Common use of CONDITIONS TO THE OFFER Clause in Contracts

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any tendered Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other ----------------------- provisions of the Offer, Acquisition Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC Commission including Rule 14e-l(c) under the Exchange Act (relating to AcquisitionPurchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any tendered Shares, and may amend the Offer consistent with the terms of this Agreement or terminate the Offer if (wi) any applicable waiting periods applicable to the Offer period under the HSR Act shall has not have been expired or terminated or shall not have expired and any required approvals or notices under prior to the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) expiration of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtainedOffer, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yii) the Minimum Condition shall has not have been satisfied satisfied, or (ziii) at any time on or after the date of this Agreement February 17, 1997 and at or before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (iiA) from the date of this Agreement until the Tender Offer Purchase TimeClosing Date, there shall have occurred any change, event, occurrence or circumstance in the business, operations, properties, financial condition or results of operations of the Company or any of its subsidiaries which, individually or in the aggregate, has had or is reasonably likely to have a Company Material Adverse Effect (except for changes, events, occurrences or circumstances with respect to general economic or industry conditions); (B) any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (whether temporary, preliminary or permanent) which is in effect at the Tender Offer Purchase Time and which (A1) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits or restricts consummation of the Offer, (2) imposes material limitations on the Merger or any ability of the other transactions contemplated herebyPurchaser to acquire or hold or to exercise any rights of ownership of the Shares, or (B) prohibits Acquisition from operating effectively to manage or deriving benefits from the majority of the value of the operations of control the Company and its subsidiaries taken as business, assets and properties or (3) has had or is reasonably likely to have a whole to operate the CompanyCompany Material Adverse Effect; provided, however, that the parties shall use all commercially ----------------- reasonable efforts (subject to the proviso in Section 5.6(b5.5(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000lifted; (iii) [reserved]; (ivC) the representations and warranties of the Company set forth in this Agreement shall not (i) have been true and correct in any material respect on the date hereof or (ii) be true and correct in any respect as of the scheduled expiration date (as such date may be extended) of the Offer as though made on the or as of such date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, in each case with respect to clause (ii), (x) for changes specifically permitted by this Agreement and (y) (A) for those representations and warranties that address matters only as of a particular date which are true and correct as of such date or (B) where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; (vD) this Agreement shall have been terminated in accordance with its terms; (viE) there it shall have occurred an acceptance by been publicly disclosed or Purchaser shall have learned that any person, entity or "group" (as that term is defined in Section 13(d)(3) of the Exchange Act), other than Purchaser or its affiliates, shall have acquired beneficial ownership (as determined pursuant to Rule 13d-3 of the Exchange Act) of 20% or more of the Shares, or shall have entered into a definitive agreement with the Company with respect to a tender offer or exchange offer for any Shares or merger, consolidation or other business combination with or involving the Company or any of a Superior Proposalits subsidiaries; (vii) [reserved]; (viiiF) the Board of Managing Directors of the Company shall have withdrawn or modified in a manner adverse to Parent Purchaser its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition shareholders another offer or shall have adopted any resolution to effect any of the foregoing; (ixG) [reserved];any of the consents, approvals, authorizations, orders or permits required to be obtained by the Company, the Purchaser, or their respective subsidiaries in connection with the Acquisition from, or filings or registrations required to be made by any of the same prior to the Closing Date with, any Governmental Entity in connection with the execution, delivery and performance of this Agreement shall not have been obtained or made or shall have been obtained or made subject to conditions or requirements, except (i) where the failure to have obtained or made any such consent, approval, authorization, order, permit, filing or registration or such conditions or requirements could not reasonably be expected to (1) have a Company Material Adverse Effect or a Purchaser Material Adverse Effect or (2) impose material limitations on the ability of the Purchaser to acquire or hold or to exercise any rights of ownership of the Shares, or effectively to manage or control the Company and its business, assets and properties and (ii) for any such consent, approval, authorization, order, permit, filing or registration related to, or arising out of, compliance with statutes, rules or regulations regulating the consumption, sale or serving of alcoholic beverages; or (xH) [reserved]; there shall have occurred (xi1) [reserved]; any general suspension of trading in, or limitation on prices for, securities on the New York Stock Exchange, Inc., (xii2) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory), (3) the commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States and having had or being reasonably likely to have a Company Material Adverse Effect or materially adversely affecting (or materially delaying) the consummation of the Offer, (4) any limitation or proposed limitation (whether or not mandatory) by any United States or Dutch governmental authority or agency, or any other event, that materially adversely affects generally the extension of credit by banks or other financial institutions, (5) from the date of this Agreement until through the Tender Offer Purchase Timedate of termination or expiration of the Offer, there shall have occurred a decline of at least 25% in the Standard & Poor's 500 Index or (6) in the case of any of the situations described in clauses (1) through (5) inclusive, existing at the date of the commencement of the Offer, a war having a Material Adverse Effect on the Companymaterial acceleration, escalation or worsening thereof; which, in the reasonable judgment of Parent and AcquisitionPurchaser, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Purchaser and may be asserted by Acquisition Purchaser regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by AcquisitionPurchaser, in whole or in part, part at any time and from time to time, time in the sole discretion of AcquisitionPurchaser. The failure by Parent or Acquisition Purchaser (or any affiliate of AcquisitionPurchaser) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions The Offer will be conditional upon the satisfaction of the Offerconditions set out in Appendix I, Acquisition shall including:  valid acceptances being received in respect of APR Energy Shares which constitute not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act less than 90 per cent. (relating to Acquisition's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of orsuch lower percentage as Bidco may, subject to the restrictions referred Code, decide) of the APR Energy Shares to abovewhich the Offer relates and of the voting rights attached to those APR Energy Shares;  APR Energy not having agreed to undertake any additional obligations in any amendment to the Credit Agreement that would remain effective after the date on which the Offer becomes or is declared unconditional in all respects (other than pursuant to the Amendment and Waiver Agreement);  as at a closing date on which the Offer must lapse unless it is declared unconditional in all respects, there not being any Default under the Credit Agreement as a consequence of which the Lenders are or would be entitled to take enforcement action under the Credit Agreement, subject to certain exceptions;  approval of the Management Arrangements by the Independent Shareholders at the General Meeting; and  satisfaction of those other conditions listed in Appendix I. Each of Bidco, and the Joint Bidders intend to inform APR Energy if it becomes aware of: (i) any breach of terms of the Amendment and Waiver Agreement not caused by APR Energy; or (ii) any event not caused by or directly related to APR Energy that could lead to a Default under the Credit Agreement. APR Energy intends to inform Bidco and the Joint Bidders if it enters into any discussions with the Lenders in relation to any potential or actual Default or any relevant fact or circumstance that could permit the Required Lenders or the Administrative Agent to exercise any right under section 10.2 of the Credit Agreement following any relevant cure period or expiry of any period of time. The Offer will lapse 60 days after the publication of the Offer Document (or such later date as the UK Panel may agree) if it has not become or been declared wholly unconditional as to acceptances, or, if having become or been declared wholly unconditional as to acceptances, it has not become or been declared wholly unconditional in all respects. In order to comply with the obligations set out in Rule 10 of the Code, the payment forOffer will not become or be declared unconditional as to acceptances unless Bidco, any tendered Shares, together with its wholly owned subsidiaries (if any) shall have acquired or agreed to acquire (w) any waiting periods applicable whether pursuant to the Offer or otherwise) APR Energy Shares which carry more than 50 per cent. in aggregate of the voting rights then normally exercisable at a general meeting of APR Energy. The APR Energy Shares held by Fairfax and ACM, and to be transferred to Bidco as set out in section 14 below, will count for the purpose of satisfaction of the requirements of Rule 10. These APR Energy Shares will, when combined with the APR Energy Shares committed under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Actirrevocable undertakings further described at section 15 below, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, those shares represent 52.9 per cent. in the aggregate, ninety percent (90%) aggregate of the Company's voting rights then normally exercisable at a general meeting of APR Energy. The Committed APR Energy Shares held by JCLA, Xxxxxxxx Xxxxxxxx and its subsidiary's average mortgage origination volume Xxx Xxxxx will not count for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any purpose of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any satisfaction of the following events shall occur: (i) [reserved]; (ii) from the date requirements of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or paymentsRule 10. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions The obligation of the Offer, Acquisition shall not be required Purchaser to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to pay for or return Shares tendered Shares promptly after termination or withdrawal of pursuant to the Offer), pay for, and may delay the acceptance for payment of or, Offer shall be subject to the restrictions referred following conditions: (a) At least the number of Shares that, when added to abovethe Shares already owned by Parent, shall constitute 90% of the payment forthen outstanding Shares on a fully diluted basis (including, without limitation, all Shares issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights), shall have been validly tendered Shares, if and not withdrawn prior to the expiration of the Offer (wthe "Minimum Condition"); (b) any applicable (i) waiting periods applicable to the Offer period under the HSR Act or (ii) period during which Parent or Purchaser shall have consented or otherwise be barred from purchasing Shares pursuant to the Offer as part of any agreement or other arrangement with any Governmental Authority involving the HSR Act or any other applicable antitrust laws has expired or been terminated prior to the expiration of the Offer (as it may be extended hereunder); (c) the Company shall have received any required consent or approval of any Governmental Authority and there shall not be pending or threatened any action or proceeding before any court or Governmental Authority, domestic or foreign, (i) challenging or seeking to directly or indirectly restrain or prohibit, the transactions contemplated hereby including the Merger, the Offer and the Stockholders Agreements (the "Transactions"); (ii) seeking to prohibit or limit materially the ownership or operation by the Company, Parent or any of their Subsidiaries of all or any material portion of the business or assets of the Company, (iii) seeking to impose limitations on the ability of the Parent, the Purchaser or any other Affiliate of Parent to exercise effectively full rights of ownership of any Shares, (iv) seeking to require divestiture by Parent, Purchaser or any other Affiliate of Parent of any Shares, (v) seeking to prohibit Parent or any of its Subsidiaries from effectively controlling in any material respect the business or operations of the Company or its Subsidiaries, (vi) seeking to obtain from the Company, Parent or Purchaser any damages or otherwise imposing financial burdens, penalties or fines that are material in relation to the Company and its Subsidiaries, or Parent and its Subsidiaries, in each case taken as a whole, or (vii) which is otherwise reasonably likely to have a Material Adverse Effect on the Company; (d) there shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive orderjudgment, decreeorder or injunction enacted, injunction entered, issued, enforced, promulgated or deemed applicable, or any other order which is in effect at action taken, by any Government Authority other than the Tender Offer Purchase Time and which (A) makes routine application of the acceptance for payment ofwaiting period provisions of the HSR Act to the Offer, or the payment forMerger, some which is reasonably likely to result, directly or all of the Shares illegal or otherwise prohibits consummation of the Offerindirectly, the Merger or in any of the other transactions contemplated hereby, or consequences referred to in clauses (Bi) prohibits Acquisition from operating or deriving benefits from the majority through (vii) of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000preceding paragraph; (iiie) [reserved]there shall not have occurred, and be continuing, any change, condition, event or other development that has had a Material Adverse Effect; (ivf) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date (for all purposes of this Agreement or the Company shall have breached or failed in any respect paragraph (f) without giving effect to perform or comply with any material obligation, agreement or covenant required by Material Adverse Effect qualifiers or other qualifiers based on materiality that are contained in this Agreement to be performed or complied with by it at or prior to Agreement) as of such time except, where (except to the failure of extent such representations and warranties (without regard expressly relate to materiality qualifications therein contained) an earlier date, in which case such representations and warranties shall be true and correct as of such earlier date), except to the extent that the failure or failures to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would correct do not, individually or in the aggregate, have a Material Adverse Effect; (vg) the Company shall have performed in all material respects its obligations under this Agreement which, by their terms, are to be performed prior to such date; (h) this Agreement shall not have been terminated in accordance with its terms;; and (vii) there all of the holders of outstanding Company Stock Options which have not been exercised or tendered in the Offer shall have occurred an acceptance agreed to the cancellation of such Company Stock Options as described in Section 2.8 in consideration for the receipt of the Option Spread. The obligations of the Purchaser to purchase shares pursuant to the Offer and engage in the Merger are not contingent upon the obtaining of financing by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn Parent or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such casePurchaser, and regardless of no such condition shall be implied by the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or paymentsconditions contained in this Section 1.2. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any ----------------------- other provisions of the Offer, to the extent that the Tender Offer Purchase Time has not occurred prior to March 1, 1999, Acquisition shall have no further obligations hereunder (other than to comply with applicable law) with respect to the Offer. Furthermore, notwithstanding any other provisions of the Offer, Acquisition shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any tendered Shares, if (w) any waiting periods applicable to and may amend the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection consistent with the execution, delivery and performance terms of this Agreement shall not have been obtained; except where Agreement, including extending the failure to have obtained any such consent deadline for tendering Shares, or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to terminate the Offer, if any of the following events shall occur: (i) [reserved]from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred any change, event, occurrence or circumstance which, individually or in the aggregate, has a Material Adverse Effect on the Company (except for changes, events, occurrences or circumstances with respect to general economic or lodging industry conditions); (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order (and if temporary or preliminary, not vacated within five business days of its entry) which is in effect at the Tender Offer Purchase Time and which (A1) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits or restricts consummation of the Offer, the Merger or any of the other transactions contemplated hereby, (2) imposes material limitations on the ability of Acquisition to acquire or (B) prohibits Acquisition from operating hold or deriving benefits from the majority to exercise any rights of ownership of the value of the operations of Shares, or effectively to manage or control the Company and its subsidiaries taken as business, assets and properties or (3) has a whole to operate Material Adverse Effect on the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30March 1, 20001999; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not (A) have been true and correct in one or more material respects on the date hereof or (B) be true and correct in one or more material respect as of the scheduled expiration date (as such date may be extended) of the Offer as though made on the or as of such date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, in each case with respect to clause (B), (1) for changes specifically permitted by this Agreement and (2)(x) for those representations and warranties that address matters only as of a particular date which are true and correct as of such date or (y) where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse EffectEffect on the Company; (viv) from the date of this Agreement until the Tender Offer Purchase Time, this Agreement shall have been terminated in accordance with its terms; (viv) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred (A) a breach by the Company of any of its obligations under Section 5.4, (B) an acceptance by the Company of a Superior Proposal, or (C) a termination or a breach by any Class A Holder or Class B Holder of the applicable Stockholder Agreement; (vi) within 5 days after its receipt of an SAS 71 comfort letter and the working papers associated therewith, Parent or Acquisition has notified the Company that such letter or working papers revealed a material misstatement in the financial information set forth in the Company's report on Form 10-Q filed with the SEC as of November 13, 1998; (vii) [reserved]; (viii) from the date of this Agreement until the Tender Offer Purchase Time, the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition another proposal or offer or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xiiviii) from the date of this Agreement until the Tender Offer Purchase Time, there any of the consents, approvals, authorizations, orders or permits required to be obtained by the Company, Acquisition, or their respective subsidiaries in connection with the Merger from, or filings or registrations required to be made by any of the same prior to the Tender Offer Purchase Time with, any Governmental Entity in connection with the execution, delivery and performance of this Agreement shall not have been obtained or made or shall have occurred been obtained or made subject to conditions or requirements, except where the commencement of a war having failure to have obtained or made any such consent, approval, authorization, order, permit, filing or registration or such conditions or requirements could not reasonably be expected to (A) have a Material Adverse Effect on the Company; which, in Company or the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.or

