time and has the effect of making the Offer, the acquisition of Shares by Parent or Merger Sub, or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer, the acquisition of Shares by Parent or Merger Sub, or the Merger, or (B) issued or granted any order that is in effect as of immediately prior to the Expiration Time and has the effect of making the Offer, the acquisition of ​ TABLE OF CONTENTS the Shares by Parent or Merger Sub, or the Merger illegal or which has the effect of prohibiting or otherwise preventing the consummation of the Offer or the Merger or the acquisition of Shares by Parent or Merger Sub (the “No Legal Restraint Condition”); • there shall not be required existing any pending legal proceeding under any Antitrust Law brought by any governmental authority of competent and applicable jurisdiction that challenges or seeks to accept make illegal, prohibit or otherwise prevent the consummation of the Offer, the acquisition of the Shares by Parent or Merger Sub or the Merger (the “No Antitrust Proceedings Condition”); ​ • the representations and warranties of the Company contained in Section 4.8 of the Merger Agreement shall be true and correct in all respects as of the date of the Merger Agreement and as of immediately prior to the Expiration Time as though made as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); ​ • the representations and warranties of the Company contained in Section 4.2(a), Section 4.2(b) and Section 4.2(c), shall be true and correct in all respects as of the date of the Merger Agreement and as of immediately prior to the Expiration Time as though made as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except for paymentany de minimis inaccuracies; ​ • the representations and warranties of the Company contained in Section 4.1, Section 4.2 (other than Section 4.2(a), Section 4.2(b) and Section 4.2(c)), Section 4.3, Section 4.4, Section 4.5, Section 4.10, Section 4.25 and Section 4.26 (without giving effect to any qualification as to “materiality” or “Company Material Adverse Effect” qualifiers or similar limitations set forth therein) shall be true and correct in all material respects as of the date of the Merger Agreement and as of immediately prior to the Expiration Time as though made as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date); ​ • all other representations and warranties of the Company contained in Article IV or Section 8.1 of the Merger Agreement (without giving effect to any qualification as to “materiality” or “Company Material Adverse Effect” qualifiers or similar limitations set forth therein) shall be true and correct in all respects as of the date of the Merger Agreement and as of immediately prior to the Expiration Time as though made at and as of such time (except to the extent expressly made as of an earlier date, in which case, as of such earlier date), except where the failure to be so true and correct would not, individually or in the aggregate, have or reasonably be expected to have a Company Material Adverse Effect; ​ • the Company shall have complied with and performed in all material respects all agreements and covenants to be performed, and complied with, by it under the Merger Agreement at or prior to the Expiration Time; ​ • since the date of the Merger Agreement, there shall not have occurred and be continuing a Company Material Adverse Effect; ​ • the Company shall have delivered to Parent a certificate, signed on behalf of the Company by its chief executive officer, certifying that the conditions set forth in the fifth through tenth bullets above have been duly satisfied as of immediately prior to the Expiration Time (subject the “Certificate Condition”); and ​ • the Merger Agreement shall not have been terminated in accordance with its terms (the “Termination Condition”). ​ The foregoing conditions are for the sole benefit of Parent and Merger Sub, may be asserted by Parent or Merger Sub and may be waived by Parent or Merger Sub in whole or in part at any time and from time to any time prior to the Acceptance Time in the sole discretion of Parent or Merger Sub, subject, in each case, to the terms of the Merger Agreement and the applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Exchange Act (relating to Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)) shall not be obligated to pay for any 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 1.1(a) of the Agreement) and before acceptance of such Shares for payment, any of the following conditions exists and is continuing, regardless of the circumstances giving rise to such condition (other than any such circumstances directly caused by any breach . The failure by Parent or Merger Sub at any time to exercise any of the foregoing rights shall not be deemed a waiver of any of their representations, warranties, covenants, agreements or obligations under the Agreement):such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time. TABLE OF CONTENTS​