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any tendered Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfiedexpired; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]the Company shall not have received the consents required by the agreements between the Company and the Maryland Industrial Development Financing Authority, First Union National Bank and the Mayor and City Council of Baltimore; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some any or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations business of the Company and its subsidiaries taken in substantially the same manner as a whole to operate the Companyit is currently conducted; provided, however, that the parties shall use commercially reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000the Tender Offer Purchase Time; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the expiration time of the Offer, as it may be extended from time to time, or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, except where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (viv) this Agreement shall have been terminated in accordance with its terms; (viv) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viiivi) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xiivii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the -42- Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (viii) the Loan Commitment shall have been withdrawn by the Bank. (ix) Parent shall not have received the favorable opinion of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx LLP with respect to certain tax matters related to compensation payable to the Company's executive officers. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition but subject to compliance with Section 2.1 of that certain Agreement and Plan of Merger, dated as of March 6, 2012 (the “Agreement”) by and among Nuance Communications, Inc., a Delaware corporation (“Parent”), Xxxxxxxx Merger Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and Transcend Services, Inc., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in 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 at any time in accordance with and subject to the terms and conditions of the Agreement, (i) Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's the obligation of Merger Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay for, for any tendered Company Shares and (ii) Merger Sub may (and Parent may cause Merger Sub to) delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any tendered Company Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent event that at the scheduled expiration of the Offer (90%as it may be extended pursuant to Section 2.1(c) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtainedAgreement), and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yA) the Minimum Condition shall not have been satisfied or (zB) at any time on or after the date of this Agreement waiting period (and before the time of acceptance of such Shares for payment pursuant extensions thereof) applicable to the Offertransactions contemplated by the Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated (the “Regulatory Condition”), or (C) any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse and continue to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.exist:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition but subject to the terms and conditions set forth in this Agreement, Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, for any Shares validly tendered (and may delay not validly withdraw) pursuant to the acceptance Offer (and not theretofore accepted for payment of or, subject or paid for) unless (i) there shall be validly tendered and not validly withdrawn prior to the restrictions referred Expiration Date that number of Shares that represents at least a majority of the outstanding Shares on a fully diluted basis as of the Expiration Date (assuming the conversion of all outstanding Company Preferred Stock into Shares and further assuming that such fully diluted number of Shares shall not include (A) any outstanding Options, Warrants and other rights to abovepurchase Shares that are out-of-the-money and (B) any outstanding Restricted Stock Units and Options that remain unvested prior to the Expiration Date and will not vest prior to the Acceptance Time) (such condition, the payment for, “Minimum Condition”) and (ii) the waiting period (and any tendered Shares, if (wextension thereof) any waiting periods applicable to the consummation of the Offer and the Merger under the HSR Act shall not have expired or been terminated or shall not have expired and any required approvals or notices under the Bank Act(such condition, the Bank Holding Company Act “Regulatory Condition”). In addition and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) notwithstanding any other provisions of the Company's Offer, but subject to the terms and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtainedconditions set forth in this Agreement, and, in the case of any approval, authorization or consent, Merger Sub shall not be in full force required to, and effect and all conditions applicable thereto Parent shall not have been satisfied; (x) be required to cause Merger Sub to, accept for payment or, subject to any applicable rules and regulations of the consents SEC, including Rule 14e-1(c) under the Exchange Act (relating to Merger Sub’s obligation to pay for or approvals return tendered Shares promptly after termination or withdrawal of the Offer), pay for any Person other than a Governmental Entity, in connection with Shares validly tendered (and not validly withdrawn) pursuant to the execution, delivery Offer (and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent theretofore accepted for payment or approval would not have a Material Adverse Effect; (ypaid for) the Minimum Condition shall not have been satisfied or (z) if at any time on or after the date of this Agreement the commencement of the Offer and before the time of acceptance of such Shares for payment pursuant prior to the OfferExpiration Date, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect occur and be continuing at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.Expiration Date:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the OfferOffer and in addition to Merger Sub’s rights to extend, Acquisition amend or terminate the Offer in accordance with the provisions of the Merger Agreement and applicable Law, Merger Sub shall not be required to (and Parent shall not be required to) accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's obligation to Act, pay for or return any validly tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any validly tendered Shares, if (wa) there shall not have been validly tendered (not including any Shares tendered pursuant to guaranteed delivery procedures that were not actually delivered prior to the Expiration Date) and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its Subsidiaries immediately prior to the Expiration Date, represent at least one Share more than 50% of the sum of (x) the total number of Shares outstanding at the time of the expiration of the Offer and (y) the aggregate number of Shares that the Company would be required to issue upon conversion, settlement or exercise of all then outstanding options, benefit plans, obligations or securities convertible or exchangeable into Shares, or other rights to acquire or be issued Shares (including all then outstanding Company Options and Company Convertible Notes (whether then outstanding or for which the conversion date has already occurred, but in any event without duplication) but excluding the Warrants and any portion of the Company Convertible Notes which are required to be settled solely in cash upon conversion pursuant to the Settlement Notices and Indentures) (the “Minimum Condition”), (b) any applicable waiting periods applicable period (or extension thereof) relating to the Offer under the HSR Act shall has not have expired or been terminated terminated, or shall not have expired and any required pre-closing approvals or notices under the Bank Act, the Bank Holding Company Act and clearances reasonably required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 thereunder shall not have been obtained, andat or prior to the Expiration Date (the “HSR Condition”), in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (xc) any of the consents following exists or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery has occurred and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect continuing at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.Expiration Date:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the OfferOffer and in addition to the Purchaser’s rights to extend, Acquisition amend or terminate the Offer in accordance with the provisions of the Agreement and applicable Law, the Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's obligation to Act, pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any validly tendered Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (ya) the Minimum Condition shall not have been satisfied at any then scheduled Expiration Date, (b) any waiting period (and any extension thereof) under the HSR Act applicable to the transactions contemplated by the Agreement has not expired or terminated prior to the termination or expiration of the Offer at or prior to any then scheduled Expiration Date (the “HSR Condition”), (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 either unconditionally or on terms reasonably satisfactory to Parent prior to the termination or expiration of the Offer at or prior to any then scheduled Expiration Date (collectively, the “Governmental Approval Condition”) or (zd) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity conditions exist or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which has occurred and is in effect continuing at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.scheduled Expiration Date:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition and in addition to (and not in limitation of) Sub’s rights to extend and amend the Offer at any time in its sole discretion (subject to the provisions of the Merger Agreement), Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's Sub’s obligation to pay for or return tendered Shares shares of Company Capital Stock promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions restriction referred to above, the payment for, any validly tendered Sharesshares of Company Capital Stock if, if there shall not have been validly tendered and not withdrawn prior to the Expiration Date (w1) that number of shares of Company Common Stock which, when added to any shares of Company Common Stock owned by Parent and Sub, represents a majority of the issued and outstanding shares of Company Common Stock (assuming, for purposes of such calculation, the exercise or conversion of all vested “in the money” Company Options and “in the money” Company Warrants) and (2) 100% of the outstanding shares of Company Convertible Preferred Stock. Furthermore, notwithstanding any other provisions of the Offer, the Sub shall not be required to accept for payment or pay for any validly tendered shares if, at the Expiration Date (i) any applicable waiting periods applicable to the Offer under the HSR Act shall have not have been expired or terminated or shall not have expired and any required approvals or notices under prior to the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) termination of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall Offer; (ii) any clearances, permits, authorizations, consents or approvals sought by Parent or Sub under any applicable pre-merger notification laws or regulations of foreign jurisdictions have not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (ziii) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occuroccur and be continuing: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, but subject to compliance with the terms and conditions of that certain Agreement and Plan of Merger, dated as of August , 2016 (the “Agreement”) by and among MRSK Hold Co., a Delaware corporation (“Parent”), MRSL Merger Co., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Acquisition Sub”), and Skullcandy, Inc., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in the Agreement), and in addition to (and not in limitation of) the obligations of Acquisition Sub to extend the Offer pursuant to the terms and conditions of the Agreement, Acquisition Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's the obligation of Acquisition Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay forfor any Company Shares that are validly tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer, and may delay extend, terminate or amend the acceptance for payment of orOffer, subject in each case, only to the restrictions referred extent provided by the Agreement, in the event that, as of immediately prior to above, the payment for, any tendered Shares, if expiration of the Offer (wA) any waiting periods period (and extensions thereof) applicable to the Offer transactions contemplated by this Agreement under the HSR Act shall not have expired or been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfiedterminated; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied satisfied; or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse and continue to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.exist:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions term of the OfferOffer or this Agreement, Acquisition Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's Merger Sub’s obligation to pay for or return tendered Shares shares of Company Common Stock promptly after the termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment any shares of or, subject to the restrictions referred to above, the payment for, any Company Common Stock tendered Shares, if (w) any waiting periods applicable pursuant to the Offer under the HSR Act if: (a) there shall not have been terminated validly tendered (excluding any such shares tendered pursuant to guaranteed delivery procedures that have not been delivered in settlement of such guarantee) and not validly withdrawn prior to the expiration of the Offer a number of shares of Company Common Stock that, when added to (without duplication of shares) the number of shares of Company Common Stock owned by Parent and its Subsidiaries as of immediately prior to the expiration of the Offer (and after the consummation of the Stock Purchase Agreement Transaction), represent at least a majority in voting power of (without duplication of shares) (x) the outstanding shares of Company Common Stock as of immediately prior to the expiration of the Offer (and after the consummation of the Stock Purchase Agreement Transactions), plus (y) the aggregate number of shares of Company Common Stock issuable to holders of Company Options from which the Company or shall its representatives have received notices of exercise prior to the expiration of the Offer (and as to which shares of Company Common Stock have not have expired and any required approvals or notices under yet been issued to such exercising holders of Company Options) (the Bank Actforegoing clause (a), the Bank Holding Company Act and “Minimum Tender Condition”); (b) any approval required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) under any applicable Antitrust Law with respect of the Company's consummation of the Offer and its subsidiary's average mortgage origination volume for the period 1998 and 1999 consummation of the Merger shall not have been obtained, and, in (c) the case of any approval, authorization or consent, Stock Purchase Agreement shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied(the “Stock Purchase Agreement Condition”); or (xd) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery following conditions shall have occurred and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any be continuing as of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation expiration of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition Merger Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to AcquisitionMerger Sub's obligation to pay for or return tendered Shares promptly after expiration or termination or withdrawal of the Offer), to pay forfor any Shares tendered, and may delay postpone the acceptance for payment of or, subject to the restrictions referred to above, payment for any Shares tendered, and, subject to the payment forterms of the Agreement, may amend or terminate the Offer (whether or not any tendered Shares, Shares have theretofore been purchased or paid for pursuant to the Offer) if (wi) there shall not have been validly tendered and not withdrawn prior to the time the Offer shall otherwise expire a number of Shares (together with any Shares then owned by Parent or any of its Subsidiaries) which constitutes a majority of the Shares outstanding on a fully-diluted basis on the date of purchase (the "Minimum Share Condition") ("on a fully-diluted basis" having the following meaning, as of any date: the number of Shares outstanding (excluding Shares held as treasury stock by Company or any of its Subsidiaries), together with the number of Shares Company is then required to issue pursuant to obligations outstanding at that date under employee stock option or other benefit plans or otherwise other than unvested Options), (ii) any applicable waiting periods applicable to the Offer under the HSR Act shall not have expired or been terminated or shall not have expired and any required approvals or notices under prior to the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) expiration of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtainedOffer, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (ziii) if at any time on or after the date of this the Agreement and before the time of acceptance of such Shares for payment pursuant to of, or payment for, the OfferShares, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified and remain in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.effect:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, but subject to compliance with Section 1.1 of that certain Agreement and Plan of Merger, dated as of September 4, 2007 (the “Agreement”) by and among Cognos Incorporated, a Canadian corporation (“Parent”), Dimension Acquisition Corp., a Massachusetts corporation and an indirect wholly-owned subsidiary of Parent (“Merger Sub”), and Applix, Inc., a Massachusetts corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex C shall have the respective meanings ascribed thereto in 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 at any time in its sole discretion (subject to the terms and conditions of the Agreement), Merger Sub (i) shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's the obligation of Merger Sub to pay for or return tendered Shares shares of Company Common Stock promptly after termination or withdrawal of the Offer)), pay forfor any tendered shares of Company Common Stock, and (ii) may delay the acceptance for payment of or, subject to the restrictions restriction referred to above, the payment for, any tendered Sharesshares of Company Common Stock and (iii) may terminate or amend the Offer as to shares of Company Common Stock not then paid for, if in the event that at or immediately prior to the scheduled expiration of the Offer (was it may be extended pursuant to Section 1.1(c) of the Agreement), (A) any waiting periods period (and extensions thereof) applicable to the transactions contemplated by the Agreement (including the Offer and the Merger) under the HSR Act or the Gesetz gegen Wettbewerbsbeschrankangun shall not have expired or been terminated and any necessary approvals thereunder shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Actreceived, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.continuing:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's Merger Sub’s obligation to pay for or return tendered Shares shares of Common Stock promptly after termination or withdrawal of the Offer), pay forpay, and may (subject to any such rules or regulations) may, to the extent expressly permitted by this Agreement, delay the acceptance for payment of orfor, subject to the restrictions referred to above, or the payment for, any shares of Common Stock validly tendered Sharesand not properly withdrawn, if (w) any waiting periods applicable and, to the extent permitted by this Agreement, may amend or terminate the Offer under the HSR Act if: (a) there shall not have been terminated validly tendered and not properly withdrawn on or prior to the Expiration Date the number of shares of Common Stock which, when taken together with the shares of Common Stock, if any, beneficially owned by Parent, Merger Sub or any of their affiliates, represents at least a majority of the total outstanding shares of Common Stock immediately prior to the Acceptance Date ((i) assuming the issuance of all shares of Common Stock (other than the Top-Up Option Shares and any shares of Common Stock reserved for issuance pursuant to the Rights) upon the exercise, conversion or exchange of all outstanding options, warrants, convertible or exchangeable securities and similar rights; provided, that only such outstanding options that vest on or before December 31, 2010 shall be included for this calculation but regardless of the conversion or exercise price or other terms and conditions thereof, and (ii) excluding shares of Common Stock tendered in the Offer pursuant to guaranteed delivery procedures as to which delivery has not been completed as of the applicable time) (the “Minimum Condition”); (b) all applicable waiting periods under any applicable Antitrust Laws shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied earlier terminated or (zc) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the OfferExpiration Date, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time occur and which (A) makes the acceptance for payment of, or the payment for, some or all be continuing as of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.Expiration Date:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC Commission, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to AcquisitionPurchaser's obligation to pay for or return tendered Shares Shares, including the Tendered Shares, promptly after termination or withdrawal of the Offer), pay forfor any Shares tendered pursuant to the Offer, and may delay postpone the acceptance for payment of payment, or, subject to the restrictions restriction referred to above, the payment for, any Shares tendered Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, and may terminate the Offer (whether or not any Shares have theretofore been purchased or paid for) to the extent permitted by the Agreement, if (i) at the expiration of the Offer, the number of Shares validly tendered and not timely withdrawn, including the Tendered Shares, which, together with any Shares owned by Purchaser, shall not constitute at least 17% of the voting power (determined on a Fully Diluted Basis), of all the securities of the Company entitled to vote (the "MINIMUM CONDITION"), or (ii) if, at any time prior to the acceptance for payment for any such Shares, any of the following events shall occur: conditions occurs or has occurred and continues to exist (each of paragraphs (a) through (i) [reserved]providing a separate and independent condition to Purchaser's obligations pursuant to the Offer): (a) any waiting periods under the HSR Act applicable to the purchase of Shares pursuant to the Offer shall not have expired or been terminated; (iib) from the date of this Agreement until the Tender Offer Purchase Timethere shall be in effect any judgment, any Governmental Entity order, decree, statute, law, ordinance, rule or court of competent jurisdiction shall have regulation entered, enacted, issued, promulgated, enforced or entered issued by any statute, rule, regulation, executive order, decree, injunction court or other order which is governmental entity of competent jurisdiction or other legal restraint or prohibition (collectively, "RESTRAINTS") preventing the Purchaser from acquiring the Tendered Shares and the Option Shares; (c) there shall be in effect at any action or proceeding instituted by any governmental authority seeking to prevent the Tender Offer Purchase Time Purchaser from acquiring the Tendered Shares and the Option Shares or seeking material damages in connection with the transactions contemplated hereby which continues to be outstanding; (Ad) makes there shall have been instituted against the acceptance for payment of, Company or Purchaser any action or proceeding (judicial or otherwise) that seeks to enjoin or delay the payment for, some Purchaser from acquiring the Tendered Shares and the Option Shares. (e) any representation or all warranty of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger Company or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company Identified Stockholders set forth in this Agreement shall not be true and correct on in any material respect in each case as if such representation or warranty were made at the date time of this Agreement such determination (except for any representations or warranties which by their terms are given as of a specified date); (f) the Company or any Identified Stockholder shall have breached or failed in any respect fail to perform or comply in any material respect with any material obligation, covenant or agreement or covenant required by this Agreement to be performed or complied with by it at or identified to be performed or complied with by it prior to such time exceptthe consummation of the Offer; (g) any necessary consents and approvals of any federal, where state or local governmental authority or any other third party required for the failure consummation by Purchaser, Company or any Identified Stockholder of representations the transactions contemplated by this Agreement shall not have been obtained; (h) except as contemplated in Article VI, there shall have occurred any Material Adverse Effect, in the general affairs, business, management, operations, assets and warranties (without regard to materiality qualifications therein contained) to be true liabilities or prospects of the Company and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually its subsidiaries taken as a whole or in the aggregate, have a Material Adverse Effect;condition (financial or otherwise) of the Company or any of its subsidiaries; or (vi) this the Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent Purchaser with respect to each and Acquisition, in any such case, every matter referred to above and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or or with such acceptance for payment of or payments. (b) payment for Shares. The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Purchaser and (i) may be asserted by Acquisition Purchaser regardless of any the circumstances giving rise to such condition (except for any condition and action or inaction by Purchaser or any of its affiliates constituting a breach of the Agreement) or (ii) may be waived (other than the Minimum Condition) by Acquisition, Purchaser in whole or in part, at any time and or in part from time to time, time in the sole discretion of Acquisitionits reasonable discretion. The failure by Parent or Acquisition (or any affiliate of Acquisition) Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right and each such right will shall be deemed an ongoing right which and may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition and subject to the terms of the Agreement, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's obligation to Act, and rule 19 of the PSEC, pay for or return any tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of orterminate or withdraw, or subject to the restrictions referred to aboveterms of the Agreement, amend the payment for, any tendered SharesOffer, if (wi) there shall not be validly tendered and not properly withdrawn prior to the Expiration Date for the Offer that number of Shares which, when combined with any Shares owned by Purchaser or any Affiliate thereof, represents at least 66.67% of the total number of outstanding Shares, on a fully diluted basis, after giving effect to the exercise, conversion or termination of all options, warrants, rights and securities exercisable or convertible into or for Shares on the date of purchase (provided that for purposes of such calculation any Shares beneficially owned by Xxxxx Corporation, Purchaser or any of their respective Affiliates shall be deemed to have been tendered if not actually tendered and not withdrawn)(the “Minimum Condition”), (ii) any applicable waiting periods applicable to the Offer period under the HSR Act shall not have been terminated or under any applicable foreign statutes or regulations shall not have expired and or been terminated, (iii) any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for Purchaser Required Statutory Approvals or the period 1998 and 1999 Company Required Statutory Approvals that is required to be obtained prior to the consummation of the Offer shall not have been obtained, and, in the case any of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto such approvals shall not have become Final Orders (as defined below) or any of such Final Orders shall impose terms or conditions that have an Adverse Regulatory Effect (as defined below), (iv) the Agreement shall have been satisfiedterminated in accordance with its terms; (xv) any Purchaser shall have failed to receive as of the consents or approvals Expiration Date, a certificate signed by the Chief Executive Officer and Chief Financial Officer of any Person other than a Governmental EntityCompany, dated as the Expiration Date, to the effect that none of the conditions set forth in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; clauses (yc) the Minimum Condition shall not have been satisfied or (zd) below exist; or (vi) at any time on or after the date of this the Agreement and before the time of acceptance of such Shares for payment pursuant prior to the OfferAcceptance Date, any of the following events (each, an “Event”) shall occurhave occurred and (other than with respect to clauses (b) and (e)) be continuing: (ia) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Timethere shall be any action taken, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive orderlegislation, decreeinterpretation, judgment, order or injunction enacted, enforced, promulgated, amended, issued, pending or deemed applicable to the Offer, by any legislative body, court, government or governmental, administrative or regulatory authority or agency, domestic or foreign, other order which is in effect at than the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all application of the Shares waiting period provisions of the HSR Act to the Offer, that shall: (i) restrain, enjoin, prevent, prohibit, make illegal or otherwise prohibits permanently prohibit consummation of the Offer, (ii) prohibit or limit the Merger ownership or operation by Purchaser (or its Affiliates) of all or any portion of the business or assets of Company or any of the other transactions contemplated hereby, its Subsidiaries or (B) prohibits Acquisition from operating compel Purchaser to dispose of or deriving benefits from the majority hold separately all or any portion of the value business or assets of the operations Purchaser or Company or any of the Company and its subsidiaries taken as a whole to operate the Company; providedSubsidiaries, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; restrain, enjoin, prevent, prohibit or make illegal, or impose limitations on the ability of Purchaser to effectively to acquire, hold or exercise full rights of ownership of the Shares, including the right to vote any Shares acquired or owned by Purchaser (or its Affiliates) on all matters properly presented to Company’s shareholders on an equal basis with all other shareholders, (iv) the representations and warranties require divestiture by Purchaser (or its Affiliates) of any Shares; (v) result in a Company Material Adverse Effect; or (vi) result, or is reasonably likely to result in any of the Company set forth consequences referred to in this Agreement paragraph (a)(any of the effects described in any of clause (i) through (vi) hereof, an “Adverse Regulatory Effect”); or (b) Company and Purchaser shall not be true and correct on have reached an agreement that the date of this Agreement Offer or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correctterminated, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.or

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition subject to the provisions of the Merger Agreement and applicable Law, Merger Sub shall not be required to (and Parent shall not be required to cause Merger Sub to) accept for payment or, subject to any applicable rules validly tendered (and regulations of the SEC including Rule 14e-l(cnot validly withdrawn) under the Exchange Act (relating to Acquisition's obligation to pay for Shares or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any tendered Preferred Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (ya) the Minimum Condition shall not have been satisfied at the Expiration Date, (b) any applicable waiting period, together with any extensions thereof, under the Competition Laws shall not have expired or been terminated and approvals under any Competition Law required for Closing shall not have been obtained, or (zc) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occurevents, conditions, state of facts or developments exists or has occurred and is continuing at the Expiration Date: (i) [reserved]the consummation of the Offer or the Merger shall then be restrained, enjoined or prohibited by any Order (whether temporary, preliminary or permanent) of a court of competent jurisdiction or any other Governmental Entity or there shall be in effect any Law enacted or promulgated by any Governmental Entity that prevents the consummation of the Offer or the Merger; (ii) from any representation and warranty of the Company (i) contained in Sections 3.1 (Corporate Organization), 3.2(b) (Equity Interests), 3.3 (Authority; Execution and Delivery; Enforceability) and 3.18 (Broker’s Fees) of the Merger Agreement shall fail to be true and correct in all material respects at and as of the date of this the Merger Agreement until and at and as of the Tender Offer Purchase TimeExpiration Date as though made on the Expiration 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); (ii) contained in Section 3.2(a) (Capitalization) of the Merger Agreement, shall fail to be true and correct in all respects at and as of the date of the Merger Agreement and at and as of the Expiration Date as though made on the Expiration 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) and except for de minimis inaccuracies; and (iii) otherwise set forth in Article 3 of the Merger Agreement, without giving effect to any Governmental Entity qualifications as to materiality or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction Company Material Adverse Effect or other order which is in effect similar qualifications contained therein, shall fail to be true and correct at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all as of the Shares illegal or otherwise prohibits consummation date of the Offer, the Merger or any Agreement and at and as of the Expiration Date as though made on the Expiration Date, except for representations and warranties that relate to a specific date or time (which need only be true and correct as of such date or time), except as has not had and would not reasonably be expected to have, individually or in the aggregate with all other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order failures to be vacated true or lifted prior to September 30correct, 2000a Company Material Adverse Effect; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any in all material obligation, agreement or covenant respects all covenants and agreements required by this Agreement to be performed or complied with by it under the Merger Agreement at or prior to such time exceptthe Expiration Date; (iv) any change, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correctevent, effect, circumstance, condition, occurrence or the performance or compliance with such obligations, agreements or covenants, would notdevelopment shall have occurred that, individually or in the aggregate, have has had or would reasonably be expected to have, a Company Material Adverse Effect, since the date of the Merger Agreement; (v) this the Merger Agreement shall have been properly and validly terminated in accordance with its terms;; or (vi) there the Company shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse failed to delivered to Parent its approval or recommendation a certificate, dated as of the OfferExpiration Date and signed by an executive officer of the Company, shall have recommended certifying to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of that the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(aSections (ii), (iii) and (other than the Minimum Conditioniv) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless Paragraph (c) of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.this Annex I have been satisfied; or

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, but subject to compliance with the terms and conditions of that certain Agreement and Plan of Merger, dated as of November 19, 2006 (the “Agreement”), by and among Actelion US Holding Company, a Delaware corporation (“Parent”), Curl Acquisition Subsidiary, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Purchaser”), and CoTherix, Inc., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex I shall have the respective meanings ascribed thereto in the Agreement), and in addition to (and not in limitation of) the rights and obligations of Purchaser to extend and/or amend the Offer pursuant to the terms and conditions of the Agreement, Purchaser (i) shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's the obligation of Purchaser to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay forfor any tendered Company Shares, and (ii) may delay the acceptance for payment of or, subject to the restrictions rules and regulations referred to in clause (i) above, the payment for, any tendered Company Shares, if immediately prior to the scheduled expiration of the Offer: (wA) any waiting periods period (and extensions thereof) applicable to the transactions contemplated by the Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated or shall not have expired any other antitrust, competition or merger control Consents reasonably necessary to permit Purchaser to accept for payment and any required approvals or notices under pay for Company Shares pursuant to the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 Offer shall not have been obtained, and, in received (or been deemed to have been received by virtue of the case expiration or termination of any approval, authorization or consent, shall not be in full force applicable waiting period) and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any obtain such consent or approval other consents would not reasonably be expected to have a Company Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied satisfied; or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occurexist and be continuing: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding The Offer shall be conditioned upon the Minimum Shares being validly tendered and not withdrawn prior to the date which is 20 Business Days following the commencement of the Offer in accordance with the terms hereof or such later date as the Offer may be extended by an amendment to this Agreement in accordance with the provisions of the Agreement. Moreover, notwithstanding any other provisions provision of the Offer, Acquisition and subject to the terms and conditions of the Agreement, Merger Sub shall not be obligated to accept for payment any shares of Company Common Stock until expiration of all applicable waiting periods (and extensions thereof) under the HSR Act, and Merger Sub shall not be required to accept for payment orpayment, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to pay for purchase or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of oror payment for, any shares of Company Common Stock tendered in the Offer, or if the Minimum Shares shall not have been validly tendered pursuant to the Offer and not withdrawn, may terminate or amend the Offer, subject to the restrictions referred terms and conditions of the Agreement and Merger Sub's obligation to above, the payment for, any tendered Shares, if (w) any waiting periods applicable to extend the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Actpursuant to Section 1.1(b) if, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure prior to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment of any such shares of Company Common Stock (whether or not any other shares of Company Common Stock have theretofore been accepted for payment or paid for pursuant to the Offer), any of the following events shall occuroccur and remain in effect: (ia) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, an order shall have been entered in any action or proceeding before any United States federal or state Governmental Entity (an "Order"), or a preliminary or permanent injunction by a United States federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is been issued and remain in effect at (an "Injunction"), which, in either case, would have the Tender Offer Purchase Time and which effect of (Ai) makes making the acceptance for payment purchase of, or the payment for, some or all of the Shares illegal pursuant to the Offer or this Agreement illegal, (ii) otherwise prohibits preventing consummation of the Offer, the Merger Offer or any of the other transactions contemplated herebyMerger, or (Biii) prohibits Acquisition from operating imposing material limitations on the ability of Merger Sub or deriving benefits from the majority Parent effectively to exercise full rights of ownership of the value Shares, including the right to vote the Shares purchased by it on all matters properly presented to the shareholders of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties in order to invoke this condition, Parent and Merger Sub shall use have used their commercially reasonable efforts (subject to prevent such Order or Injunction or ameliorate the proviso in Section 5.6(b)) to cause any such decreeeffects thereof; and provided, judgment further, that, if the Order or other Injunction is a temporary restraining order to be vacated or lifted prior to September 30preliminary injunction of a court of competent jurisdiction, 2000Merger Sub may not, by virtue of this condition alone amend or terminate the Offer, but may only extend the Offer and thereby postpone acceptance for payment or purchase of Shares; (iiib) [reserved]there shall have been any United States or foreign federal or state statute, rule or regulation enacted or promulgated after the date of the Offer that would reasonably be expected to result in any of the material adverse consequences referred to in paragraph (a) above; (ivc) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with by the Company or Parent pursuant to its terms;; or (vid) there shall have occurred an acceptance by and be continuing (i) any general suspension of trading in, or limitation on prices for, securities on a national securities exchange in the Company United States (excluding any coordinated trading halt triggered solely as a result of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn specified increase or modified decrease in a manner adverse to Parent its approval market index or recommendation similar "circuit breaker" process) which materially and adversely affects the extension of credit in the OfferUnited States or the European Union generally by banks or other lending institutions, shall have recommended to (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the Company's stockholders United States or the European Union generally which materially and adversely affects the extension of credit in the United States or the European Union generally by banks or other lending institutions, (iii) any newly initiated material limitation (whether or not mandatory) by any Governmental Entity on, or other similar event that materially and adversely affects, the extension of credit in the United States or the European Union generally by banks or other lending institutions, or (iv) a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on or armed hostilities or other national or international calamity directly or indirectly involving the Company; which, United States or the European Union generally which materially and adversely affects the extension of credit in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of United States or the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment European Union generally by banks or paymentsother lending institutions. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, but subject to compliance with the terms and conditions of that certain Agreement and Plan of Merger, dated as of August 15, 2010 (the “Agreement”) by and among Dell Inc., a Delaware corporation (“Parent”), Dell Trinity Holdings Corp., a Delaware corporation and a wholly-owned subsidiary of Parent (“Acquisition Sub”), and 3PAR Inc., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in the Agreement), and in addition to (and not in limitation of) the obligations of Acquisition Sub to extend the Offer pursuant to the terms and conditions of the Agreement, Acquisition Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's the obligation of Acquisition Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay for, for any Company Shares that are validly tendered in accordance with the terms of the Offer and may delay the acceptance for payment of or, subject not withdrawn prior to the restrictions referred expiration of the Offer in the event that, at or prior to above, the payment for, any tendered Shares, if expiration of the Offer: (wA) any waiting periods period (and extensions thereof) applicable to the Offer transactions contemplated by this Agreement under the HSR Act shall not have expired or been terminated or terminated, and any clearances, consents, approvals, orders and authorizations of Governmental Authorities required by the Antitrust Laws of the jurisdictions set forth in Schedule A-1 to this Annex A shall not have been obtained and/or any waiting periods (and extensions thereof) applicable to the transactions contemplated by this Agreement under the Antitrust Laws of the jurisdictions set forth in Schedule A-1 to this Annex A shall not have expired and any required approvals or notices under the Bank Actbeen terminated (collectively, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied“Antitrust Approvals”); (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied satisfied; or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at occurred and continue to exist as of immediately prior to the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation expiration of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, but subject to compliance with the terms and conditions of that certain Agreement and Plan of Merger, dated as of August 23, 2016 (the “Agreement”) by and among MRSK Hold Co., a Delaware corporation (“Parent”), MRSL Merger Co., a Delaware corporation and a direct wholly owned subsidiary of Parent (“Acquisition Sub”), and Skullcandy, Inc., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in the Agreement), and in addition to (and not in limitation of) the obligations of Acquisition Sub to extend the Offer pursuant to the terms and conditions of the Agreement, Acquisition Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's the obligation of Acquisition Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay forfor any Company Shares that are validly tendered pursuant to the Offer and not withdrawn prior to the expiration of the Offer, and may delay extend, terminate or amend the acceptance for payment of orOffer, subject in each case, only to the restrictions referred extent provided by the Agreement, in the event that, as of immediately prior to above, the payment for, any tendered Shares, if expiration of the Offer (wA) any waiting periods period (and extensions thereof) applicable to the Offer transactions contemplated by this Agreement under the HSR Act shall not have expired or been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfiedterminated; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied satisfied; or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse and continue to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.exist:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, but subject to compliance with Section 2.1 of that certain Agreement and Plan of Merger, dated as of September 13, 2010 (the “Agreement”) by and among Hewlett-Packard Company, a Delaware corporation (“Parent”), Priam Acquisition Corporation, a Delaware corporation and a wholly-owned, direct or indirect, subsidiary of Parent (“Merger Sub”), and ArcSight, Inc., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in 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 at any time in its sole discretion (subject to the terms and conditions of the Agreement), Merger Sub (i) shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's the obligation of Merger Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay for, and (ii) may delay the acceptance for payment of or, subject to the restrictions restriction referred to above, the payment for, any tendered SharesCompany Shares and (iii) may terminate or amend the Offer as to Company Shares not then paid for, if in the event that at or prior to the scheduled expiration of the Offer (was it may be extended pursuant to Section 2.1(c) of the Agreement), (A) any waiting periods period (and extensions thereof) applicable to the transactions contemplated by the Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated or shall not have expired and any all approvals and actions of, filings with and notices to, required approvals or notices under the Bank Actantitrust, competition or merger control laws of Austria and Germany relating to the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulatingtransactions contemplated by the Agreement, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, andtaken or made, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.occurred:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's obligation to Act, pay for or return any tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of terminate or, subject to the restrictions referred to aboveterms of the Merger Agreement, amend the payment for, any tendered SharesOffer, if (wi) there shall not be validly tendered and not properly withdrawn prior to the Expiration Date for the Offer that number of Shares which represents at least a majority of the total number of outstanding Shares on a fully diluted basis (including Shares issuable upon exercise of options) on the date of purchase (not taking into account the Rights) (the "Minimum Condition"), (ii) any applicable waiting periods applicable to the Offer period (and any extensions thereof) under the HSR Act shall not have expired or been terminated or shall not have expired and any required approvals or notices under prior to the Bank ActExpiration Date, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (ziii) at any time on or after the date of this Agreement and before prior to the time of acceptance of such Shares for payment pursuant to the Offeror payment for any Shares, any of the following events (each, an "Event") shall occur: (ia) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Timethere shall be any action taken, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive orderlegislation, decreeinterpretation, judgment, order or injunction enacted, enforced, promulgated, amended, issued or deemed applicable to the Offer, by any Governmental Authority, directly or indirectly, (i) challenging the acquisition by Parent or the Purchaser of any shares of capital stock of the Company or the Surviving Corporation, seeking to restrain or prohibit the consummation of the Offer or the Merger or any of the other order which is transactions contemplated by the Merger Agreement or seeking to obtain from the Company or Parent any damages that are material in effect at relation to the Tender Offer Purchase Time Company and which its subsidiaries taken as a whole or Parent and its subsidiaries taken as a whole, as applicable, (Aii) makes seeking to prohibit or limit the acceptance for payment ofownership or operation by the Company, Parent or any of their respective subsidiaries of all or any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, or to compel the payment forCompany, some Parent or any of their respective subsidiaries to dispose of or hold separate all or any material portion of the Shares illegal business or otherwise prohibits consummation assets of the Company, Parent or any of their respective subsidiaries, as a result of the Offer, the Merger or any of the other transactions contemplated herebyby the Merger Agreement, (iii) seeking to impose limitations on the ability of Parent to acquire or hold, or (B) prohibits Acquisition from operating or deriving benefits from the majority exercise full rights of ownership of, any shares of capital stock of the value Company or the Surviving Corporation, (iv) seeking to prohibit Parent or any of its Subsidiaries from effectively controlling in any material respect the business or operations of the Company or its subsidiaries or (v) which otherwise would reasonably be expected to have a Material Adverse Effect on the Company or Parent; or (b) there shall be pending or threatened any action or proceeding by any Governmental Authority seeking, or that is reasonably likely to result, directly or indirectly, in, any of the consequences referred to in clauses (i) through (v) of paragraph (a) above or by any third party for which there is a substantial likelihood of resulting in any of the consequences referred to in clauses (i) through (v) of paragraph (a) above; or (c) there shall have occurred any Material Adverse Effect with respect to the Company and its subsidiaries Subsidiaries taken as a whole to operate whole; or (d) (i) the Company; provided, however, that Board of Directors of the parties Company or any committee thereof shall use reasonable efforts have withdrawn or modified (subject including by amendment to the proviso Schedule 14D-9) in Section 5.6(b)a manner adverse to Parent or the Purchaser its approval or recommendation of the Offer or the Merger Agreement, or approved or recommended any Superior Proposal, (ii) to cause the Company shall have entered into an Acquisition Agreement with a party other than Crane or any such decreeof its Affiliates, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved];the Board of Directors of the Company or any committee thereof shall have resolved to do any of the foregoing; or (ive) the Company and the Purchaser and Parent shall have reached an agreement that the Offer or the Merger Agreement be terminated, or the Merger Agreement shall have been terminated in accordance with its terms; or (f) the representations and warranties of the Company set forth in this the Merger Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to any materiality qualifications therein containedor references to Material Adverse Effect contained in any specific representation or warranty), as if such representations and warranties were made at the time of such determination except to the extent such representations and warranties expressly relate to an earlier date (in which case as of such date); provided that this paragraph (f) shall be deemed satisfied so long as the failure of all such representations and warranties to be true and correct, or the performance or compliance with such obligations, agreements or covenants, correct would not, individually or in the aggregate, not (i) have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company, (ii) prevent or materially delay the consummation of the Offer, (iii) materially increase the cost of the Offer to the Purchaser or (iv) have a material adverse effect on the benefits to Parent of the transactions contemplated by the Merger Agreement; whichor. (g) the Company shall have failed to perform in all material respects all obligations required to be performed by it under the Merger Agreement; or (h) there shall have occurred, and continued to exist, (i) any general suspension of, or limitation on prices for, trading in securities on the New York Stock Exchange or on the Nasdaq National Market, (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the reasonable judgment United States, (iii) a commencement of a war, armed hostilities or other national or international crises involving the United States or a material limitation (whether or not mandatory) by any governmental Entity on the extension of credit by banks or other lending institutions, or (iv) with respect to any of the foregoing in effect on the date of the Merger Agreement, a material worsening or acceleration thereof. The foregoing conditions (including those set forth in clauses (i) and (ii) of the initial paragraph) are for the benefit of Parent and Acquisition, in any such case, the Purchaser and may be asserted by Parent or the Purchaser regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than by Parent or the Minimum Condition) by Acquisition, Purchaser in whole or in part, part at any time and from time to timetime in their reasonable discretion, in each case, subject to the sole discretion terms of Acquisitionthe Merger Agreement. The failure by Parent or Acquisition (or any affiliate of Acquisition) the Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right and each such right will shall be deemed an ongoing right which may be asserted at any time and from time to time. The terms used in this Annex II shall have the meanings ascribed thereto in the Agreement to which it is annexed, except that the term "Merger Agreement" shall be deemed to refer to the Agreement to which this Annex II is appended. SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION OF LIBERTY TECHNOLOGIES, INC.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, but subject to compliance with Section 1.1 of that certain Agreement and Plan of Merger, dated as of July 23, 2002 (the “Agreement”) by and among Synopsys, Inc., a Delaware corporation (“Parent”), Ferrite Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), and inSilicon Corporation, a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in the Agreement), and in addition to (and not in limitation of) the rights of Merger Sub to extend and amend the Offer at any time in its sole discretion (subject to the terms and conditions of the Agreement), Merger Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's the obligation of Merger Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions restriction referred to above, the payment for, any tendered Shares, Company Shares if by the expiration of the Offer (was it may be extended pursuant to Section 1.1(c) of the Agreement) (i) any applicable waiting periods applicable to the Offer period under the HSR Act shall has not have been terminated expired or shall not have expired and any required approvals or notices under the Bank Actterminated, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yii) the Minimum Condition shall has not been satisfied, (iii) all necessary action has not been taken so that, effective as of immediately prior to the Appointment Time, no shares of Company Exchangeable Preferred Stock will be issuable or outstanding, (iv) any and all of the agreements listed on Schedule I to this Annex A have not been satisfied terminated, effective as of the Appointment Time, or (zv) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse and continue to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.exist:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition and in addition to (and not in limitation of) the Fund's right to extend and amend the Offer at any time in its sole discretion, the Fund shall not be required to accept for payment repurchase or, subject to any the applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)Act, pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the or payment for, for any tendered AMPS Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulatingif, in the aggregate, ninety percent Board's judgment: (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (ya) the Minimum Condition shall Fund is not have been satisfied or (z) at any time on or after able to borrow sufficient funds under the date of this Agreement and before the time of acceptance of such Credit Facility to purchase AMPS Shares for payment tendered pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (iib) from consummation of the date Offer would jeopardize the Fund's status as a regulated investment company under the Code; (c) the Fund is not able to liquidate sufficient amounts of this Agreement until portfolio securities of the Tender Fund for purposes of conducting the Offer Purchase Timein an orderly manner and consistent with the Fund's investment objectives; (d) the Offer would result in a failure to comply with the applicable asset coverage requirements of applicable law, the Credit Facility or any Governmental Entity new senior securities that may be issued and outstanding; (e) there shall be instituted, pending or threatened before any governmental entity or court of competent jurisdiction shall have enactedany action, issuedproceeding, promulgated, enforced application or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment ofclaim, or there shall be any judgment, order or injunction sought or any other action taken by any person or entity, which restrains, prohibits or materially delays the payment for, some making or all of the Shares illegal or otherwise prohibits consummation of the Offer, challenges the Merger or acquisition by the Fund of any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject AMPS Shares pursuant to the proviso Offer or the Board's fulfillment of its fiduciary obligations in Section 5.6(b)) connection with the Offer, seeks to cause obtain any such decree, judgment material amount of damages in connection with the Offer or other order to be vacated otherwise directly or lifted prior to September 30, 2000indirectly adversely affects the Offer or the Fund; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vif) there shall have occurred an acceptance or the completion of the Offer would result in (i) the delisting of the common shares of the Fund from any national securities exchange on which such common shares are currently listed; (ii) any general suspension of trading in or limitation on prices for securities on the NYSE, the NYSE Amex, any other exchange on which the AMPS Shares are traded or any exchange on which portfolio securities held by the Company Fund are traded; (iii) any declaration of a Superior Proposal;banking moratorium or similar action materially adverse to the Fund by U.S. federal, state or local authorities or any suspension of payment material to the Fund by banks in the United States or any other jurisdiction; (iv) any limitation having a material adverse effect on the Fund or the issuers of its portfolio securities that is imposed by U.S. federal, state or local authorities, with respect to the extension of credit by lending institutions; (v) the commencement or escalation of war, armed hostilities, terrorist action or any other international or national calamity directly or indirectly involving the United States; or (vi) any other event or condition which would have a material adverse effect on the Fund or its shareholders if the Offer were consummated; or (vii) [reserved]; (viiig) the Board shall have withdrawn determines that effecting the Offer would be inconsistent with applicable legal requirements or modified in would constitute a manner adverse breach of the Board's fiduciary duty owed to Parent the Fund or its approval or recommendation shareholders. The Fund reserves the right, at any time during the pendency of the Offer, shall have recommended to terminate, extend or amend the Offer in any respect. If the Fund determines to terminate or amend the Offer or to postpone the acceptance for payment of or payment for AMPS Shares tendered, it will, to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution extent necessary, extend the period of time during which the Offer is open as provided in the section "The Offer--Extension of Tender Period; Termination; Amendment" of this Offer to effect Purchase. Moreover, in the event any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from foregoing conditions are modified or waived in whole or in part at any time, the date Fund will promptly make a public announcement of such waiver and may, depending on the materiality of the modification or waiver, extend the Offer period as provided in the section "The Offer--Extension of Tender Period; Termination; Amendment" of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) Purchase. The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition the Fund and may be asserted by Acquisition the Fund regardless of the circumstances (including any circumstances action or inaction by the Fund) giving rise to any condition of these conditions, and may be waived (other than by the Minimum Condition) by AcquisitionFund, in whole or in part, at any time and from time to time, before the payment date, in the its sole discretion of Acquisitiondiscretion. The Fund's failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any right of these rights, and each right will of these rights shall be deemed an ongoing right which that may be asserted at any time and from time to time. Any determination or judgment by the Fund concerning the events described above will be final and binding.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition we shall not be required to, and Parent shall not be required to cause us to, accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's our obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay forfor any tendered Shares, and we may (subject to any such rules or regulations) delay the acceptance for payment of orany tendered Shares if, subject at or prior to the restrictions referred to above, the payment for, any tendered Shares, if (w) any waiting periods applicable to scheduled expiration of the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yi) the Minimum Condition shall not have been satisfied satisfied; (ii) any waiting periods or extensions thereof under the HSR Act applicable to the Offer shall not have expired or been terminated or any approvals required under the applicable antitrust laws of China and Germany applicable to the Offer shall not have been obtained, in each case, free of any condition or requirement imposing any Divestiture as defined below; or (ziii) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events conditions exist or has occurred and is continuing as of the time of the scheduled expiration of the Offer (as it may be extended in accordance with the Merger Agreement): 1) any final, non-appealable injunction by any court or governmental entity of competent jurisdiction prohibiting, restraining or enjoining the consummation of the Offer or the Merger shall occur:have been issued and be in effect; 2) any suit, action or proceeding shall have been commenced and be pending by any governmental entity of competent jurisdiction wherein an unfavorable injunction, judgment, order, decree or ruling would (i) [reserved]; prohibit, restrain or enjoin the consummation of the Offer or the Merger or (ii) from the date of this Agreement until the Tender Offer Purchase Time, result in any Governmental Entity Divestiture; 3) (i) any representation or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations warranty of the Company in the Merger Agreement (other than those relating to its capital structure, corporate authority or board approval of the Merger Agreement and the transactions contemplated thereby) shall have been inaccurate as of July 20, 2007 or the Expiration Date (or as of the specified date of any representation or warranty that speaks only as of a specified date) and such inaccuracies shall not have been cured and would have, individually or in the aggregate, a Company Material Adverse Effect (disregarding all references in such representation and warranty to the term "Company Material Adverse Effect" and other qualifications based on the word "material," except for the reference to the term "Company Material Adverse Effect" in the representation relating to the absence of a Company Material Adverse Effect); (ii) any representation or warranty of the Company relating to its subsidiaries taken capital structure shall have been inaccurate in any material respect as a whole of the specified date on which it was made, and such inaccuracy shall not have been cured (these representations and warranties will be deemed to operate be materially inaccurate if the Company's fully diluted capitalization exceeds by more than 500,000 shares the amount described in such representations and warranties); provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties any representation or warranty of the Company set forth relating to corporate authority or board approval shall have been inaccurate in this Agreement any material respect as of July 20, 2007 or the Expiration Date (or as of the specified date of any representation or warranty that speaks only as of a specified date) and the inaccuracy in such representation or warranty shall not be true have been cured in all material respects; 4) since July 20, 2007, any Company Material Adverse Effect shall have occurred and correct on the date of this Agreement or continue to exist; 5) the Company shall have breached in any material respect, or failed in any material respect to perform or to comply with with, any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at under the Merger Agreement and such breach or prior to such time except, where failure shall not have been cured in all material respects; or 6) the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Merger Agreement shall have been validly terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) . The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Parent and may be asserted by Acquisition regardless of any circumstances giving rise to any condition Purchaser and may be waived (other than the Minimum Condition) by Acquisition, Parent and Purchaser in whole or in part, part at any time and from time to timetime in our sole discretion, subject in each case to the sole discretion terms of Acquisitionthe Merger Agreement (which provides, among other things, that the Minimum Condition may be waived by Parent and Purchaser only with the prior written consent of the Company). The foregoing conditions are in addition to, and not a limitation of the rights of Parent and Purchaser to extend, terminate and/or modify the Offer pursuant to the terms and conditions of the Merger Agreement. A failure by Parent or Acquisition (or any affiliate of Acquisition) and Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right and each such right will shall be deemed an ongoing right which that may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's Merger Sub’s obligation to pay for or return tendered Shares shares of Common Stock promptly after termination or withdrawal of the Offer), pay forpay, and may (subject to any such rules or regulations) may, to the extent expressly permitted by this Agreement, delay the acceptance for payment of orfor, subject to the restrictions referred to above, or the payment for, any shares of Common Stock validly tendered Sharesand not properly withdrawn, if (w) any waiting periods applicable and, to the extent permitted by this Agreement, may amend or terminate the Offer under the HSR Act if: (a) there shall not have been terminated validly tendered and not properly withdrawn on or prior to the Expiration Date the number of shares of Common Stock which, when taken together with the shares of Common Stock, if any, beneficially owned by Parent, Merger Sub or any of their affiliates, represents at least 66 2/3% of the total outstanding shares of Common Stock ((i) assuming the issuance of all shares of Common Stock (other than the Top-Up Option Shares) upon the exercise, conversion or exchange of all outstanding options, warrants, convertible or exchangeable securities and similar rights; provided, that only such outstanding options that vest on or before December 31, 2010 shall be included for this calculation but regardless of the conversion or exercise price or other terms and conditions thereof, and (ii) excluding shares of Common Stock tendered in the Offer pursuant to guaranteed delivery procedures as to which delivery has not been completed as of the applicable time) (“Minimum Condition”); (b) all applicable waiting periods under any applicable Antitrust Laws shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfiedearlier terminated; (xc) any of the consents Amended License Agreement or approvals of the Tender Agreements have been amended, modified, cancelled, terminated, breached or repudiated by any Person party thereto (other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent Parent or approval would not have a Material Adverse Effect; (yMerger Sub) the Minimum Condition shall not have been satisfied or (zd) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the OfferExpiration Date, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time occur and which (A) makes the acceptance for payment of, or the payment for, some or all be continuing as of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.Expiration Date:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the OfferOffer and in addition to (and not in limitation of) Purchaser's rights to extend and/or amend the Offer at any time in its sole discretion, Acquisition Purchaser shall not be required to accept for payment orpayment, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to pay for purchase or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment forof, any tendered SharesNotes, in each event subject to Rule 14e-1(c) under the Exchange Act, and may terminate the Offer, if the General Conditions (was defined below) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied on or (z) at prior to the Expiration Date. For purposes of the foregoing provision, the "General Conditions" shall be deemed to have been satisfied unless any time of the following conditions shall occur on or after the date of this Agreement Offer to Purchase and before prior to the time acceptance for purchase of acceptance of such Shares for payment any Notes tendered pursuant to the Offer: (a) there shall have occurred (i) any general suspension of, or limitation on prices for, trading in securities in the United States securities or financial markets, (ii) a material impairment in the trading market for debt securities, (iii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory), (iv) any limitation (whether or not mandatory) by any governmental authority on, or other event having a reasonable likelihood of affecting, the extension of credit by banks or other lending institutions in the United States, (v) a commencement of a war, armed hostilities or other national or international crisis involving the United States or (vi) any significant adverse change in the United States securities or financial markets generally or in the case of any of the following events shall occur: (i) [reserved]foregoing existing on the date hereof, a material acceleration or worsening thereof; (iib) from the date of this Agreement until the Tender Offer Purchase Timethere exists an order, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decreestay, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement injunction that shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance enacted, entered, issued, promulgated, enforced or deemed applicable by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn any court or modified in a manner adverse to Parent its approval governmental, regulatory or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition administrative agency or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; whichinstrumentality that, in the reasonable judgment of Parent and AcquisitionPurchaser, would or would be reasonably likely to prohibit, prevent or materially restrict or delay consummation of the Offer or that is, or is reasonably likely to be, materially adverse to the business, operations, properties, condition (financial or otherwise), assets, liabilities or prospects of Purchaser or its subsidiaries; (c) there shall have been instituted or be pending any action or proceeding before or by any court or governmental, regulatory or administrative agency or instrumentality, or by any other person, which challenges the making of the Offer or is reasonably likely to directly or indirectly prohibit, prevent, restrict or delay the consummation of the Offer or otherwise adversely affect in any such casematerial manner the Offer; or (d) the Trustee shall have objected in any respect to, or taken any action that would be reasonably likely to materially and adversely affect the consummation of the Offer, or shall have taken any action that challenges the validity or effectiveness of the procedures used by Purchaser in the making of the Offer or the acceptance of the Notes or the payment for the Notes. The foregoing conditions are for the sole benefit of Purchaser and may be asserted by Purchaser regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment condition (including any action or payments. (binaction by Purchaser) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by AcquisitionPurchaser, in whole or in part, at any time and from time to time, in the sole discretion of AcquisitionPurchaser. The failure by Parent or Acquisition (or any affiliate of Acquisition) Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any other right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. Notwithstanding any other terms or provisions of the Offer or the Merger Agreement, Purchaser will not be obligated to irrevocably accept for payment, or, subject to the rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (arelating to Purchaser’s obligation to purchase or return the tendered Shares promptly after termination or withdrawal of the Offer), purchase any Shares validly tendered (and not validly withdrawn prior to the expiration time of the Offer) Notwithstanding pursuant to the Offer (and not theretofore accepted for payment or paid for), unless there have been validly tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its controlled Affiliates (excluding any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received), represent at least a majority of the Shares then outstanding at the time of the expiration of the Offer (such condition, the “Minimum Condition”) In addition and notwithstanding any other provisions of the Offer, Acquisition shall but subject to the terms and conditions set forth in the Merger Agreement, Purchaser will not be required to, and Parent will not be required to cause Purchaser to, irrevocably accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's Purchaser’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, purchase any Shares validly tendered (and may delay the acceptance for payment of or, subject not validly withdrawn prior to the restrictions referred to above, expiration time of the payment for, any tendered Shares, if (wOffer) any waiting periods applicable pursuant to the Offer under the HSR Act shall (and not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible theretofore accepted for regulating, in the aggregate, ninety percent (90%purchase) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) if at any time on or after the date of this Agreement the commencement of the Offer and before prior to the expiration time Table of acceptance Contents of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from have occurred and be continuing at the date expiration time of this the Offer: • the Merger Agreement until the Tender Offer Purchase Time, has been terminated in accordance with its terms; • any Governmental Entity or court governmental entity of competent jurisdiction shall have has enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which law that is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment ofrestrains, enjoins or otherwise prohibits, or the payment forissued an order, some whether temporary, preliminary, or all of the Shares illegal permanent, or taken any other action, that makes illegal, enjoins or otherwise prohibits prohibits, in each case, the consummation of the OfferOffer or the Merger; (i) other than representations set forth in clauses (ii), (iii) and (iv) below, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations representations and warranties of the Company set forth in the Merger Agreement are not true and its subsidiaries taken correct in all respects (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Material Adverse Effect or similar standard or qualification) as a whole to operate of the Company; provided, however, that date of the parties shall use reasonable efforts (subject Merger Agreement or as of immediately prior to the proviso in Section 5.6(b)) expiration time of the Offer as though made on and as of such date and time (except to cause the extent that any such decreerepresentation and warranty expressly speaks as of a particular date, judgment in which case such representation and warranty is not true and correct as of such particular date), except where the failure of any such representation or other order warranty to be vacated so true and correct would not, individually or lifted in the aggregate, have or reasonably be expected to have a Material Adverse Effect; (ii) the representation and warranty of the Company set forth in Sections 6.3(a)-(c) of the Merger Agreement are not true and correct (other than de minimis inaccuracies) as of the date of the Merger Agreement or as of immediately prior to September 30the expiration time of the Offer as though made on and as of such date and time (except to the extent that such representation and warranty expressly speaks as of a particular date, 2000; in which case such representation and warranty is not true and correct as of such particular date); and (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Sections 6.4, 6.11(b) and 6.22 of the Merger Agreement shall are not be true and correct on in all respects as of the date of this the Merger Agreement or as of immediately prior to the expiration time of the Offer as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of a particular date, in which case such representation and warranty is not true and correct as of such particular date); • the Company shall have breached has not performed or failed complied in any respect to perform all material respects with the obligations or comply with any material obligation, agreement or covenant covenants required by this Agreement to be performed by it under the Merger Agreement required to be performed by or complied with by it at or prior to such time exceptthe Offer Closing; • since the date of the Merger Agreement, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correctthere has occurred any event, change, development, circumstance, fact or the performance effect, occurrence, circumstance or compliance with such obligations, agreements or covenants, would notdevelopment that, individually or in the aggregate, have has had or would reasonably be expected to have, a Material Adverse Effect; (v) this Agreement shall ; and • Xxxxxx has not received at the Acceptance Time a certificate signed on behalf of the Company by the chief executive officer or chief financial officer of the Company to the effect that the conditions described in the immediately preceding three bullets have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) satisfied. The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Parent and may be asserted by Acquisition regardless of any circumstances giving rise to any condition Purchaser and may be waived (other than to the Minimum Conditionextent permitted by applicable law) by AcquisitionParent and Purchaser, in whole or in part, part at any time and from time to timetime at or prior to the expiration time of the Offer, in the their sole discretion (except for the Minimum Condition which may be waived by Parent and Purchaser only with the prior written consent of Acquisitionthe Company, which may be granted or withheld in the Company’s sole discretion), in each case, subject to the terms of the Merger Agreement and the applicable rules and regulations of the SEC. The failure by Parent or Acquisition (or any affiliate of Acquisition) Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition the Purchaser shall not be required to accept for payment orpayment, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to purchase or pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay forany Shares, and may delay postpone the acceptance for payment of or, subject to the restrictions referred to above, or the payment for, for any tendered Shares, if unless (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yi) the Minimum Condition is satisfied by 12:00 Midnight on the Expiration Date or such later date to which the Offer may be extended in accordance with the terms of the Merger Agreement, and (ii) the Purchaser shall have available at the Expiration Date the financing pursuant to the Bridge Credit Agreement. In addition, the Offer is conditioned upon the following: - The Board of Directors of the Company and the Special Committee shall not have been satisfied withdrawn or (z) at any time on or after modified, in a manner adverse to the date Purchaser, its approval of this Agreement the Offer and before its recommendation that the time stockholders of acceptance of such the Company tender their Shares for payment pursuant to the Offer. - There shall not have occurred any effect that, any of individually or in aggregate, is materially adverse to the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Timecondition, any Governmental Entity or court of competent jurisdiction shall have enactedbusiness, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment ofassets, or the payment for, some or all results of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the . - The representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement in all material respects. - No governmental or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement judicial action shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by taken which materially adversely affects the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation consummation of the Offer. - Any material consents or authorizations, permits, orders or approvals of any governmental body required for the consummation of the Offer shall have recommended been obtained and any filings or registrations required to the Company's stockholders a Third Party Acquisition or be made with any governmental body shall have adopted any resolution to effect any been made by the closing of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there Offer. - There shall not have occurred (i) any general suspension for at least three business days of trading in securities quoted on the commencement Nasdaq National Market, (ii) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory), (iii) the declaration of war by the Congress of the United States having had or being reasonably likely to have a Material Adverse Effect material adverse effect on the Company; whichcondition, business, assets, liabilities or results of operations of the Company taken as a whole, or (iv) any limitation or proposed limitation (whether or not mandatory) by any governmental body, or any other event, that materially adversely affects generally the extension of credit by banks or other financial institutions in the reasonable judgment United States. The foregoing conditions are for the sole benefit of Parent and Acquisitionthe Purchaser, in any such case, and may be asserted by the Purchaser regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than by the Minimum Condition) by Acquisition, Purchaser in whole or in part, at any time and from time to time, in except for the sole discretion Minimum Condition which may not be waived by the Purchaser without the prior written consent of Acquisitionthe Special Committee. The failure by Parent or Acquisition (or any affiliate of Acquisition) the Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to timesuch right.

CONDITIONS TO THE OFFER. Notwithstanding any other terms or provisions of the Offer or the Merger Agreement, Purchaser will not be obligated to irrevocably accept for payment, or, subject to the rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (arelating to Purchaser’s obligation to purchase or return the tendered Shares promptly after termination or withdrawal of the Offer), purchase any Shares validly tendered (and not validly withdrawn prior to the expiration time of the Offer) Notwithstanding pursuant to the Offer (and not theretofore accepted for payment or paid for), unless (i) there have been validly tendered and not validly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and its controlled Affiliates (excluding any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received), represent one more Share than 50% of the sum of (x) the total number of Shares outstanding at the time of the expiration of the Offer, plus (y) the aggregate number of Shares then issuable to optionholders from which the Company has received notices of exercise prior to the expiration of the Offer (and as to which such Shares have not yet been issued to such exercising optionholders) (such condition, the “Minimum Condition”) and (ii) the waiting period (and any extension thereof) applicable to the consummation of the Offer and the Merger under the HSR Act or other applicable antitrust laws shall have expired or been terminated In addition and notwithstanding any other provisions of the Offer, Acquisition shall but subject to the terms and conditions set forth in the Merger Agreement, Purchaser will not be required to, and Parent will not be required to cause Purchaser to, irrevocably accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's Purchaser’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, purchase any Shares validly tendered (and may delay the acceptance for payment of or, subject not validly withdrawn prior to the restrictions referred to above, expiration time of the payment for, any tendered Shares, if (wOffer) any waiting periods applicable pursuant to the Offer under the HSR Act shall (and not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible theretofore accepted for regulating, in the aggregate, ninety percent (90%purchase) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) if at any time on or after the date of this Agreement the commencement of the Offer and before prior to the expiration time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from have occurred and be continuing at the date expiration time of this the Offer: • the Merger Agreement until the Tender Offer Purchase Time, has been terminated in accordance with its terms; • any Governmental Entity or court governmental entity of competent jurisdiction shall have has enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which law that is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment ofrestrains, enjoins or otherwise prohibits, or the payment forissued a final and nonappealable order, some or all of the Shares illegal taken any other action, that is in effect and permanently restrains, enjoins or otherwise prohibits prohibits, in each case, the consummation of the Offer, the Merger or any of the other transactions contemplated herebyby the Merger Agreement; (i) other than representations set forth in clauses (ii), or (Biii) prohibits Acquisition from operating or deriving benefits from and (iv) below, the majority of the value of the operations representations and warranties of the Company set forth in the Merger Agreement are not true and its subsidiaries taken correct (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Company Material Adverse Effect or similar standard or qualification) as a whole to operate of the Company; provided, however, that date of the parties shall use reasonable efforts Merger Agreement or as of the expiration time of the Offer as though made on and as of such date and time (subject except to the proviso in Section 5.6(b)) to cause extent that any such decreerepresentation and warranty expressly speaks as of an earlier date, judgment in which case such representation and warranty is not true and correct as of such earlier date), except where the Table of Contents failure of any such representation or other order warranty to be vacated so true and correct would not, individually or lifted prior in the aggregate, have or reasonably be expected to September 30have a Company Material Adverse Effect; (ii) the representation and warranty of the Company set forth in clause (b) of the first sentence of Section 4.5 of the Merger Agreement (Absence of Certain Changes) is not true and correct of the date of the Merger Agreement or as of the expiration time of the Offer as though made on and as of such date and time (except to the extent that such representation and warranty expressly speaks as of an earlier date, 2000; in which case such representation and warranty is not true and correct as of such earlier date); (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Section 4.3(a) of the Merger Agreement shall (Capitalization) and Section 4.17 of the Merger Agreement (Authority; Binding Nature of Agreement) are not be true and correct on as of the date of this the Merger Agreement or as of the expiration time of the Offer as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty is not true and correct as of such earlier date), except for de minimis inaccuracies; and (iv) the representations and warranties set forth in Section 4.1(a) of the Merger Agreement (Due Organization and Good Standing) and Section 4.22 (Brokers) are not true and correct (in each case, disregarding all qualifications and exceptions contained therein regarding materiality or Company Material Adverse Effect or similar standard or qualification) in all material respects as of the date of the Merger Agreement or as of the expiration time of the Offer as though made on and as of such date and time (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty is not true and correct in all material respects as of such earlier date); • the Company shall have breached has not performed or failed complied in any respect all material respects with the obligations or covenants required to be performed by it under the Merger Agreement and such failure to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or has not been cured prior to such the expiration time exceptof the Offer; • Xxxxxx has not received at the Acceptance Time a certificate signed on behalf of the Company by a senior executive officer of the Company to the effect that the conditions described in the immediately preceding two bullets have been satisfied; or • since the date of the Merger Agreement, where the failure of representations there has occurred and warranties (without regard to materiality qualifications therein contained) to be true and correctis continuing any event, change, effect, occurrence, circumstance or the performance or compliance with such obligations, agreements or covenants, would notdevelopment that, individually or in the aggregate, have has had or would reasonably be expected to have, a Company Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) . The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Parent and may be asserted by Acquisition regardless of any circumstances giving rise to any condition Purchaser and may be waived (other than to the Minimum Conditionextent permitted by the Merger Agreement and applicable law) by AcquisitionParent and Purchaser, in whole or in part, part at any time and from time to timetime at or prior to the expiration time of the Offer, in the their sole discretion (except for the Minimum Condition which may be waived by Parent and Purchaser only with the prior written consent of Acquisitionthe Company, which may be granted or withheld in the Company’s sole discretion), in each case, subject to the terms of the Merger Agreement and the applicable rules and regulations of the SEC. The failure by Parent or Acquisition (or any affiliate of Acquisition) Purchaser at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted at any time and from time to time at or prior to the expiration time of the Offer. Parent acknowledges that (i) any waiver of a condition may require the extension of the Offer and recirculation of new disclosure to the Company’s shareholders, (ii) in the event that a condition is triggered by events occurring prior to the expiration time of the Offer, subject to any good xxxxx xxxxx in determining the underlying facts (including whether or not Parent expects that the failure of a condition to be satisfied due to such events may reasonably be expected to be cured prior to the expiration time of the Offer), Parent will inform the Company’s shareholders how it intends to proceed promptly, rather than waiting until the expiration time of the Offer, unless the condition is one where satisfaction of the condition may be determined only upon expiration of the Offer or Parent makes a good faith determination that the failure of a condition to be satisfied may reasonably be expected to be cured prior to the expiration time of the Offer, (iii) in the event that Parent accepts Shares for payment in the Offer and certain conditions to the Offer have not been satisfied at that time, such conditions will Table of Contents be deemed to have been waived, (iv) Parent will not, and the terms of the Offer will not give it the right to, arbitrarily delay enforcement of a known failed condition that is incapable of being satisfied by the expiration of the Offer, such that its Offer would be effectively illusory and (v) in the event that a condition is triggered and Parent makes a definitive determination not to invoke such condition in connection with the Offer, Parent will publicly announce such determination and waive such condition.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including without limitation, Rule 14e-l(c14e-1(c) under the Exchange Act (relating to AcquisitionPurchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and or may delay the acceptance for payment of or, subject to the restrictions referred to above, the or payment for, any tendered Sharesshares, or may, in its sole discretion, terminate or amend the Offer as to any Shares not then paid for, if (wi) any applicable waiting periods applicable to the Offer period under the HSR Act shall not have expired or been terminated or shall terminated, (ii) the number of Shares validly tendered and not have expired and any required approvals or notices under withdrawn when added to the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) Shares then beneficially owned by Parent does not constitute two-thirds of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfiedShares then outstanding; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (ziii) at any time on or after the date of this the Merger Agreement and at or before the time of acceptance of such Shares payment for payment pursuant to the OfferShares, any of the following events shall occur: occur and be continuing: (ia) [reserved]; there shall have occurred and be continuing (ii1) any general suspension of trading in, or limitation on prices for, securities on the NYSE, (2) the declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (whether or not mandatory), (3) the commencement of a war, armed hostilities or other international or national calamity directly or indirectly involving the United States and having had or being reasonably likely to have a Material Adverse Effect or would restrain, prohibit or delay beyond the Final Termination Date the consummation of the Offer, (4) any limitation or proposed limitation (whether or not mandatory) by any Governmental Entity, or any other event, that materially adversely affects generally the extension of credit by banks or other financial institutions, (5) from the date of this the Merger Agreement until through the Tender Offer Purchase Time, any Governmental Entity date of termination or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation expiration of the Offer, a decline of at least 25% in the Merger Standard & Poor's 500 Index or (6) in the case of any of the other transactions contemplated herebysituations described in clauses (1) through (5) inclusive, or (B) prohibits Acquisition from operating or deriving benefits from existing at the majority date of the value of the operations of the Company and its subsidiaries taken as Merger Agreement, a whole to operate the Companymaterial acceleration, escalation or worsening thereof; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)b) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (ivi) the representations and warranties of the Company set forth in this the Merger Agreement shall not have been true and correct in any material respect on the date of the Merger Agreement or (ii) the representations and warranties of the Company set forth in the Merger Agreement shall not be true and correct in any respect as of the scheduled expiration date (as such date may be extended) of the Offer as though made on the or as of such date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this the Merger Agreement to be performed or complied with by it at or prior to such time except, in each case with respect to clause (ii), (x) for changes specifically permitted by the Merger Agreement and (y) (A) for those representations and warranties that address matters only as of a particular date which are true and correct as of such date or (B) where the failure of representations and warranties (without regard giving effect to materiality qualifications therein containedany limitation based on "materiality," "Material Adverse Effect" or words of similar effect set forth therein) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or not in the aggregate, aggregate reasonably be expected to have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.36

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition but subject to compliance with the terms and conditions of that certain Agreement and Plan of Merger, dated as of July 25, 2006 (the “Agreement”) by and among Hewlett-Packard Company, a Delaware corporation (“Parent”), Mars Landing Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), and Mercury Interactive Corporation, a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in 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 (i) shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's the obligation of Merger Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay forfor any tendered Company Shares, and (ii) may delay the acceptance for payment of or, subject to the restrictions restriction referred to above, the payment for, any tendered Company Shares, if in the event that at or prior to the scheduled expiration of the Offer (was it may be extended pursuant to Section 2.1(c) of the Agreement): (A) any waiting periods period (and extensions thereof) applicable to the transactions contemplated by the Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated or shall not have expired and any required approvals other material antitrust, competition or notices under the Bank Actmerger control consents reasonably deemed necessary, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 appropriate or desirable by Parent shall not have been obtained, and, in received (or been deemed to have been received by virtue of the case expiration or termination of any approvalapplicable waiting period), authorization either unconditionally or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfiedon terms reasonably satisfactory to Parent; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied satisfied; or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.occurred:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, but subject to compliance with Section 2.1 of that certain Agreement and Plan of Merger, dated as of February 7, 2007 (the “Agreement”) by and among Polycom, Inc., a Delaware corporation (“Parent”), Spyglass Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), and SpectraLink Corporation, a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in 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 (i) shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's the obligation of Merger Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay for, for any tendered Company Shares and (ii) may delay the acceptance for payment of or, subject to the restrictions restriction referred to above, the payment for, any tendered Company Shares, if in the event that at or prior to the scheduled expiration of the Offer (was it may be extended pursuant to Section 2.1(c) of the Agreement) if: (A) (x) any waiting periods period (and extensions thereof) applicable to the transactions contemplated by the Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated and (y) all other antitrust, competition or shall not have expired merger control consents reasonably deemed necessary by Parent to consummate the transactions contemplated by the Agreement (including the Offer and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%Merger) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in received (or been deemed to have been received by virtue of the case expiration or termination of any approvalapplicable waiting period), authorization either unconditionally or consenton terms reasonably satisfactory to Parent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied satisfied, or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.occurred:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition subject to the terms of the Agreement, neither Parent nor Merger Sub shall not be required to accept for payment or, exchange or exchange or deliver any shares of Parent Common Stock for (subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's Merger Sub’s obligation to pay for or return tendered Shares promptly shares of Company Common Stock after the termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment ) any shares of or, subject to the restrictions referred to above, the payment for, any tendered SharesCompany Common Stock tendered, if by the Final Expiration Date, (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y1) the Minimum Condition shall not have been satisfied satisfied, (2) the applicable waiting period (and any extension thereof) applicable to the transactions contemplated by the Agreement (including the Offer and the Merger) under the HSR Act shall not have expired or been terminated, (3) unless the All-Cash Election shall have been made, the Registration Statement shall not have become effective under the Securities Act or shall be the subject of any stop order or proceedings seeking a stop order, (4) unless the All-Cash Election shall have been made, the shares of Parent Common Stock to be issued in the Offer and the Merger shall not have been approved for listing on the NYSE, subject to official notice of issuance, and shall not be exempt from such requirement under then applicable Laws, regulations and rules of the NYSE, or (z5) at any time on or after the date of this the Agreement and before prior to the time acceptance for exchange of acceptance shares of such Shares for payment Company Common Stock pursuant to the Offer, any of the following events shall occurconditions exist and are continuing: (ia) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction there shall have enactedbeen any action taken, issued, promulgated, enforced or entered any statute, law, ordinance, rule, regulation, executive orderinjunction, decreejudgment, injunction order or decree proposed, entered, enacted, enforced, promulgated, issued or deemed applicable to the Offer or the Merger by any Governmental Entity, other order which is than the application of the waiting period provisions of the HSR Act to the Offer or the Merger, or there shall be pending or threatened in effect at writing any action, suit or proceeding by any Governmental Entity against Parent, the Tender Offer Purchase Time and which Company, Merger Sub or any of their respective Subsidiaries, that seeks to (Ai) makes prohibit, or make illegal, the acceptance for payment of, of or payment for shares of Company Common Stock or the consummation of the Offer or the Merger, (ii) render Parent or Merger Sub unable to accept for payment for, or pay for some or all of the Shares illegal shares of Company Common Stock, (iii) impose material limitations on the ability of Parent or otherwise prohibits consummation Merger Sub effectively to exercise full rights of ownership of the Offershares of Company Common Stock, including the Merger right to vote the shares of Company Common Stock purchased by it on all matters properly presented to the Company Stockholders, (iv) prohibit or impose any material limitations on Parent’s direct or indirect ownership or operation (or that of any of its affiliates) of all or a material portion of their or the other transactions contemplated herebyCompany’s businesses or assets, (v) compel Parent or (B) prohibits Acquisition from operating its affiliates to dispose of or deriving benefits from the majority hold separate any portion of the value business or assets of the operations Company or Parent and or their respective Subsidiaries which would be material in the context of the Company and its subsidiaries Subsidiaries taken as a whole to operate or Parent and its Subsidiaries taken as a whole, (vi) oblige the Company; provided, however, that the parties shall use reasonable efforts (Parent or any of their respective Subsidiaries to pay material damages or otherwise become subject to materially adverse consequences in connection with any of the proviso transactions contemplated by the Agreement or (vii) otherwise result in Section 5.6(b)a Company Material Adverse Effect (disregarding for this purpose the effect of clause (i) to cause any of the definition of such decreeterm) or, judgment or other order to be vacated or lifted prior to September 30as a result of the transactions contemplated by the Agreement, 2000a Parent Material Adverse Effect; (iiib) [reserved]the Company shall have materially breached any of its covenants, obligations or agreements under the Agreement; (ivc) the representations and warranties (i) any representation or warranty of the Company set forth in this the Agreement that is qualified as to materiality or Company Material Adverse Effect shall not have been true and correct as of the date of the Agreement or shall not be true and correct on and as of the Final Expiration Date with the same force and effect as if made as of such date, or (ii) any representation or warranty of the Company set forth in the Agreement that is not so qualified shall have not have been true and correct in all material respects as of the date of this the Agreement or shall not be true and correct in all material respects on and as of the Company shall have breached or failed in any respect to perform or comply Final Expiration Date with any material obligationthe same force and effect as if made as of such date, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of except for those representations and warranties which address matters only as of a particular date (without regard to materiality qualifications therein contained) to be which representations shall have been true and correctcorrect in all material respects as of such particular date) (it being understood that, for purposes of determining the accuracy of such representations and warranties, any update of or modification to the Company Disclosure Schedule made or purported to have been made after the date of the Agreement shall be disregarded); (d) except as set forth in the Company Disclosure Schedule, since September 27, 2009, there shall have been a Company Material Adverse Effect or the performance occurrence of any event or compliance with such obligations, agreements or covenants, the arising of any circumstance that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;; or (ve) this the Merger Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, which in the reasonable good faith judgment of Parent and AcquisitionParent, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such or the acceptance for payment of or payments. (b) payment for the shares of Company Common Stock. The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Parent and may be asserted by Acquisition regardless Merger Sub and may, subject to the terms of any circumstances giving rise to any condition and may Section 1.1 of the Agreement, be waived (other than the Minimum Condition) by AcquisitionParent and Merger Sub, in whole or in part, part at any time and from time to time, in the sole discretion of AcquisitionParent and Merger Sub. The failure by Parent or Acquisition (or any affiliate of Acquisition) and Merger Sub at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right and each such right will shall be deemed an ongoing right which may be asserted at any time and from time to time. Notwithstanding anything contained in this Annex I, neither Parent nor Merger Sub may rely on the failure of any condition set forth herein to be satisfied if such failure was caused by the breach of the Agreement by Parent or Merger Sub, or the failure by Parent or Merger to fulfill any of their respective obligations thereunder.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition shall and subject to the provisions of the Merger Agreement, the Purchasers are not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c) under the Exchange Act (those relating to Acquisition's the obligation of the Purchasers to pay for for, or return tendered Shares promptly after termination or withdrawal of the Offer), pay forfor any Shares pursuant to the Offer, and the Purchasers may delay the their acceptance for payment of or, subject to the restrictions restriction referred to above, the its payment for, any tendered Shares, if and, subject to the provisions of the Merger Agreement, the Purchasers may amend or terminate the Offer and not accept for payment any tendered Shares, if: (wa) any applicable waiting periods applicable to the Offer period or approval under the HSR Act shall and any applicable foreign antitrust law, regulation or rule has not have expired or been terminated or shall obtained, (b) the Minimum Condition has not been satisfied, (c) the Purchasers have expired not received or have available the proceeds of the financing contemplated by the Financing Agreements and any required approvals or notices under the Bank ActCapital Contribution, including but not limited to funds sufficient to: (i) purchase the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulatingShares tendered pursuant to the Offer, in (ii) pay the aggregateMerger Consideration pursuant to the Merger, ninety percent (90%iii) refinance approximately $87 million of the Company's and its subsidiary's average mortgage origination volume for subsidiaries outstanding indebtedness (assuming the period 1998 conversion of the Debentures into Shares), (iv) to purchase the securities to be sold pursuant to the PlayCore Purchase Agreements and 1999 shall (v) pay the fees and expenses required to be paid by the Company in connection with the transactions contemplated by the Merger Agreement, (d) either Purchaser is not have been obtainedreasonably satisfied that the Merger Agreement, andthe PlayCore Purchase Agreements, in the case of any approvalMM Agreement, authorization or consent, shall not be and the Fleet Consent are then in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entityeffect, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (ze) at any time on or after the date of this the Merger Agreement and before prior to the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the OfferOffer and in addition to the Purchaser’s rights to extend, Acquisition amend or terminate the Offer in accordance with the provisions of the Merger Agreement and applicable Law, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's obligation to Act, pay for or return any validly tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any validly tendered Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (ya) the Minimum Condition shall not have been satisfied at the Expiration Date, (b) any waiting period under the HSR Act applicable to the transactions contemplated by the Merger Agreement has not expired or terminated at or prior to the Expiration Date (the “HSR Condition”), (c) any other approvals, consents or authorizations of any Governmental Entity, which if not obtained would reasonably be expected to lead such Governmental Entity to initiate a suit, action or proceeding seeking the type of relief described in clauses (A), (B), (C) or (zD) of paragraph (i) below (each, an “Other Required Governmental Approval” and collectively, the “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 any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant prior to the Offer, Expiration Date or (d) any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity conditions exist or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which has occurred and is in effect continuing at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.Expiration Date:

CONDITIONS TO THE OFFER. The capitalized terms used in this Annex I shall have the meanings set forth in the Agreement and Plan of Merger to which this Annex I is attached (the “Agreement”) unless specifically defined in this Annex I. 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 conditions set forth in clauses (a) Notwithstanding through (h) below. Accordingly, notwithstanding any other provisions provision of the OfferOffer or this Agreement to the contrary, Acquisition Purchaser shall not be required to accept for payment or, or (subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), Act) pay for, and may delay the acceptance for payment of orof, or (subject to the restrictions referred to above, any such rules and regulations) the payment for, any tendered Shares, if (w) any waiting periods applicable and, to the extent permitted by the Agreement, may terminate the Offer: (i) upon termination of the Agreement; and (ii) at any scheduled Expiration Date (subject to any extensions of the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%pursuant to Section 2.1(c) of the Company's and its subsidiary's average mortgage origination volume for Agreement) or amend the period 1998 and 1999 shall not have been obtainedOffer as otherwise permitted by the Agreement, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; if: (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yA) the Minimum Condition shall not have been be satisfied or as of one (z1) at any time minute following 11:59 p.m. Eastern Time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any Expiration Date of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority any of the value additional conditions set forth in clauses (b) through (h) below shall not be satisfied or waived (to the extent permitted by the Agreement and applicable Law) in writing by Parent: (a) the number of Shares validly tendered (and not properly withdrawn) prior to the time that the Offer expires (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received”, as defined by Section 251(h)(6)(f) of the operations DGCL by the “depository” (as such term is defined in Section 251(h)(6)(c) of the Company DGCL)), together with the Shares then owned by Purchaser and its subsidiaries taken “affiliates” (as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso such term is defined in Section 5.6(b251(h)(6)(a) of the DGCL), represent at least one (1) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000Share more than 50% of the then-issued and outstanding Shares (the “Minimum Condition”); (iiib) [reserved]; (ivi) the representations and warranties of the Company set forth in this Section 4.4(a) and the first sentence of Section 4.4(c) (Capitalization, Etc.) of the Agreement shall not be true and correct on have been accurate in all respects other than de minimis inaccuracies as of the date of this Agreement or and at and as of the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to Offer Acceptance Time as if made on and as of such time except, where the failure of (except representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, that by their terms speak specifically as of another date or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion which case as of Acquisition. The failure by Parent such other date or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.);

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition but subject to the terms and conditions set forth in this Agreement, Merger Sub shall not be required to, and Parent shall not be required to cause Merger Sub to, accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's Merger Sub’s obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, for any Shares tendered pursuant to the Offer (and may delay the acceptance not theretofore accepted for payment of or, subject or paid for) unless (i) there shall be validly tendered and not withdrawn prior to the restrictions referred Expiration Date that number of Shares that represents at least a majority of the outstanding shares of Common Stock on a fully diluted basis as of the Expiration Date (assuming the issuance of all shares of Common Stock issuable upon the exercise of all outstanding Company Stock Options, Company SARs, warrants and other rights to abovepurchase shares of Common Stock) (such condition, the payment for, “Minimum Condition”) and (ii) (a) the waiting period (and any tendered Shares, if (wextension thereof) any waiting periods applicable to the consummation of the Offer and the Merger under the HSR Act shall not have expired or been terminated or shall not have expired and any required approvals or notices under the Bank Act(such condition, the Bank Holding Company Act “HSR Condition”) and required approvals from state Governmental Entities responsible for regulating(b) (x) CFIUS shall have issued a letter to the Parties pursuant to 31 C.F.R. part 800, in subpart D, stating a determination that either (A) it has determined that the aggregatetransactions contemplated by the Agreement are not “covered transactions” under Section 721 or (B) there are no unresolved national security concerns with respect to the transactions contemplated by this Agreement and action under Section 721 is therefore concluded or (y) CFIUS shall have recommended that the President prohibit the transactions contemplated by this Agreement and the President shall have rejected such recommendation of CFIUS and shall have announced, ninety percent pursuant to clause (90%d) of Section 721, a decision not to exercise authority under Section 721 with respect to such transactions (such condition, together with the Company's HSR Condition, the “Regulatory Conditions”). In addition, and its subsidiary's average mortgage origination volume for notwithstanding any other provisions of the period 1998 Offer, but subject to the terms and 1999 shall not have been obtainedconditions set forth in this Agreement, and, in the case of any approval, authorization or consent, Merger Sub shall not be in full force required to, and effect and all conditions applicable thereto Parent shall not have been satisfied; (x) be required to cause Merger Sub to, accept for payment or, subject to any applicable rules and regulations of the consents SEC, including Rule 14e-1(c) under the Exchange Act (relating to Merger Sub’s obligation to pay for or approvals return tendered Shares promptly after termination or withdrawal of the Offer), pay for any Person other than a Governmental Entity, in connection with Shares tendered pursuant to the execution, delivery Offer (and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent theretofore accepted for payment or approval would not have a Material Adverse Effect; (ypaid for) the Minimum Condition shall not have been satisfied or (z) if at any time on or after the date of this Agreement the commencement of the Offer and before the time of acceptance of such Shares for payment pursuant prior to the OfferExpiration Date, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect occur and be continuing at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.then scheduled Expiration Date:

CONDITIONS TO THE OFFER. Capitalized terms used in this ANNEX I but not defined herein have the meanings assigned to such terms in the Amended and Restated Agreement and Plan of Merger (athe “Agreement”) of which this ANNEX I is a part. Notwithstanding any other provisions term of the OfferOffer or the Agreement to the contrary, Acquisition Merger Sub I shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's Merger Sub I’s obligation to pay for or return tendered Shares shares of Company Common Stock, Company Class B Stock or Company Class C Stock promptly after the termination or withdrawal of the Offer), to pay forfor any shares of Company Common Stock, Company Class B Stock or Company Class C Stock tendered pursuant to the Offer, and may delay the acceptance for payment of or, subject to any applicable rules and regulations of the restrictions referred to aboveSEC, the payment for, any tendered Sharesshares of Company Common Stock, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated Company Class B Stock or shall not have expired Company Class C Stock, and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties provisions of the Agreement) may terminate the Offer and not accept for payment any tendered shares of Company set forth in this Common Stock, Company Class B Stock or Company Class C Stock: (i) if the Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have has been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation Section 8.1 of the Offer, shall Agreement; or (ii) at any scheduled Expiration Date (as it may have recommended been extended pursuant to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any Section 2.1(d) of the foregoing; (ix) [reserved]; Agreement), if (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(aclauses (a) and (other than b) below have not been satisfied at the Minimum ConditionExpiration Time or (y) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will additional conditions set forth below shall not be deemed a waiver satisfied or waived in writing by Parent I (on behalf of any right and each right will be deemed an ongoing right which may be asserted the Buyer Parties) at any time and from time to time.the Expiration Time:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the OfferOffer and in addition to the Purchaser’s rights to extend, Acquisition amend or terminate the Offer in accordance with the provisions of the Merger Agreement and applicable Law, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's obligation to Act, pay for or return any validly tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any validly tendered Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (ya) the Minimum Condition shall not have been satisfied at the Expiration Date, (b) any waiting period under the HSR Act, or any timing agreement entered into by the parties 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 (the “HSR Condition”), (c) 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 other similar Laws (other than the HSR Act), or any other material consents or approvals of, or material notices to or filings with, any Governmental Entity having jurisdiction over Parent, the Company, their respective Subsidiaries or any of their respective properties, assets, businesses or activities, applicable to the transactions contemplated by the Merger Agreement (“Other Required Governmental Approvals”) shall not have been obtained or made or any waiting period (or extension thereof) or mandated filing with respect to any Other Required Governmental Approval shall not have lapsed or been made either unconditionally or on terms reasonably satisfactory to Parent at or prior to the Expiration Date (collectively, the “Governmental Approval Condition”), or (zd) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity conditions exist or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which has occurred and is in effect continuing at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.Expiration Date:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the OfferOffer and in addition to our rights to extend, Acquisition shall not amend or terminate the Offer in accordance with the provisions of the Merger Agreement and applicable law, neither Salix nor we will be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's obligation to Act, pay for or return any Shares tendered Shares promptly after termination or withdrawal pursuant to the Offer, if any of the following events occurs and is continuing as of immediately prior the expiration of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any tendered Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) : • the Minimum Condition shall not have been satisfied satisfied; • the HSR Condition shall not have been satisfied, or any other clearance, approval or consent under any other applicable foreign competition or antitrust law shall not have been obtained, in each case prior to the Expiration Date; • there shall be any law or judgment enacted, enforced, amended, issued, in effect or deemed applicable to the Offer by any governmental authority, in any such case the effect of which is to make illegal or otherwise prohibit the acceptance for payment of or payment for Shares or the consummation of the Offer or the Merger; • any legal proceeding by any governmental authority is pending that (i) challenges or seeks to restrain or prohibit the consummation of the Offer or the Merger, (ii) seeks (A) to restrain, prohibit or limit Salix’s or its affiliates’ ownership or operation of the business of Santarus or its subsidiary, or of Salix or its affiliates or, (B) to compel Salix or any of its affiliates to divest, dispose of or hold separate all or any portion of the business or assets of Santarus or its subsidiary or of Salix or its affiliates, in each case ((A) and (B)) in any manner or to any extent not contemplated by the provisions of the Merger Agreement described in Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—Standard of Efforts; Notification and Other Actions” or (ziii) at any time seeks to impose or confirm material limitations on the ability of Salix or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of its affiliates effectively to acquire, hold or exercise full rights of ownership of the following events shall occur:Shares, including the right to vote Shares acquired or owned by Salix or any of its subsidiaries on all matters properly presented to Santarus’ stockholders; • Santarus and Salix reach an agreement that the Offer or the Merger Agreement be terminated, or the Merger Agreement is terminate in accordance with its terms; (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of Santarus in the Company set forth in this Merger Agreement shall with respect to organization, capitalization, authorization, non-contravention with Santarus’ organization documents or applicable judgments or laws, broker’s or finder’s fees, the fairness opinion of Santarus’ financial advisor and state takeover statutes are not be true and correct on in all respects (other than de minimis inaccuracies) as of the date of this the Merger Agreement and as of the Expiration Date as though made on and as of such date (except to the extent expressly made as of an earlier date, in which case as of such Table of Contents earlier date) or (ii) any representations and warranties of Santarus in the Merger Agreement (other than those listed in the preceding clause (i)) are not true and correct (without giving effect to any limitation on any representation or warranty indicated by the words “Company shall have breached or failed Material Adverse Effect,” “in all material respects,” “in any respect material respect,” “material” or “materially”) as of the date of the Merger Agreement and as of the Expiration Date as though made on and as of such date (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 (ii), where the failure of any such representations and warranties to be so true and correct would not, and would not be reasonably expected to, have, individually or in the aggregate, a Company Material Adverse Effect; • Santarus fails to perform or comply with in any material respect any obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or under the Merger Agreement prior to such time exceptthe Expiration Date; • since the date of the Merger Agreement, where the failure there shall occur and be continuing any event, condition, change, occurrence or development of representations and warranties (without regard to materiality qualifications therein contained) to be true and correcta state of facts that has had, or the performance or compliance with such obligations, agreements or covenants, would notreasonably be expected to have, individually or in the aggregate, have a Company Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance ; or • Xxxxx does not receive a certificate signed on behalf of Santarus by the Company chief executive officer or chief financial officer of a Superior Proposal; (vii) [reserved]; (viii) Santarus to the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation effect that none of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition three immediately prior conditions has occurred or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) is continuing. The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Salix and may be asserted by Acquisition regardless of any circumstances giving rise to any condition us and may be waived (other than the Minimum Condition) by AcquisitionSalix or us, in whole or in part, part at any time and from time to time, in the sole discretion of AcquisitionSalix or us; provided that the Minimum Condition may be waived by Salix or us only with the prior written consent of Santarus, which may be granted or withheld in Santarus’ sole discretion. The failure by Parent Salix or Acquisition (or any affiliate of Acquisition) us at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions term of the OfferOffer or the Merger Agreement, Acquisition Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's Purchaser’s obligation to pay for or return tendered Shares shares of Dealertrack common stock promptly after the termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment any shares of or, subject Dealertrack common stock tendered pursuant to the restrictions referred to aboveOffer if: (a) The Minimum Condition and the Termination Condition shall have not been satisfied at (or in the case of the Termination Condition, at or prior to) the payment for, any tendered Shares, if Expiration Date; (wb) any waiting periods applicable to the Offer period under the HSR Act shall as set forth in the Merger Agreement applicable to the transactions contemplated by the Merger Agreement has not have expired, or been terminated at or shall not have expired and any required approvals or notices under prior to the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent Expiration Date; or (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (xc) any of the consents or approvals of any Person other than a Governmental Entity, in connection with following conditions shall have occurred and be continuing at the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occurExpiration Date: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court governmental authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction law or other order which is then in effect at and has the Tender effect of making the Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares Merger illegal or otherwise prohibits prohibiting, restraining or preventing the consummation of the Offer, the Offer or Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company provided that Parent and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use Purchaser have used their reasonable efforts (subject to the proviso in Section 5.6(b)) to cause oppose any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000action by such governmental authority); (iiiii) [reserved]; (ivA) the representations and warranties of Dealertrack relating to the Company set forth capitalization of Dealertrack (contained in this Section 4.3 of the Merger Agreement), other than the last sentence of Section 4.3(a) (relating to any event or circumstance between the date of the Merger Agreement and the closing that would result in an adjustment to the terms of the Company’s outstanding warrants) and the third sentence of Section 4.3(e) (relating to Dealertrack’s or its subsidiaries’ ownership of equity interest in any other person other than Dealertrack’s subsidiaries), shall not be true and correct on in all respects when made and at and as of immediately prior to the date expiration of the Offer as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be required to be true and correct in all respects only as of such time), except for any failures Table of Contents to be so true and correct that, individually or in the aggregate, are de minimis; (B) the representations and warranties of Dealertrack relating to the organization, qualification, due incorporation and valid existence of Dealertrack (contained in Section 4.1 of the Merger Agreement), regarding the organizational documents of Dealertrack (contained in Section 4.2 of the Merger Agreement), or regarding Dealertrack’s corporate authority and the validity of the Merger Agreement (contained in Section 4.4 of the Merger Agreement) shall not be true and correct in all material respects when made and at and as of immediately prior to the expiration of the Offer as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be required to be true and correct in all material respects only as of such time); (C) the representations and warranties of Dealertrack regarding the absence of a Company Material Adverse Effect (contained in Section 4.9(ii) of the Merger Agreement) (as described above in Section 11 — “The Merger Agreement — Merger Agreement — Representations and Warranties”) shall not be true and correct in all respects when made and at and as of immediately prior to the expiration of the Offer as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be required to be true and correct in all respects only as of such time); and (D) all of the remaining representations and warranties of Dealertrack set forth in the Merger Agreement, without giving effect to materiality or “Company Material Adverse Effect” qualifications, shall not be true and correct when made and at and as of immediately prior to the expiration of the Offer as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be required to be true and correct only as of such time) except with respect to this Agreement clause (D), where the failure of such representations and warranties to be so true and correct would not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect; (iii) Dealertrack shall have breached or failed in any respect to perform or to comply with with, in any material obligationrespect, any material agreement or covenant required by this Agreement to be performed or complied with by it at under the Merger Agreement on or prior to the Acceptance Time and such time exceptbreach or failure shall not have been waived by Parent or Purchaser or cured by Dealertrack; (iv) since the date of the Merger Agreement, where the failure of representations and warranties a Company Material Adverse Effect (without regard or any event, development or circumstances that would reasonably be expected to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would nothave, individually or in the aggregate, have a Company Material Adverse Effect) shall have occurred and shall be continuing as of the Expiration Date; (v) this Agreement Purchaser shall have been terminated failed to receive a certificate of Dealertrack, executed by an authorized officer of Dealertrack, dated as of the Expiration Date, to the effect that none of the conditions set forth in accordance with its terms;the foregoing clauses (c)(ii), (c)(iii) or (c)(iv) have occurred; or (vi) there shall have occurred an acceptance by the Company board of a Superior Proposal; (vii) [reserved]; (viii) the Board directors of Dealertrack shall have withdrawn or modified (including by amendment of the Schedule 14D-9) in a manner adverse to Parent Purchaser its approval or recommendation that the stockholders of Dealertrack accept the Offer, shall have recommended Offer and tender their Shares to Purchaser in the Company's stockholders a Third Party Acquisition Offer or shall have adopted any resolution to effect any made a Change of Recommendation. The foregoing conditions are in addition to, and not a limitation of, the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment rights of Parent and AcquisitionPurchaser to extend, in any such case, terminate or modify the Offer pursuant to the terms and regardless conditions of the circumstances giving rise to any such conditionMerger Agreement. The foregoing conditions, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition and the Termination Condition) , are for the sole benefit of Acquisition Parent and may be asserted by Acquisition regardless Purchaser and, subject to the terms and conditions of any circumstances giving rise the Merger Agreement and applicable law, Parent and Purchaser expressly reserve the right to any condition and may be waived (other than the Minimum Condition) by Acquisitionwaive, in whole or in part, at any time and from time condition to timethe Offer; provided, in however, that, without the sole discretion consent of AcquisitionDealertrack, we are not permitted to amend or waive the Minimum Condition, the Termination Condition, the Antitrust Law Condition or the Governmental Authority Condition. The failure by Parent or Acquisition (or any affiliate Table of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.Contents

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, but subject to compliance with the terms and conditions of that certain Agreement and Plan of Merger, dated as of May 17, 2015 (the “Agreement”) by and among BCP IV GrafTech Holdings LP, a Delaware limited partnership (“Parent”), Athena Acquisition Subsidiary Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Acquisition Sub”), and GrafTech International Ltd., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in the Agreement), and in addition to (and not in limitation of) the obligations of Parent to extend the Offer pursuant to the terms and conditions of the Agreement, Parent shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's the obligation of Parent to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay for, for any Company Shares that are validly tendered in the Offer and may delay the acceptance for payment of or, subject not withdrawn prior to the restrictions referred expiration of the Offer in the event that, at or prior to above, the payment for, any tendered Shares, if expiration of the Offer: (wA) any waiting periods period (and extensions thereof) applicable to the Offer transactions contemplated by this Agreement under the HSR Act shall not have expired or been terminated; (B) any waiting periods, clearances, approvals and/or consents applicable to the transactions contemplated by the Agreement under the Antitrust Laws of the jurisdictions set forth in Section 4.5 of the Company Disclosure Letter shall not have expired, been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yC) the Minimum Condition shall not have been satisfied satisfied; or (zD) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at occurred and continue to exist as of immediately prior to the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation expiration of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, but subject to compliance with the terms and conditions of that certain Agreement and Plan of Merger, dated as of September 2, 2010 (the “Agreement”) by and among Hewlett-Packard Company, a Delaware corporation (“Parent”), Rio Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of Parent (“Acquisition Sub”), and 3PAR Inc., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in the Agreement), and in addition to (and not in limitation of) the obligations of Acquisition Sub to extend the Offer pursuant to the terms and conditions of the Agreement, Acquisition Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's the obligation of Acquisition Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay for, for any Company Shares that are validly tendered in accordance with the terms of the Offer and may delay the acceptance for payment of or, subject not withdrawn prior to the restrictions referred expiration of the Offer in the event that, at or prior to above, the payment for, any tendered Shares, if expiration of the Offer: (wA) any waiting periods period (and extensions thereof) applicable to the Offer transactions contemplated by this Agreement under the HSR Act shall not have expired or been terminated or shall not have expired and any required approvals or notices under (the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied“Antitrust Approval”); (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied satisfied; or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at occurred and continue to exist as of immediately prior to the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation expiration of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the OfferOffer and in addition to the Purchaser’s rights to extend, Acquisition amend or terminate the Offer in accordance with the provisions of the Merger Agreement, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's obligation to Act, pay for or return any validly tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any validly tendered Shares, if if: (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (ya) the Minimum Condition shall not have been satisfied at the Expiration Date; (b) at or prior to the Expiration Date, (i) any waiting period under the HSR Act applicable to the transactions contemplated by the Merger Agreement has not expired or been earlier terminated or (zii) (A) the European Commission (“Commission”) has not taken a decision under Article 6(1)(b) of the EC Merger Regulation (or has not been deemed to have taken a decision pursuant to Article 10(6) of the EC Merger Regulation) declaring that such transactions are compatible with the common market and (B) if the Commission has taken a decision to refer the whole or part of the transactions contemplated by the Merger Agreement to the competent authorities of a Member State in accordance with Article 9(3) of the EC Merger Regulation, any such authority has not taken a decision with equivalent effect to the decisions in paragraph (A) above with respect to those parts of the transactions referred to such authority; or (c) the Agreement shall have been terminated in accordance with its terms or any of the following conditions has occurred and is continuing at the Expiration Date: (i) there shall be pending any time suit, action or proceeding by any Specified Governmental Entity of competent jurisdiction against Parent, the Purchaser, the Company or any Company Subsidiary in connection with the Offer or the Merger, (A) challenging the acquisition by Parent or the Purchaser of any Shares pursuant to the Offer or seeking to make illegal, restrain or prohibit the making or consummation of the Offer or the Merger, (B) seeking to prohibit or impose limitations on the ability of Parent or after the date Purchaser, or otherwise to render Parent or the Purchaser unable, to accept for payment, pay for or purchase any or all of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, or the Merger, or seeking to require divestiture of any or all of the Shares to be purchased pursuant to the Offer, the Top-Up Option or in the Merger, (C) seeking to prohibit or impose any limitations on the ownership or operation by Parent, the Company or any of their respective Subsidiaries, of all or any portion of the following events shall occur: businesses or assets of Parent, the Company 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 Parent, the Company or any of their respective Subsidiaries to divest, dispose of, license or hold separate any portion of the businesses or assets of Parent, the Company 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 (iD) [reserved]seeking to prohibit or impose limitations on the ability of Parent or the Purchaser effectively to acquire, hold or exercise full rights of ownership of the Shares to be purchased pursuant to the Offer, upon exercise of the Top-Up Option or otherwise in the Merger, including the right to vote the Shares purchased by it on all matters properly presented to the stockholders of the Company; (ii) from there shall be any Order or Law enacted, entered, enforced, promulgated or which is deemed applicable pursuant to an authoritative interpretation by or on behalf of a Government Entity to the date of this Agreement until Offer, the Tender Offer Purchase TimeMerger or any other transaction contemplated by the Merger Agreement, or any other action shall be taken by any Governmental Entity Entity, other than the application to the Offer or court the Merger of competent jurisdiction shall have enactedapplicable waiting periods under the HSR Act or similar waiting periods with respect to the EC Merger Regulation that (x) has resulted, issuedor is reasonably likely, promulgatedindividually or in the aggregate, enforced to result, directly or entered indirectly, in any statute, rule, regulation, executive order, decree, injunction or other order which is of the consequences referred to in effect at the Tender Offer Purchase Time and which clauses (A) makes the acceptance for payment ofthrough (E) of paragraph (i) above, or (y) has the payment foreffect of making the Offer, some the Merger or all of any other transaction contemplated by the Shares Merger Agreement illegal or which has the effect of prohibiting or otherwise prohibits preventing the consummation of the Offer, the Merger or any other transaction contemplated by the Merger Agreement; (iii) (A) any representation or warranty of the other transactions contemplated herebyCompany contained in Section 3.2 of the Merger Agreement shall fail to be true and correct in all material respects, 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 date or time), or (B) prohibits Acquisition from operating any other representation or deriving benefits from the majority of the value of the operations warranty of the Company contained in the Agreement (without giving effect to any references to any Company Material Adverse Effect or materiality qualifications shall fail to be true and its subsidiaries taken correct in any respect 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 whole specific date or time (which need only be true and correct as of such date or time), except as has not had and would not reasonably be expected to operate have, individually or in the Companyaggregate with all other failures to be true or correct, a Company Material Adverse Effect; provided, however, that if either the parties shall use reasonable efforts (total number of Shares set forth in the second sentence of Section 3.2(a) of the Merger Agreement, or the total number of Shares subject to outstanding Company Options, Company SARs and reserved for issuance under the proviso ESPP set forth in the first sentence of Section 3.2(b), in each case as of May 10, 2010, exceeds such actual numbers as of such date by more than a “de minimis” amount, such representations and warranties in Section 5.6(b)) 3.2 of the Merger Agreement shall be deemed to cause any such decree, judgment or other order fail to be vacated or lifted prior to September 30, 2000; (iii) [reserved];true and correct in all material respects. (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed failed, in any respect material respect, to perform or to comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at under the Merger Agreement and such breach or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, shall not have a Material Adverse Effectbeen cured; (v) Since the date of this Agreement, a Company Material Adverse Effect has occurred and is continuing; (vi) the Purchaser shall have not received a certificate of the Company, executed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the Expiration Date, to the effect that the conditions set forth in paragraphs (c)(iii), (c)(iv) and (c)(v) of this Annex I have not occurred; or (vii) the Merger Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition shall not be required to accept for payment or, and subject to the terms of the Merger Agreement and any applicable rules and regulations of the SEC Commission, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to AcquisitionPurchaser's obligation to pay for or return tendered Shares promptly shares after termination or withdrawal of the Offer), Parent and Purchaser will not be required to accept for payment or pay for, for any Shares tendered pursuant to the Offer and may delay the acceptance for payment of or, subject to or may terminate the restrictions referred to above, the payment for, any tendered SharesOffer, if the Minimum Condition is not satisfied by the Expiration Date or waived by Purchaser (w) after consultation with the Special Committee), if any applicable waiting periods applicable to the Offer period under the HSR Act shall has not have been expired or terminated by the Expiration Date or shall not have expired and if any applicable waiting period with respect to the environmental disclosure report required approvals or notices under to be filed with the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) Office of Environmental Quality Control of the Company's and its subsidiary's average mortgage origination volume for State of Hawaii (the period 1998 and 1999 shall "OEQC") has not have been obtainedexpired or terminated by the Expiration Date, andor if, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this the Merger Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, Expiration Date any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction occur and be continuing: - there shall have enacted, issued, promulgated, enforced or entered be any statute, rule, regulation, executive orderjudgment, decreeorder or injunction enacted, injunction entered, enforced, promulgated or other order which is in effect at deemed applicable to the Tender Offer Purchase Time and which or the Merger, including any State of Hawaii environmental statute, pursuant to an authoritative interpretation by or on behalf of a Governmental Entity that (Ai) makes prohibits the acceptance for payment ofacquisition by Parent or Purchaser of any Shares under the Offer, or restrains or prohibits the payment for, some making or all of the Shares illegal or otherwise prohibits consummation of the OfferOffer or the Merger, (ii) prohibits or materially limits the ownership or operation by the Company, Parent or any of their respective subsidiaries of a material portion of the business or assets of the Company, Parent or any of their respective subsidiaries or compels the Company, Parent or any of their respective subsidiaries to dispose of or hold separate any material portion of the business or assets of the Company, Parent or any of their respective subsidiaries, in each case as a result of the Offer or the Merger or (iii) imposes material limitations on the ability of Parent or Purchaser to acquire or hold, or exercise full rights of ownership of, any Shares to be accepted for payment pursuant to the Offer including, without limitation, the right to vote such Shares on all matters properly presented to the shareholders of the Company or (iv) prohibits Parent or any of the other transactions contemplated hereby, or (B) prohibits Acquisition its subsidiaries from operating or deriving benefits from the majority effectively controlling in any material respect any material portion of the value of the business or operations of the Company and its subsidiaries Company, Parent or any of their respective subsidiaries, taken as a whole to operate the Companywhole; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause or - any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) of the representations and warranties of the Company set forth contained in this the Merger Agreement shall not be true and correct on in all material respects at and as of the date of this consummation of the Offer (except to the extent such representations and warranties speak to an earlier date), as if made at and as of the date of consummation of the Offer, in each case except as contemplated or permitted by the Merger Agreement and with respect to any representations or warranties not qualified by a "Material Adverse Effect," (as defined in the Merger Agreement) unless the inaccuracies under all such representations and warranties, taking all the inaccuracies under such representations and warranties together in their entirety, do not individually or in the aggregate, result in a Material Adverse Effect on the Company; or - the Company shall have breached or failed in any respect to perform or comply with any in all material obligation, agreement or covenant respects the obligations required by this Agreement to be performed or complied with by it under the Merger Agreement at or prior to the Expiration Date, including but not limited to its obligations pursuant to Section 7.7 of the Merger Agreement, except for such time except, where the failure of representations and warranties (without regard failures to materiality qualifications therein contained) to be true and correct, perform as have not had or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; Effect (vas defined in the Merger Agreement) this with respect to the Company or materially adversely affect the ability of the Company to consummate the Merger or the Purchaser to accept for payment or pay for Shares pursuant to the Offer; or - the Special Committee and/or Company Board shall have (i) withdrawn, modified or amended in any respect adverse to Parent or Purchaser its approval or recommendation of the Merger Agreement, the Offer or the Merger, (ii) recommended or approved any Transaction Proposal from a person other than Parent, Purchaser or any of their respective affiliates, or (iii) resolved to do any of the foregoing; or - the Merger Agreement shall have been terminated in accordance with its terms; (vi) there ; or - the Company shall have occurred an acceptance by entered into a definitive agreement or agreement in principle with any person with respect to a Transaction Proposal or similar business combination with the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Timeits subsidiaries, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, which in the reasonable judgment of Parent and Acquisition, or Purchaser in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment payment; or payments. (b) - the lenders of Parent and Xxxxxxxxx refuse to advance funds pursuant to their commitments in an amount sufficient to pay the Merger Consideration. The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition the Parent and may be asserted by Acquisition regardless of any circumstances giving rise Purchaser and, subject to any condition and the Merger Agreement, may be waived (other than the Minimum Condition) by AcquisitionParent or Purchaser, in whole or in part, part at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any Purchaser; provided that, without the express written consent of the foregoing rights will not be deemed Company, neither Parent nor Purchaser may waive the Minimum Condition if after the waiver Purchaser would own less than a waiver majority of the Shares. In addition, Purchaser has agreed to consult the Special Committee before taking any right and each right will be deemed an ongoing right which may be asserted at any time and from time action to timewaive the Minimum Condition.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions term of the Offeroffer, Acquisition we shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation or to pay for any shares tendered unless all authorizations or return tendered Shares promptly after termination approvals of, or withdrawal expirations of waiting periods imposed by, any court, administrative agency or other governmental authority necessary for the consummation of the Offer), pay for, and may delay transactions contemplated by the acceptance offer shall have been obtained or occurred on or before the expiration date. We shall not be required to accept for payment of orany shares tendered and may, subject to the restrictions referred to above, the payment for, any tendered Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) terms of the Company's and its subsidiary's average mortgage origination volume for Stock Purchase Agreement, terminate or amend the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) offer if at any time on or after the date of this Agreement the offer and before the time of acceptance of such Shares for payment pursuant prior to the Offerexpiration date, any of the following events shall occurconditions exists: (a) there shall have been instituted and remain pending any litigation, suit, claim, action or proceeding brought by any Governmental Authority (as defined in the Stock Purchase Agreement) of competent jurisdiction over the Company (i) [reserved]challenging or seeking to make illegal or otherwise directly or indirectly restrain or prohibit the offer or the newly issued share purchase, (ii) seeking to impose material limitations on our ability to exercise effectively full rights of ownership of any shares, including, without limitation, the right to vote any shares acquired or owned by us on all matters properly presented to the shareholders of the Company, or (iii) seeking to require divestiture by us of any shares; (iib) from the date of this Agreement until the Tender Offer Purchase Timethere shall have been any judgment, order or injunction entered or issued by any Governmental Entity or court Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is that results in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated herebyconsequences referred to in clauses (i), (ii) and (iii) of paragraph (a) above; (c) the board, or (B) prohibits Acquisition from operating any committee thereof, shall have withdrawn or deriving benefits from the majority modified, in a manner adverse to us, its approval of the value Stock Purchase Agreement, the newly issued share purchase or the Board Recommendation (as defined in the Stock Purchase Agreement), shall have recommended that shareholders not tender their shares in the offer, shall have approved or recommended any Acquisition Proposal (as defined in the Stock Purchase Agreement) or any other material acquisition of shares other than the offer or the newly issued share purchase or (ii) the board, or any committee thereof, shall have resolved to do any of the operations foregoing; (d) any representation or warranty of the Company and its subsidiaries taken as a whole to operate in the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Stock Purchase Agreement shall not be true and correct as if such representation or warranty was made as of such time on or after the date of this Agreement the Stock Purchase Agreement, except as would not have a Material Adverse Effect (as defined in the Stock Purchase Agreement) or prevent or materially delay consummation of the Transactions (as defined in the Stock Purchase Agreement), or otherwise prevent the Company from performing its obligations under the Stock Purchase Agreement; (e) the Company shall have breached or failed in any respect to perform any material obligation or to comply with any material obligation, agreement or covenant required by this Agreement of the Company to be performed or complied with by it at or prior to such time except, where under the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse EffectStock Purchase Agreement; (vf) this the Stock Purchase Agreement shall have been terminated in accordance with its terms; (vig) there shall have occurred an acceptance by the Company of a Superior ProposalMaterial Adverse Effect; (viih) [reserved]we and the Company shall have agreed that we shall terminate the offer; (viiii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred any act of terrorism against the commencement United States of America that shall have resulted in (i) the simultaneous closing of three or more domestic international airports for a war having a Material Adverse Effect on period of at least 24 consecutive hours or (ii) the Company; which, simultaneous closing of the three largest stock exchanges in the reasonable judgment United States for a period of Parent and Acquisition, in any such case, and regardless at least 6.5 consecutive trading hours; or (j) the application for the listing of the circumstances giving rise newly issued shares, as provided under the Stock Purchase Agreement, shall not have been approved, subject to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit notice of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any issuance of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to timenewly issued shares.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other terms or provisions of the OfferOffer or the Merger Agreement, Acquisition shall we will not be required to accept for payment orpayment, or subject to any applicable the rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's our obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may to the extent permitted by the Merger Agreement, delay the acceptance for or payment of or, subject to the restrictions referred to above, the payment or for, any Shares tendered Shares, if (w) any waiting periods applicable pursuant to the Offer under if: · prior to the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank ActExpiration Time, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied satisfied; · the representations and warranties of FFE regarding its organization and power, corporate authorization, non-contravention, capitalization, voting, absence of certain changes, Rights Agreement, takeover statutes and brokers were not true and correct in all material respects as of the date of the Merger Agreement or are not true and correct in all material respects as of the Expiration Time as if made on and as of such Expiration Time (zit being understood that for purposes of determining the accuracy of such representations and warranties, (i) at all FFE Material Adverse Effect and other materiality qualifications in such representations and warranties shall be disregarded, and (ii) any time on update of or modification to the FFE disclosure letter provided to Purchaser made after the date of this the Merger Agreement shall be disregarded); · the other representations and before warranties of FFE set forth in the time Merger Agreement were not true and correct in all respects as of acceptance the date of the Merger Agreement or are not true and correct in all respects at and as of the Expiration Time as if made on and as of such Shares Expiration Time, except as would not (in the aggregate) reasonably be expected to have an FFE Material Adverse Effect (it being understood that, for purposes of determining the accuracy of such representations and warranties, (i) all FFE Material Adverse Effect qualifications and other materiality qualifications contained in such representations and warranties shall be disregarded, and (ii) any update of or modification to the FFE disclosure letter provided to Purchaser made after the date of the Merger Agreement shall be disregarded, and (iii) the truth and correctness of those representations or warranties that address matters only as of a specific date shall be measured only as of such date); · FFE has materially breached or failed to comply in all material respects with all covenants and obligations it is required to comply with or to perform under the Merger Agreement prior to the Expiration Time; · the waiting period, if any, applicable to the offer under the Xxxx-Xxxxx Xxxxxx Act shall have failed to expire or otherwise not have been terminated; · since the date of the Merger Agreement, there shall have occurred and be continuing an FFE Material Adverse Effect or an event shall have occurred or circumstances exist that, in combination with any other events or circumstances, could reasonably be expected to have or result in an FFE Material Adverse Effect; · there should have been issued by any court of competent jurisdiction or remain in effect any temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the Offer or the Merger or an action is taken, or any applicable law or order promulgated, entered, enforced, enacted or issued by any governmental authority which directly or indirectly prohibits, or makes illegal, the acceptance for payment pursuant of or payment for Shares or the consummation of the Offer or the Merger; · there shall be pending or threatened in writing by a governmental authority any litigation which (i) challenges or seeks to prohibit or restrain the consummation of the Offer or the Merger, (ii) seeks to restrain or prohibit Purchaser’s or its affiliates’ ownership or operation of the business of FFE, or of Purchaser’s control persons or its affiliates, or to compel Purchaser or any of its affiliates to dispose of or hold separate all or any material portion of the business or assets of FFE or of Purchaser or its affiliates, (iii) seeks to impose or confirm material limitations on the ability of Purchaser or any of its affiliates to effectively exercise full rights of ownership of the Shares, or (iv) relates to the Offer or Merger or any transactions contemplated therein and seeks to obtain from us, Merger Sub, or FFE or their affiliates any damages or other relief in excess of available insurance and such excess damages or other relief, when added to any judgments in or settlements of legal proceedings pending against FFE since the date of the Merger Agreement in excess of the aggregate amounts reserved for said judgments and/or settled claims on FFE’s and its subsidiaries’ reserve reports as of June 30, 2013, exceed $750,000 in the aggregate; · there shall be pending any litigation relating to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase TimeMerger, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated herebyherein that assert claims for damages payable by us, Merger Sub, or (B) prohibits Acquisition from operating FFE or deriving benefits from the majority any of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; providedtheir affiliates, howeverdirectly or indirectly, that the parties could reasonably be expected to result in a reasonable risk of damages in excess of available insurance; · FFE shall use reasonable efforts (subject not have provided Purchaser with a certificate, signed by an executive officer of FFE on behalf of FFE, to the proviso in Section 5.6(b)effect that, as of such date, the second, third, fourth and sixth conditions described above have been satisfied; · the following plans and agreements will not have been frozen or additional awards made thereunder: 1994 Incentive Bonus Plan, 2005 Non-Employee Director Restricted Stock Plan, Amended 2005 Executive Cash Bonus Plan, 2005 Stock Incentive Plan, Restated Wrap Plan, and the Discretionary Bonus Plan; and that the following plans and agreements have not been terminated: 1995 Non-Employee Director Stock Option Plan, 1992 Incentive and Non-Statutory Stock Option Plan, 1999 Executive Bonus and Phantom Stock Plan, Employee Stock Option Plan, 2002 Incentive and Nonstatutory Option Plan, Amended 2005 Executive Bonus and Restricted Stock Plan, Management Phantom Stock Plan, Executive Bonus and Phantom Stock Plan, Supplemental Executive Retirement Plan, and 1993 Supplemental Executive Retirement Plan; · FFE’s Rights Agreement is not amended to exclude the transactions contemplated hereunder; · any shareholder signing Tender and Voting Agreements with us shall breach the provisions thereof and such breach, if capable of being cured, shall not have been cured by or before three (3) to cause any such decree, judgment or other order to be vacated or lifted business days prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of Expiration Time; · the Company set forth in this Merger Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been is validly terminated in accordance with its terms; (vi) ; or · there shall have occurred an acceptance been judgments in or settlements of legal proceedings pending against FFE, in the aggregate in excess of $750,000 greater than the aggregate amounts reserved for said judgments and/or settled claims by the Company and its Subsidiaries as of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the OfferJune 30, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) 2013. The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the our sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisitionus, in whole or in part, part at any time and from time to time, in the our sole discretion prior to the expiration of Acquisitionthe Offer, and all conditions (except for the Minimum Condition) may be waived by or us in our sole discretion in whole or in part at any applicable time or from time to time, in each case subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC. The Our failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right and each such right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the OfferOffer and in addition to the Purchaser’s rights to extend, Acquisition amend or terminate the Offer in accordance with the provisions of the Merger Agreement and applicable Law, the Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's obligation to Act, pay for or return any validly tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any validly tendered Shares, if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (ya) the Minimum Condition shall not have been satisfied at the Expiration Date, (b) any waiting period under the HSR Act, or any timing agreement entered into by the parties 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 (the “HSR Condition”), (c) 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 other similar Laws (other than the HSR Act), or any other material consents or approvals of, or material notices to or filings with, any Governmental Entity having jurisdiction over Parent, the Company, their respective Subsidiaries or any of their respective properties, assets, businesses or activities, applicable to the transactions contemplated by the Merger Agreement (“Other Required Governmental Approvals”) shall not have been obtained or made or any waiting period (or extension thereof) or mandated filing with respect to any Other Required Governmental Approval shall not have lapsed or been made either unconditionally or on terms reasonably satisfactory to Parent at or prior to the Expiration Date (collectively, the “Governmental Approval Condition”), or (zd) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occurconditions exist or has occurred and is continuing at the Expiration Date: (i) [reserved]there shall be pending or threatened in writing any suit, action or proceeding by any Governmental Entity of competent jurisdiction against Parent, the Purchaser, the Company or any Company Subsidiary, or otherwise in connection with the Offer or the Merger, (A) challenging the acquisition by Parent or the Purchaser of any Shares pursuant to the Offer or seeking to make illegal, restrain or prohibit the making or consummation of the Offer or the Merger, (B) seeking to prohibit or impose material limitations on the ability of Parent or the Purchaser, or otherwise to render Parent or the Purchaser unable, to accept for payment, pay for or purchase any or all of the Shares pursuant to the Offer or the Merger, or seeking to require divestiture of any or all of the Shares to be purchased pursuant to the Offer or in the Merger, (C) seeking to prohibit or impose any material limitations on the ownership or operation by Parent, the Company or any of their respective Subsidiaries, of all or any portion of the businesses or assets of Parent, the Company or any of their respective Subsidiaries as a result of or in connection with the Offer, the Merger or the other material transactions contemplated by the Merger Agreement, or otherwise seeking to compel Parent, the Company or any of their respective Subsidiaries to divest, dispose of, license or hold separate any material portion of the businesses or assets of Parent, the Company or any of their respective Subsidiaries as a result of or in connection with the Offer, the Merger or the other material transactions contemplated by the Merger Agreement, (D) seeking to prohibit or impose material limitations on the ability of Parent or the Purchaser effectively to acquire, hold or exercise full rights of ownership of the Shares to be purchased pursuant to the Offer or the Merger, including the right to vote the Shares purchased by it on all matters properly presented to the stockholders of the Company, or (E) which otherwise, individually or in the aggregate, results in a Company Material Adverse Effect; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction there shall have enacted, issued, promulgated, enforced or entered be any statute, rule, regulation, executive orderjudgment, decreeorder or injunction enacted, injunction entered, enforced, promulgated or other order 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 material 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 the HSR Act or similar waiting periods with respect to the Other Required Governmental Approvals, that (x) has had or would reasonably be expected to have, individually or in effect at the Tender Offer Purchase Time and which aggregate, directly or indirectly, any of the consequences referred to in clauses (A) makes the acceptance for payment ofthrough (E) of paragraph (i) above, or (y) has the payment foreffect of making the Offer, some the Merger or all of any other material transaction contemplated by the Shares Merger Agreement illegal or which has the effect of prohibiting or otherwise prohibits preventing the consummation of the Offer, the Merger or any other transaction contemplated by the Merger Agreement; (iii) (A) any representation or warranty of the other transactions contemplated herebyCompany contained in Sections 3.2 or 3.3 of the Merger Agreement shall fail to 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 date or time), or (B) prohibits Acquisition from operating any other representation or deriving benefits from the majority of the value of the operations warranty of the Company contained in the Agreement (without giving effect to any references to any Company Material Adverse Effect or materiality qualifications and its subsidiaries taken as a whole to operate other qualifications based upon the Company; provided, however, that the parties concept of materiality or similar phrases contained therein) shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order fail to be vacated true and correct in any respect as of the date of the Merger Agreement or lifted prior 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 September 30a specific date or time (which need only be true and correct as of such date or time), 2000; (iii) [reserved]and except as does not, individually or in the aggregate with all other failures to be true or correct, result in a Company Material Adverse Effect; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed failed, in any respect material respect, to perform or to comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at under the Merger Agreement on or prior to the Acceptance Time and such time except, where the breach or failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, shall not have a Material Adverse Effectbeen cured; (v) since the date of the Merger Agreement, a Company Material Adverse Effect shall have occurred; (vi) the Purchaser shall have failed to receive a certificate of the Company, executed by the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of the Expiration Date, to the effect that the conditions set forth in paragraphs (iii), (iv) and (v) of this Annex I have not occurred; or (vii) the Merger Agreement shall have been terminated in accordance with its terms; . The foregoing conditions (viincluding those set forth in clauses (a), (b) there shall have occurred an acceptance by the Company of a Superior Proposal; and (viic) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to initial paragraph) are for the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment sole benefit of Parent and Acquisition, in any such case, the Purchaser and may be asserted by Parent or the Purchaser regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than by Parent or the Minimum Condition) by Acquisition, Purchaser in whole or in part, part at any time and from time to timetime in their sole discretion, in each case subject to the sole discretion terms of Acquisitionthe Merger Agreement. Any reference in this Annex I or the Merger Agreement to a condition or requirement being satisfied shall be deemed to be satisfied if such condition or requirement is so waived. The foregoing conditions shall be in addition to, and not a limitation of, the rights of Parent 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 Parent or Acquisition (or any affiliate of Acquisition) the Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right and each such right will shall be deemed an ongoing right which may be asserted at any time and from time to time. The capitalized terms used in this Annex I and not defined in this Annex I shall have the meanings set forth in the Agreement and Plan of Merger (the “Merger Agreement”), dated as of October 6, 2008, by and among Xxx Xxxxx and Company, Alaska Acquisition Corporation and ImClone Systems Incorporated. 1. The name of this corporation is IMCLONE SYSTEMS INCORPORATED (the “Corporation”). The original Certificate of Incorporation of this Corporation was filed with the Secretary of State of the State of Delaware on April 26, 1984 under the name “IMCLONE SYSTEMS INCORPORATED.” 2. This Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Section 242 and 245 of the General Corporation Laws of the State of Delaware (the “DGCL”) by the Board of Directors and the Stockholders of the Corporation. 3. The Certificate of Incorporation of the Corporation is hereby amended and restated to read as follows: I. The name of this Corporation is IMCLONE SYSTEMS INCORPORATED. II. The address of the Corporation’s registered office in the State of Delaware is 000 Xxxxx XxXxxx Xxxxxxx, Xxxxx, XX, Xxxxxx of Xxxx, 00000, and the name of its registered agent at such address is National Corporate Research, Ltd. III. The purpose of the Corporation is to engage in any lawful act or activity for which a Corporation may be organized under the General Corporation Law of the State of Delaware. IV. The total number of shares of all classes of stock that the Corporation shall have authority to issue is 1,000 shares, all of which are Common Stock with a par value of $0.01 per share. V. In furtherance and not in limitation of the powers conferred by statute, the Board of Directors is expressly authorized to make, alter or repeal the bylaws of the Corporation. VI. Election of directors need not be by written ballot unless the bylaws of the Corporation shall so provide. (a) To the full extent permitted by the Delaware General Corporation Law as the same exists or as may hereafter be amended, a director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. (b) The Corporation shall indemnify to the full extent permitted by law any person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he, his testator or intestate is or was a director, officer or employee of the Corporation or any predecessor of the Corporation or serves or served any other enterprise as a director, officer or employee at the request of the Corporation or any predecessor to the Corporation. (c) Neither any amendment nor repeal of this Article VII, nor the adoption of any provision of this Corporation’s Certificate of Incorporation inconsistent with this Article VII, shall eliminate or reduce the effect of this Article VII in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Article VII, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision. VIII. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute, and all rights conferred upon the stockholders herein are granted subject to this reservation.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition shall Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's the obligation of Purchaser to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)), pay forfor any Shares that are validly tendered pursuant to the Offer and not validly withdrawn prior to the Expiration Time, and may delay extend, terminate or amend the acceptance for payment of orOffer, subject in each case, only to the restrictions referred extent provided by the Merger Agreement, in the event that, as of immediately prior to above, the payment for, any tendered Shares, if Expiration Time: (wA) any waiting periods period (and extensions thereof) applicable to the Offer transactions contemplated by the Merger Agreement under the HSR Act shall has not have expired or been terminated or shall there is in effect any voluntary agreement between Xxxxxxx & Xxxxxxx and Momenta, on the one hand, and the FTC or the DOJ, on the other hand, pursuant to which Xxxxxxx & Xxxxxxx and Momenta have agreed not to consummate the Offer or the Merger (the “Antitrust Condition”); (B) as of immediately prior to the Expiration Time, there have expired not been validly tendered (and any required approvals or notices under not withdrawn in accordance with the Bank Actterms of the Offer), and received by the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, Depositary in the aggregate, ninety percent (90%accordance with Section 251(h) of the Company's DGCL (as described in more detail in Section 3—“Procedures for Accepting the Offer and its subsidiary's average mortgage origination volume for Tendering Shares”), a number of Shares that, together with the period 1998 Shares then owned by Xxxxxxx & Xxxxxxx, Purchaser and 1999 shall not have been obtainedtheir respective affiliates (if any), and, in represent at least a majority of all then outstanding Shares on a fully-diluted basis (the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied“Minimum Condition”); or (xC) any of the consents following has occurred and continues to exist: 1. any governmental authority of competent and applicable jurisdiction has (i) enacted, issued or approvals promulgated any law that is in effect as of the Expiration Time and has the effect of making the transactions contemplated by the Merger Agreement illegal or the effect of prohibiting or otherwise preventing the transactions contemplated by the Merger Agreement or (ii) issued or granted any Person other than order, that is in effect as of the Expiration Time and has the effect of making the transactions contemplated by the Merger Agreement illegal or the effect of prohibiting or otherwise preventing the transactions contemplated by the Merger Agreement (we refer to a Governmental Entitylaw or order as described in this Item (C)(1) as a “Legal Restraint”) (the “Restraint Condition”); 2. there is any pending legal proceeding under any U.S. antitrust law brought by any applicable governmental authority that (i) challenges or seeks to make illegal, prohibit or otherwise prevent the transactions contemplated by the Merger Agreement or (ii) seeks to impose any Burdensome Condition (as defined in the Merger Agreement and described in more detail in Section 11—“The Transaction Agreements—Antitrust Filings”) thereon (the “Litigation Condition”); (i) the representation and warranty of Momenta with respect to the absence of a Company Material Adverse Effect (as defined in the Merger Agreement and described in more detail in Section 11—“The Transaction Agreements—Representations and Warranties”) from December 31, 2019 until the date of the Merger Agreement is not true and correct in all respects as of immediately prior to the Expiration Time as though made as of that time (and the Company Material Adverse Effect described therein is continuing as of immediately prior to the Expiration Time); (ii) certain specified representations and warranties of Momenta with respect to capitalization are not true and correct in all respects as of immediately prior to the Expiration Time as though made as of that time (except to the extent expressly made as of an earlier date, in connection which case as of that earlier date), except for any de minimis inaccuracies; (iii) certain specified representations and warranties of Momenta with respect to organization, good standing, capitalization, subsidiaries, corporate power and authority to enter into the executionMerger Agreement, delivery stockholder approval of the Merger Agreement, Momenta’s brokers and performance other advisors and anti-takeover laws (without giving effect to any qualification as to “materiality” or Table of this Contents “Company Material Adverse Effect” qualifiers set forth therein) are not true and correct in all material respects as of immediately prior to the Expiration Time as though made as of that time (except to the extent expressly made as of an earlier date, in which case as of that earlier date); or (iv) any other representation or warranty of Momenta set forth in Article IV of the Merger Agreement shall (without giving effect to any qualification as to “materiality” or “Company Material Adverse Effect” qualifiers set forth therein) is not have been obtained; true and correct in all respects as of immediately prior to the Expiration Time as though made as of that time (except to the extent expressly made as of an earlier date, in which case as of that earlier date), except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be so true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would notnot have, individually or in the aggregate, have a Company Material Adverse EffectEffect (the Offer Conditions set forth in clauses (i) through (iv), the “Representations Condition”); 4. Momenta has breached or failed to perform in any material respect any agreement or covenant to be performed, or complied with, by it under the Merger Agreement prior to the Expiration Time and the breach or failure has not been cured as of immediately prior to the Expiration Time (v) this the “Covenant Condition”); 5. a Company Material Adverse Effect has arisen or occurred following the execution and delivery of the Merger Agreement shall and is continuing as of immediately prior to the Expiration Time (the “MAE Condition”); 6. Momenta has not delivered to Xxxxxxx & Xxxxxxx a certificate, signed on behalf of Momenta by its Chief Executive Officer, certifying that the Representations Condition, the Covenant Condition and the MAE Condition have been satisfied as of immediately prior to the Expiration Time; or 7. the Merger Agreement has been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by . The foregoing conditions, which we refer to collectively as the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer“Offer Conditions”, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Xxxxxxx & Xxxxxxx and Purchaser, may be asserted by Acquisition regardless of any circumstances giving rise to any condition Xxxxxxx & Xxxxxxx or Purchaser and may be waived (other than the Minimum Condition) by Acquisition, Xxxxxxx & Xxxxxxx and Xxxxxxxxx in whole or in part, part at any time and from time to time, time in the sole discretion of AcquisitionXxxxxxx & Xxxxxxx and Purchaser, subject in each case to the terms of the Merger Agreement and the applicable rules and regulations of the SEC. The failure by Parent Xxxxxxx & Xxxxxxx or Acquisition (or any affiliate of Acquisition) Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any right such right, and each such right will shall be deemed an ongoing right which may be asserted at any time and from time to time. Purchaser expressly reserves the right to waive any of the Offer Conditions and make any changes to the terms and conditions of the Offer, including the Offer Conditions. However, without the prior written consent of Momenta, we are not permitted to (a) waive or modify the Minimum Condition, the Antitrust Condition or the Restraint Condition, (b) change the form of consideration payable in the Offer, (c) decrease the Offer Price, (d) decrease the number of Shares sought to be purchased in the Offer, (e) extend the Offer or the Expiration Time except as permitted under the Merger Agreement, (f) impose conditions to the Offer other than the Offer Conditions or (g) amend any term or condition of the Offer in any manner that is adverse to the Momenta stockholders.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition shall and in addition to (and not in limitation of) Purchaser's rights to extend and amend the Offer at any time in its sole discretion in accordance with the terms (and subject to the limitations) of the Merger Agreement, Purchaser will not be required to accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer)Act, pay for, and may delay the acceptance for payment of of, or, subject to the restrictions restriction referred to above, the payment for, any validly tendered SharesShares (whether or not any Shares theretofore have been accepted for payment or paid for pursuant to the Offer), and may terminate the Offer as to any Shares not then paid for, if (wi) any waiting periods applicable immediately prior to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank ActExpiration Date, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall has not have been satisfied or (zii) at any time on or after the date of this Agreement June 13, 2003 and before the time of acceptance of such Shares for payment pursuant immediately prior to the OfferExpiration Date, any of the following events shall occur: occur (i) [reserved]; (ii) from the date other than as a direct or indirect result of this Agreement until the Tender Offer Purchase Time, any Governmental Entity action or court of competent jurisdiction shall have enacted, issued, promulgated, enforced inaction by Purchaser or entered Xx. Xxxxxxx): o There has been any statute, rule, regulation, executive orderjudgment, decreeorder or injunction promulgated, injunction entered, enforced, enacted, issued or other order which is in effect at rendered applicable to the Tender Offer Purchase Time and or the Merger by any domestic or foreign federal or state governmental regulatory or administrative agency or authority or court or legislative body or commission which (Ai) prohibits or imposes any material limitations on, Purchaser's ownership or operation of all or a material portion of the Company's businesses or assets, (ii) prohibits or makes illegal the acceptance for payment, payment offor or purchase of Shares or the consummation of the Offer or the Merger, (iii) results in a material delay in or restricts the ability of Purchaser, or the payment forrenders Purchaser unable, to accept for payment, pay for or purchase some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated herebyShares, or (Biv) prohibits Acquisition from operating or deriving benefits from imposes material limitations on the majority ability of Purchaser effectively to exercise full rights of ownership of the value of Shares, including, without limitation, the operations of right to vote the Company and its subsidiaries taken as a whole Shares purchased by it on all matters properly presented to operate the Company's stockholders; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the o The representations and warranties of the Company contained in the Merger Agreement and in any document delivered in connection with the Merger Agreement are not true and correct (without giving effect to any qualification as to "materiality" set forth in this Agreement shall the Merger Agreement) both when made and at and as of the Expiration Date, as if made at and as of such time (except to the extent such representations and warranties speak of a specified earlier date, in which case such representations and warranties are not be true and correct on the date as of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligationsuch date), agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, except where the failure of such representations and warranties to be so true and correct (without regard giving effect to materiality qualifications therein containedany qualification as to "materiality" set forth in the Merger Agreement) would not reasonably be expected to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would nothave, individually or in the aggregate, have a Company Material Adverse Effect; ; o The Board, based on the recommendation of the Special Committee, has (vin-cluding by amendment to the Schedule 14D-9) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn withdrawn, amended or modified in a manner adverse to Parent Purchaser its approval or recommendation of the Offer, shall have recommended the Merger or the Merger Agreement or has publicly announced or re-solved to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect do any of the foregoing; ; o The Company, acting through the Board (ixas agreed to by the Special Committee), and Xxxxxxxxx and Xx. Xxxxxxx have agreed that Purchaser and Xx. Xxxxxxx will terminate the Offer or postpone the acceptance for payment of or payment for Shares thereunder; o Any of the following have occurred: (1) [reserved]; any general suspension of trading in, or limitation on prices for, securities on the NYSE, the American Stock Exchange or the Nasdaq for a period in excess of 24 hours (xexcluding suspensions or limitations resulting solely from physical damage or interference with such exchanges not related to market conditions), (2) [reserved]; a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States (xiwhether or not mandatory), (3) [reserved]; a commencement or material worsening of a war, armed hostilities or other national or international calamity directly or indirectly involving the United States or any terrorist activities which would reasonably be expected to have a Company Material Adverse Effect or materially and adversely affect the ability of financial institutions in the United States to extend credit or syndicate loans, other than the current U.S. military operations in Iraq, (xii4) from any material limitation (whether or not mandatory) by any Governmental Entity on the extension of credit generally by banks or other financial institutions, or (5) a change in general financial, bank or capital market conditions which materially and adversely affects the ability of financial institutions in the United States to extend credit or syndicate loans; o The Company has not performed, in all material respects, all of its covenants and agreements contained in the Merger Agreement that are required to be performed by the Company at or prior to the Expiration Date; o From the date of this the Merger Agreement until through the Tender Offer Purchase TimeExpiration Date, there shall have has occurred the commencement of any event that has had a war having a Company Material Adverse Effect on the CompanyEffect; which, o The death of Xx. Xxxxxxx; or o The Merger Agreement has been terminated in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed accordance with the Offer and/or with such acceptance for payment or payments. (b) its terms. The above conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Purchaser and may Xx. Xxxxxxx and may, subject to the terms (and limitations) of the Merger Agreement, be asserted or, if applicable, waived by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisitionthem, in whole or in part, at any time and from time to time, time prior to the Expiration Date in the sole discretion of AcquisitionPurchaser and Xx. Xxxxxxx. The failure by Parent Purchaser or Acquisition (or any affiliate of Acquisition) Xx. Xxxxxxx 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 will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right which that may be asserted at any time and from time to time. Notwithstanding the fact that Purchaser and Xx. Xxxxxxx reserve the right to assert the occurrence of a condition following acceptance of properly tendered Shares for payment but prior to payment for such Shares, Purchaser will either promptly pay for such Shares or promptly return such Shares. A public announcement will be made of a material change in, or waiver of, such conditions, and the Offer may, in certain circumstances, be extended in connection with any such change or waiver. All conditions must be satisfied or waived prior to the commencement of any Subsequent Offering Period.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition subject to the terms of the Agreement, Merger Sub shall not be required to accept for payment or, exchange or exchange or deliver any shares of Manpower Common Stock for (subject to any applicable rules and regulations of the SEC SEC, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to Acquisition's Merger Sub’s obligation to pay for or return tendered Shares promptly shares of Company Common Stock after the termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment ) any shares of or, subject to the restrictions referred to above, the payment for, any tendered SharesCompany Common Stock tendered, if by the Appointment Time, (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y1) the Minimum Condition shall not have been satisfied satisfied, (2) the applicable waiting period under the HSR Act shall not have expired or been terminated or the applicable waiting periods, consents or clearances under the antitrust or competition Laws of any other jurisdiction shall not have expired, been terminated or been obtained, (3) the Registration Statement shall not have become effective under the Securities Act or shall be the subject of any stop order or proceedings seeking a stop order, (4) the shares of Manpower Common Stock to be issued in the Offer and the Merger shall not have been approved for listing on the NYSE, subject to official notice of issuance, and shall not be exempt from such requirement under then applicable laws, regulations and rules of the NYSE, (5) Manpower shall not have received (or Manpower shall have received and Xxxxxxx & Xxxx, S.C. shall have subsequently rescinded) an opinion of Xxxxxxx & Xxxx, S.C., in form and substance reasonably satisfactory to Manpower, on the basis of reasonable and customary representations and assumptions set forth in such opinion or in a certificate delivered by an officer of the Company or Manpower, and assuming that the Merger will occur under the terms set forth in this Agreement, to the effect that the Transaction will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, (6) the Company shall not have received (or the Company shall have received and Xxxxxx Xxxxxxxx LLP, shall have subsequently rescinded) an opinion of Xxxxxx Xxxxxxxx LLP, in form and substance reasonably satisfactory to the Company, on the basis of reasonable and customary representations and assumptions set forth in such opinion or in a certificate delivered by an officer of the Company or Manpower, and assuming that the Merger will occur under the terms set forth in this Agreement, to the effect that the Transaction will be treated for federal income tax purposes as a reorganization within the meaning of Section 368(a) of the Code, or (z7) at any time on or after the date of this the Agreement and before prior to the time acceptance for exchange of acceptance shares of such Shares for payment Company Common Stock pursuant to the Offer, any of the following events shall occurconditions exist and are continuing: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions term of the OfferOffer or this Agreement, Acquisition Sub shall not be required to, and Parent shall not be required to cause Acquisition Sub to, accept for payment or, and pay for any shares of Company Common Stock tendered pursuant to the Offer if: (a) there shall not be validly tendered and not validly withdrawn prior to the expiration of the Offer a number of shares of Company Common Stock (excluding shares of Company Common Stock subject to any applicable rules and regulations notices of guaranteed delivery not delivered to or on behalf of the SEC including Rule 14e-l(cAcquisition Sub) under that when added to the Exchange Act (relating to Acquisition's obligation to pay for or return tendered Shares promptly after termination or withdrawal number of shares owned by Acquisition Sub represent a majority of the OfferFully Diluted Shares as of the expiration of the Offer (the “Minimum Tender Condition”), pay for, and may delay ; (b) the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any tendered Shares, if (w) any waiting periods period applicable to the purchase of shares of Company Common Stock pursuant to the Offer and the consummation of the Merger under the HSR Act (or any extension thereof) shall not have been terminated neither expired nor terminated; or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (xc) any of the consents following conditions shall have occurred and be continuing as of the expiration of the Offer: (i) (A) there shall be any Order (whether temporary, preliminary or approvals permanent in nature) issued by any court of competent jurisdiction or other restraint or prohibition of any Person other than a Governmental EntityAuthority of competent jurisdiction in effect, or any Law enacted, entered, promulgated, enforced or deemed applicable by any Governmental Authority of competent jurisdiction and remaining in effect, that, in connection any such case, prohibits or makes illegal the consummation of the Offer or the Merger or (B) there shall be pending any Legal Proceeding brought by any Governmental Authority of competent jurisdiction that has a substantial likelihood of success (1) seeking to make illegal, restrain or prohibit the making or consummation of the Offer or the Merger in accordance with the execution, delivery and performance terms of this Agreement or (2) which, if successful, would reasonably be expected to result in a Substantial Detriment; (ii) (x) the representations and warranties of the Company contained in Section 4.7 (Capitalization), Section 4.8(b) (Subsidiaries), and Section 4.27 (Brokers) shall not have been obtained; be true and correct, except where for any de minimis inaccuracies, as of such time (except to the failure to have obtained any extent made as of a specific date, in which case as of such consent or approval would not have a Material Adverse Effectspecific date only); (y) the Minimum Condition representations and warranties of the Company contained in the first sentence of Section 4.1 (Organization), Section 4.2 (Corporate Power; Enforceability), Section 4.4 (Voting Requirements), Section 4.5(a) (Non-Contravention) and the second sentence of Section 4.13(a) (Absence of Certain Changes) shall not have been satisfied be true and correct in all respects as of such time (except to the extent made as of a specific date, in which case as of such specific date only); or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or all other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date (disregarding all qualifications or limitations as to “materiality,” “Company Material Adverse Effect” and words of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligationsimilar import set forth therein) as of such time, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, except where the failure of such representations and warranties (without regard to materiality qualifications therein contained) to be so true and correct, or the performance or compliance with such obligations, agreements or covenants, correct would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect and except, in each case, to the extent such representations and warranties are made as of a specific date (in which case such representations and warranties shall not be true and correct (subject to such qualifications) as of such specific date only); (iii) the Company shall have failed to perform or comply in all material respects with its obligations required to be performed or complied with by it under this Agreement; (iv) since the date of this Agreement, there shall have occurred any change, circumstance, event or occurrence that has had or would reasonably be expected to have a Company Material Adverse Effect;; or (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from . On the date of this Agreement until the Tender Offer Purchase TimeClosing, there the Company shall have occurred the commencement of deliver to Parent a war having a Material Adverse Effect certificate executed on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless behalf of the circumstances giving rise to any such condition, makes it inadvisable to proceed with Company by the Offer and/or with such acceptance for payment chief executive officer or payments. (b) The the chief financial officer of the Company certifying that none of the conditions set forth in Section 6.1(aclauses (c)(ii), (c)(iii), and (c)(iv) (other than the Minimum Condition) are for the sole benefit of Acquisition above shall have occurred and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any continuing as of the foregoing rights will not be deemed a waiver expiration of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to timethe Offer.

CONDITIONS TO THE OFFER. Subject to the provisions of the Support Agreement to which this schedule is attached (athe “Agreement”) Notwithstanding any other provisions or of the Offer, Acquisition the Offeror shall have the right to withdraw or terminate the Offer (or amend the Offer to postpone taking up and paying for any Company Shares deposited under the Offer), and shall not be required to accept for payment orpayment, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to pay for take up, purchase or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, or extend the period of time during which the Offer is open and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment postpone taking up and paying for, any tendered Company Shares deposited under the Offer, unless all of the following conditions are satisfied or waived by the Offeror at or prior to the Expiry Time: (a) there shall have been validly deposited under the Offer and not withdrawn that number of Company Shares as together with the Company Shares owned by Agnico-Eagle and any affiliates constituting: (i) at least 66-2/3% of the Company Shares calculated on a fully-diluted basis (the “Minimum Tender Condition”); and (ii) 50% plus one of the Company Shares calculated on a fully-diluted basis the votes attached to which would be included in the minority approval of a second-step business combination pursuant to Policy Statement Q-27 and Rule 61-501; (b) all regulatory approvals, reviews or decisions (including those of any stock exchanges or other securities regulatory authorities and including the Competition Act Approval) which, in the Offeror’s judgment, acting reasonably, are necessary or desirable in connection with the Offer (including a Subsequent Acquisition Transaction) shall have been obtained on terms satisfactory to the Offeror; (c) (i) no act, action, suit or proceeding shall have been threatened or taken before or by any domestic or foreign court or tribunal or governmental agency or other regulatory authority or administrative agency or commission or by any elected or appointed public official or private person (including any individual, corporation, firm, group or other entity) in Canada or elsewhere, whether or not having the force of law, and (ii) no law, regulation or policy shall have been proposed, enacted, promulgated or applied: (A) to cease trade, enjoin, prohibit or impose material limitations, damages or conditions on the purchase by or the sale to the Offeror of the Company Shares or the right of the Offeror to own or exercise full right of ownership of the Company Shares; or (B) which, if (w) any waiting periods applicable to the Offer were consummated, could, in the Offeror’s reasonable judgment constitute a Company Material Adverse Effect or materially adversely affect the Offeror’s ability to effect a Subsequent Acquisition Transaction; (d) there shall not exist any prohibition at law against the Offeror making the Offeror take up and pay for any shares deposited under the HSR Act Offer; (e) there shall not exist or have occurred (or, if there does exist or shall have previously occurred, there shall not have been terminated disclosed, generally by way of press release and material change report or to the Offeror in writing) any change (or any condition, event or development involving a prospective change) in the business, operations, assets, capitalization, financial condition, prospects, licences, permits, rights, privileges or liabilities, whether contractual or otherwise, of the Company or any of its subsidiaries, associates or entities which, in the Offeror’s judgment, would reasonably be expected to have a Company Material Adverse Effect or may be considered to be significant to a purchaser of Company Shares; (f) the Offeror shall not have expired and become aware of any untrue statement of a material fact, or an omission to state a material fact that is required approvals to be stated or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, that is necessary to make a statement not misleading in the aggregate, ninety percent (90%) light of the Company's circumstances in which it was made and its subsidiary's average mortgage origination volume for at the period 1998 and 1999 date it was made (after giving effect to all subsequent filings in relation to all matters covered in earlier filings) in any document filed by or on behalf of the Company with any regulatory authority in Canada or elsewhere, including any annual report, financial statements, material change report, press release or management proxy circular or in any document so filed or released by the Company to the public; (g) the Board of Directors of the Company shall not have been obtained, and, in withdrawn any recommendation made by it that holders of Company Shares accept the case of any approval, authorization Offer or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained changed any such consent recommendation in a manner that has substantially the same effect or approval would issued a recommendation that holders of Company Shares not have a Material Adverse Effect; accept the Offer; (yh) the Minimum Condition Board of Directors shall not have been satisfied waived, suspended or (z) at any time on or after otherwise rendered the date of this Agreement and before the time of acceptance of such Shares for payment pursuant Shareholder Rights Plan ineffective with respect to the Offer, any Compulsory Acquisition or Subsequent Acquisition Transaction and any acquisition of Company Shares thereunder and any other actions taken by the following events shall occur:Offeror in furtherance thereof; (i) [reserved]the Company shall not have entered into a Proposed Agreement; (iij) from the date of Company shall have complied in all material respects with its covenants and obligations under this Agreement until to be complied with at or prior to the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Expiry Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in under this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any all material obligation, agreement or covenant required by this Agreement to be performed or complied with by it respects as if made at or prior to such time except, where the failure except for those expressly stated to speak as of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effectan earlier time; (v) this Agreement shall have been terminated in accordance with its terms; (vik) there shall have occurred an acceptance by the Company not occurred, developed or come into effect or existence any effect, action, state, condition or major financial occurrence of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn national or modified in a manner adverse to Parent its approval international consequence or recommendation any law, regulation, action, government regulation, enquiry or other occurrence of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; nature whatsoever which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless opinion of the circumstances giving rise to any such Offeror, materially adversely affects or involves the financial markets in Canada or the United States generally or the financial condition, makes it inadvisable to proceed with business, operations, assets, affairs or prospects of the Offer and/or with such acceptance for payment Company or payments.any of its subsidiaries, associates or entities; and (bl) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will Lock-up Agreement shall not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to timehave been terminated.

CONDITIONS TO THE OFFER. (a) The Offer is subject to the Minimum Condition being satisfied by the Expiration Date or such later date as the Offer may be extended in accordance with the terms of the Merger Agreement. Purchaser has agreed that if all of the conditions set forth herein have not been satisfied on any scheduled Expiration Date then, provided that all such conditions are reasonably capable of being satisfied, Purchaser shall extend the Offer from time to time until such conditions are satisfied or waived, provided that Purchaser shall not be required to extend the Offer beyond March 1, 1999. Notwithstanding any other provisions provision of the Offer, Acquisition subject to the terms of the Merger Agreement, Purchaser shall not be required to accept for payment or, subject to or pay for any Shares if (i) any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any tendered Shares, if (w) any waiting periods applicable to the Offer period under the HSR Act shall has not have expired or been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (zii) at any time on or after the date of this the Merger Agreement and before the time of acceptance of such Shares for payment pursuant prior to the OfferExpiration Date, any of the following events shall occur: (a) there shall be threatened or pending any suit, action or proceeding by a federal, state or foreign governmental entity (other than a suit, action or proceeding based on facts solely relating to Parent or Purchaser), (i) [reserved]; in connection with the Transactions, seeking to prohibit or impose any material limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective Subsidiaries or Affiliates) of all or a material portion of their or the Company's businesses or assets, (ii) from in connection with the date Transactions, seeking to compel Parent or Purchaser or their respective Subsidiaries and Affiliates to dispose of this Agreement until the Tender Offer Purchase Time, or hold separate any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all material portion of the business or assets of the Company or Parent and their respective Subsidiaries, in each case taken as a whole, (iii) challenging the acquisition by Parent or Purchaser of any Shares illegal pursuant to the Offer, (iv) seeking to restrain or otherwise prohibits prohibit the making or consummation of the Offer, Offer or the Merger or the performance of any of the other transactions contemplated herebyTransactions, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by seeking to obtain from the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall any damages that would be reasonably likely to have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in (vi) seeking to impose material limitations on the reasonable judgment ability of Parent and AcquisitionPurchaser, in any such caseor rendering Purchaser unable, and regardless to accept for payment, pay for or purchase some or all of the circumstances giving rise Shares pursuant to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than and the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.Merger,

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition but subject to compliance with the terms and conditions of that certain Agreement and Plan of Merger, dated as of August 19, 2020 (the “Agreement”), by and among JXXXXXX & JXXXXXX, a New Jersey corporation (“Parent”), VIGOR SUB, INC., a Delaware corporation and a wholly owned Subsidiary of Parent (“Merger Sub”), and MOMENTA PHARMACEUTICALS, INC., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in the Agreement), and in addition to (and not in limitation of) the obligations of Merger Sub to extend the Offer pursuant to the terms and conditions of the Agreement, Merger Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC (including Rule 14e-l(c14e-1(c) promulgated under the Exchange Act (relating to Acquisition's the obligation of Merger Sub to pay for or return tendered Company Shares promptly after termination or withdrawal of the Offer)), pay forfor any Company Shares that are validly tendered pursuant to the Offer and not validly withdrawn prior to the Expiration Time, and may delay extend, terminate or amend the acceptance for payment of orOffer, subject in each case, only to the restrictions referred extent provided by the Agreement, in the event that, as of immediately prior to above, the payment for, any tendered Shares, if Expiration Time (wA) any waiting periods period (and extensions thereof) applicable to the Offer transactions contemplated by the Agreement under the HSR Act shall not have expired or been terminated or there shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force effect any voluntary agreement between Parent and effect the Company on the one hand, and all conditions applicable thereto shall the FTC or the DOJ, on the other hand, pursuant to which Parent and the Company have agreed not have been satisfiedto consummate the Offer or the Merger; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yB) the Minimum Condition shall not have been satisfied satisfied; or (zC) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant to the Offer, any of the following events shall occur: (i) [reserved]; (ii) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance by the Company of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse and continue to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.exist:

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions of the Offer, Acquisition and in addition to (and not in limitation of) Purchaser's rights to extend and amend the Offer at any time in its sole discretion (subject to the provisions of the Merger Agreement), Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC Commission, including Rule 14e-l(c14e-1(c) under the Exchange Act (relating to AcquisitionPurchaser's obligation to pay for or return tendered Shares promptly after termination or withdrawal of the Offer), pay for, and may delay the acceptance for payment of or, subject to the restrictions restriction referred to above, the payment for, any tendered Shares, and may terminate or amend the Offer as to any Shares not then paid for, if (wi) any applicable waiting periods applicable to the Offer period under the HSR Act shall has not have been terminated expired or shall not have expired and any required approvals or notices under the Bank Actterminated, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (yii) the Minimum Condition shall has not have been satisfied satisfied, or (ziii) at any time on or after the date of this the Merger Agreement and before the time of acceptance of such Shares for payment pursuant to the OfferExpiration Date, any of the following events shall occuroccur or shall be determined by Purchaser to have occurred: (i) [reserved]; there shall be threatened, instituted or pending any suit, action or proceeding by any Governmental Body or (ii) from there shall be instituted or pending any suit, action or proceeding before any court which in the date good faith judgement of this Agreement until the Tender Offer Purchase Time, Parent and Purchaser is likely to result in any Governmental Entity change or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment of, or the payment for, some or all of the Shares illegal or otherwise prohibits consummation of the Offer, the Merger or any development that, insofar as can reasonably be foreseen, is likely to result in any change or effect) that is materially adverse to the business, properties, assets, prospects, financial condition or results of the other transactions contemplated hereby, or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations of the Company and its subsidiaries taken as a whole to operate or the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties ability of the Company set forth to consummate the Merger Agreement, the Company Option Agreement, the Offer, the acquisition of shares pursuant to the Offer, the Shareholder Agreements, the Company Option Agreement and the Merger (a "Material Adverse Effect" or "Material Adverse Change"), in this Agreement shall not be true each case of (i) or (ii), (A) seeking to prohibit or impose any limitations on Parent's or Purchaser's ownership or operation (or that of any of their respective subsidiaries or Affiliates) of all or a material portion of their or the Company's businesses or assets, or to compel Parent or Purchaser or their respective subsidiaries and correct on Affiliates to dispose of or hold separate any material portion of the date business or assets of this the Company or Parent and their respective subsidiaries, in each case taken as a whole, (B) challenging the acquisition by Parent or Purchaser of any Shares under the Offer or pursuant to the Company Option Agreement or the Company shall have breached Shareholder Agreements seeking to restrain, prohibit or failed in any respect to perform delay the making or comply with any material obligation, agreement consummation of the Offer or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, Merger or the performance or compliance with such obligations, agreements or covenants, would not, individually or in of any of the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi) there shall have occurred an acceptance other transactions contemplated by the Merger Agreement, the Company Option Agreement or the Shareholder Agreements, or seeking to obtain from the Company, Parent or Purchaser any damages that are material in relation to the Company and its subsidiaries taken as a whole, (C) seeking to impose material limitations on the ability of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn Parent or modified in a manner adverse Purchaser, or rendering Parent or Purchaser unable, to Parent its approval accept for payment, pay for or recommendation purchase some or all of the OfferShares pursuant to the Offer and the Merger, shall have recommended (D) seeking to impose limitations on the ability of Purchaser or Parent effectively to exercise full rights of ownership of the Shares, including, without limitation, the right to vote the Shares purchased by it on all matters properly presented to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Company; which, in the reasonable judgment of Parent and Acquisition, in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisition. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any of the foregoing rights will not be deemed a waiver of any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.'s

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions provision of the Offer, Acquisition Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-l(c) under the Exchange Act (relating to Acquisition's obligation to or pay for or return any Shares tendered Shares promptly after termination or withdrawal of pursuant to the Offer), pay for, and may delay terminate or amend the Offer and may postpone the acceptance for payment of or, subject to the restrictions referred to above, the and payment for, any tendered Sharesfor Shares tendered, if (wi) any waiting periods applicable to the Offer under condition (the HSR Act "Minimum Condition") that a number of Shares which constitutes at least a majority of each class the Shares outstanding on a fully diluted basis not then owned, beneficially or of record, by Purchaser shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto tendered shall not have been satisfied; , (xii) any Purchaser shall not have obtained sufficient financing to enable it to purchase the Shares to be purchased by it and to pay fees and expenses of the consents Offer and the Merger, including, without limitation, fees and expenses incurred or approvals of any Person other than a Governmental Entity, to be incurred in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where financing (the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y"Financing Condition") the Minimum Condition shall not have been satisfied or (ziii) at any time on or after the date of this Agreement the Merger Agreement, and before prior to the time of acceptance of such Shares for payment pursuant to the Offerof Shares, any of the following events conditions shall occurexist: (a) there shall have been instituted or be pending any action or proceeding before any court or governmental, administrative or regulatory authority or agency, domestic or foreign, (i) [reserved]challenging or seeking to make illegal, materially delay or otherwise directly or indirectly restrain or prohibit or make materially more costly the making of the Offer, the acceptance for payment of, or payment for, any Shares by Purchaser or the consummation of any other Transaction, or seeking to obtain material damages in connection with any Transaction; (ii) seeking to prohibit or limit materially the ownership or operation by Purchaser of all or any material portion of the business or assets of the Company, or to compel Purchaser, to dispose of or hold separate all or any material portion of the business or assets of Purchaser as a result of the Transactions; (iii) seeking to impose or confirm limitations on the ability of Purchaser or any of its Affiliates to exercise effectively full rights of ownership of any Shares, including, without limitation, the right to vote any Shares acquired by Purchaser pursuant to the Offer or otherwise on all matters properly presented to the Company's stockholders, including, without limitation, the approval and adoption of the Merger Agreement and the Transactions, (iv) seeking to require divestiture by Purchaser or any of its Affiliates of any Shares; or (v) which is reasonably likely to materially adversely affect the business, operations, properties, condition (financial or otherwise), assets or liabilities (including, without limitation, contingent liabilities) or prospects of Purchaser or any of its Affiliates; (iib) from the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction there shall have enactedbeen any action taken, issued, promulgated, enforced or entered any statute, rule, regulation, executive orderlegislation, decreeinterpretation, judgment, order or injunction enacted, entered, enforced, promulgated, amended, issued or deemed applicable to (i) Purchaser, the Company or any subsidiary or Affiliate of Purchaser or the Company, or (ii) any Transaction, by any legislative body, court, government or governmental, administrative or regulatory authority or agency, domestic or foreign, which is reasonably likely to result, directly or indirectly, in any of the consequences referred to in clauses (i) through (v) of paragraph (a) above; (c) there shall have occurred any change, condition, event or development that has a Material Adverse Effect; (d) there shall have occurred (i) any general suspension of, or limitation on prices for, trading in securities on the AMEX, (ii) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (iii) any limitation (whether or not mandatory) by any government or governmental, administrative or regulatory authority or agency, domestic or foreign, on, or other order event that, in the reasonable judgment of Purchaser, might affect, the extension of credit by banks or other lending institutions, (iv) a commencement of a war or armed hostilities or other national or international calamity directly or indirectly involving the United States or (v) in the case of any of the foregoing existing on the date hereof, a material acceleration or worsening thereof which is materially effects the Company; (i) it shall have been publicly disclosed or Purchaser shall have otherwise learned that beneficial ownership (determined for the purposes of this paragraph as set forth in effect at Rule 13d-3 promulgated under the Tender Offer Purchase Time and which Exchange Act) of 20% or more of the then outstanding Shares has been acquired by any person, other than Purchaser or any of its Affiliates, or (ii) (A) makes the acceptance for payment ofBoard or any committee thereof shall have withdrawn or modified in a manner adverse to Purchaser the approval or recommendation of the Offer, the Merger, the Merger Agreement, or the payment for, some approved or all recommended any takeover proposal or any other acquisition of the Shares illegal or otherwise prohibits consummation of other than the Offer, the Merger or any of the other transactions contemplated herebyMerger Agreement, or (B) prohibits Acquisition from operating the Board or deriving benefits from the majority any committee thereof shall have resolved to do any of the value of the operations foregoing; (f) any representation or warranty of the Company and its subsidiaries taken in the Merger Agreement which is qualified as a whole to operate the Company; provided, however, that the parties shall use reasonable efforts (subject to the proviso in Section 5.6(b)) to cause any such decree, judgment or other order to be vacated or lifted prior to September 30, 2000; (iii) [reserved]; (iv) the representations and warranties of the Company set forth in this Agreement materiality shall not be true and correct or any such representation or warranty that is not so qualified shall not be true and correct in any material respect, in each case as if such representation or warranty was made as of such time on or after the date of this Agreement or the Merger Agreement; (g) the Company shall have breached or failed to perform in any material respect any obligation or to perform or comply in any material respect with any material obligation, agreement or covenant required by this Agreement of the Company to be performed or complied with by it at or prior to such time except, where under the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse EffectMerger Agreement; (vh) this the Merger Agreement shall have been terminated in accordance with its terms;; or (vii) there Purchaser and the Company shall have occurred an agreed that Purchaser shall terminate the Offer or postpone the acceptance by the Company for payment of a Superior Proposal; (vii) [reserved]; (viii) the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation of the Offer, shall have recommended to the Company's stockholders a Third Party Acquisition or shall have adopted any resolution to effect any of the foregoing; (ix) [reserved]; (x) [reserved]; (xi) [reserved]; (xii) from the date of this Agreement until the Tender Offer Purchase Time, there shall have occurred the commencement of a war having a Material Adverse Effect on the Companypayment for Shares thereunder; which, in the reasonable sole judgment of Parent and Acquisition, Purchaser in any such case, and regardless of the circumstances giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) payment. The foregoing conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition Purchaser and may be asserted by Acquisition Purchaser regardless of any the circumstances giving rise to any such condition and or may be waived (other than the Minimum Condition) by Acquisition, Purchaser in whole or in part, part at any time and from time to timetime in its sole discretion, in except that the sole discretion Minimum Condition may only be waived by Purchaser with the prior approval of Acquisitionthe Company. The failure by Parent or Acquisition (or any affiliate of Acquisition) Purchaser at any time to exercise any of the foregoing rights will shall not be deemed a waiver of any such right; the waiver of any such right with respect to particular facts and other circumstances shall not be deemed a waiver with respect to any other facts and circumstances; and each such right will shall be deemed an ongoing right which that may be asserted at any time and from time to time.

CONDITIONS TO THE OFFER. (a) Notwithstanding any other provisions term of the Offer, Acquisition we shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC SEC, including Exchange Act Rule 14e-l(c) under the Exchange Act (relating which relates to Acquisition's our obligation to pay for or return tendered Shares shares promptly after the termination or withdrawal of the Offer), to pay for, and may delay postpone the acceptance for payment of or, subject to the restrictions referred to above, the and payment for, shares tendered, and we may amend the Offer or terminate the Offer and not accept for payment any tendered Shares, shares if (w) any waiting periods applicable to the Offer under the HSR Act shall not have been terminated or shall not have expired and any required approvals or notices under the Bank Act, the Bank Holding Company Act and required approvals from state Governmental Entities responsible for regulating, in the aggregate, ninety percent (90%) of the Company's and its subsidiary's average mortgage origination volume for the period 1998 and 1999 shall not have been obtained, and, in the case of any approval, authorization or consent, shall not be in full force and effect and all conditions applicable thereto shall not have been satisfied; (x) any of the consents or approvals of any Person other than a Governmental Entity, in connection with the execution, delivery and performance of this Agreement shall not have been obtained; except where the failure to have obtained any such consent or approval would not have a Material Adverse Effect; (y) the Minimum Condition shall not have been satisfied or (z) at any time on or after the date of this Agreement and before the time of acceptance of such Shares for payment pursuant prior to the Offer, expiration of the Offer any of the following events shall occurbe determined by us to have occurred: 1) any change (or condition, event or development involving a prospective change) shall have occurred or been threatened in the business, properties, assets, liabilities, capitalization, stockholders' equity, financial condition, or prospects of NRL which, in our sole judgment, does or may have a materially adverse effect on NRL or us or any of our affiliates, or we shall have become aware of any fact that, in our sole judgment, does or may have a material adverse effect on the value of the shares; 2) there shall be threatened, instituted, or pending any action, proceeding, application or counterclaim by or before any court or governmental, administrative or regulatory agency or authority, domestic or foreign, or any other person or tribunal, domestic or foreign, which (i) [reserved]; challenges or seeks to challenge, restrain or prohibit the making of the Offer, the acquisition by us of the shares, or any other matter directly or indirectly relating to the Offer, or seeks to obtain any material damages or otherwise directly or indirectly relating to the transactions contemplated by the Offer, (ii) from seeks to make the date of this Agreement until the Tender Offer Purchase Time, any Governmental Entity or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, injunction or other order which is in effect at the Tender Offer Purchase Time and which (A) makes the acceptance for payment purchase of, or the payment for, some or all of the Shares shares pursuant to the Offer illegal or otherwise prohibits results in a delay in our ability to accept for payment or pay for some or all of the shares, (iii) seeks to impose limitations on our ability (or any affiliate of ours) to acquire or hold or to exercise full rights of ownership of the shares, including, but not limited to, the right to vote the shares purchased by us on all matters properly presented to the NRL stockholders, (iv) would or might prohibit, restrict or delay the consummation of the OfferOffer or materially impair the contemplated benefits to us thereof, including the Merger exercise of voting or other stockholder rights with respect to the shares pursuant to the Offer or the receipt of any distributions or other benefits of ownership of the purchased shares to which owners of shares are entitled generally, (v) otherwise could materially adversely affect the business, properties, assets, liabilities, capitalization, stockholders' equity, financial condition, or prospects of NRL, or (vi) otherwise directly or indirectly relates to the Offer or which otherwise, in our sole judgment, might adversely affect us, NRL or any of the other transactions contemplated hereby, our affiliates or (B) prohibits Acquisition from operating or deriving benefits from the majority of the value of the operations shares; 3) any action shall have been taken or any statute, rule, regulation, judgment, decree, injunction or order (preliminary, permanent or otherwise) shall have been proposed, sought, enacted, entered, promulgated, enforced or deemed to be applicable to the Offer or us or NRL or any of our affiliates by any court, government or governmental agency or other regulatory or administrative authority, domestic or foreign, which, in our sole judgment, (i) indicates that any approval or other action of any such court, agency or authority may be required in connection with the Offer or the purchase of shares thereunder, (ii) would or might prohibit, restrict or delay consummation of the Company and its subsidiaries taken as a whole Offer or materially impair the contemplated benefits to operate us thereof, including the Company; provided, however, that the parties shall use reasonable efforts (subject exercise of voting or other stockholder rights with respect to the proviso in Section 5.6(b)) shares purchased pursuant to cause the Offer or the receipt of any such decree, judgment distributions or other order benefits of ownership of the purchased shares to be vacated which owners of shares are entitled generally, or lifted prior to September 30, 2000; (iii) [reserved]otherwise could materially adversely affect the business, properties, assets, liabilities, capitalization, stockholders' equity, financial condition, or prospects of us or NRL or any of our affiliates; (iv) the representations and warranties of the Company set forth in this Agreement shall not be true and correct on the date of this Agreement or the Company shall have breached or failed in any respect to perform or comply with any material obligation, agreement or covenant required by this Agreement to be performed or complied with by it at or prior to such time except, where the failure of representations and warranties (without regard to materiality qualifications therein contained) to be true and correct, or the performance or compliance with such obligations, agreements or covenants, would not, individually or in the aggregate, have a Material Adverse Effect; (v) this Agreement shall have been terminated in accordance with its terms; (vi4) there shall have occurred an acceptance by (i) any general suspension of, or general limitation on prices for, or trading in, securities on any national securities exchange in the Company United States or in the over-the-counter market, for a period in excess of three hours, (ii) a declaration of a Superior Proposal; banking moratorium or any suspension of payments in respect of banks in the United States or any limitation (whether or not mandatory) by any governmental agency or authority on, or any other event that, in our sole judgment, might adversely affect, the extension of credit by banks or other financial institutions, (iii) a material change in United States or any other currency exchange rates or a suspension of or limitation on the markets therefor, (iv) the commencement of, or a significant expansion in any currently ongoing, war, armed hostilities or other similar national or international calamity directly or indirectly involving the United States, or any attack on, or outbreak or act of terrorism involving, the United States, (v) a material decrease, in our reasonable judgment, in the market price for the shares or in the general level of market prices for equity securities in the United States, (vi) any change in the general political, market, economic or financial conditions in the United States or other jurisdictions in which NRL does business that could, in the sole judgment of the Trust, have a material adverse effect on the business, properties, assets, liabilities, capitalization, stockholders' equity, financial condition, or prospects of NRL, or (vii) [reserved]; (viii) in the Board shall have withdrawn or modified in a manner adverse to Parent its approval or recommendation case of any of the foregoing existing at the time of the commencement of the Offer, in our sole judgment, a material acceleration or worsening thereof; 5) NRL shall have recommended (i) split, combined or otherwise changed, or authorized or proposed the split, combination or other change, of the shares or its capitalization, (ii) acquired or otherwise caused a reduction in the number of, or authorized or proposed the acquisition or other reduction in the number of, any presently outstanding shares or other securities or other equity interests, (iii) issued, distributed or sold, or authorized or proposed the issuance, distribution or sale of, additional shares, other than shares issued or sold pursuant to NRL's dividend reinvestment plan in effect on September 10, 2004, or issued, distributed or sold, or authorized or proposed the Company's stockholders a Third Party Acquisition issuance, distribution or shall have adopted sale, of shares of any resolution other class of capital stock or other equity interests, other voting securities, debt securities or any securities convertible into, or rights, warrants or options, conditional or otherwise, to effect acquire, any of the foregoing, (iv) declared, paid or proposed to declare or pay any dividend or other distribution on any shares of capital stock of NRL other than in connection with NRL's publicly disclosed stable monthly dividend policy as in effect on May 23, 2005, (v) altered or proposed to alter any material term of any outstanding security or material contract, permit or license, (vi) authorized, recommended, proposed or entered into, or announced its intention to authorize, recommend, propose or enter into, any agreement or arrangement with any person or group that, in the Trust's sole opinion, could adversely affect either the value of NRL or the value of the shares, or (vii) amended or authorized or proposed any amendment to its articles of incorporation or bylaws, or the Trust shall become aware that NRL shall have proposed or adopted any such amendment which shall not have been previously disclosed; 6) a tender or exchange offer for any shares of the capital stock of NRL shall have been made or publicly proposed to be made by another person, or it shall have been publicly disclosed or we shall have learned that (ixi) [reserved]any person, entity or "group" (as that term is used in Section 13(d)(3) of the Exchange Act) shall have acquired, or proposed to acquire, more than five percent of any class or series of capital stock of NRL (including the shares), or shall have been granted any option or right, conditional or otherwise, to acquire more than five percent of any class or series of capital stock of NRL (including the shares) other than acquisitions for bona fide arbitrage purposes and other than acquisitions by any person, entity or group which has publicly disclosed such ownership in a Schedule 13D or 13G (or an amendment thereto on file with the SEC on or prior to May 23, 2005), (ii) any such person, entity or group which has publicly disclosed such ownership prior to such date shall have acquired or proposed to acquire more than one percent of any class or series of capital stock of NRL (including the shares) or shall have been granted any option or right to acquire more than one percent of any class or series of capital stock of NRL (including the shares), (iii) any new group shall have been formed which beneficially owns more than five percent of any class or series of capital stock of NRL (including the shares), (iv) any such person, entity or group shall have entered into a definitive agreement or an agreement in principle or made a proposal with respect to a tender offer or exchange offer for any shares or other business combination with or involving NRL or (v) any person shall have filed a Notification and Report Form under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amendex, xx xade a public announcement reflecting an intent to acquire NRL or assets or securities of NRL); (x7) [reserved]; (xi) [reserved]; (xii) from legislation amending the date Code has been passed by either the U.S. House of this Agreement until Representatives or the Tender Offer Purchase TimeSenate or becomes pending before the U.S. House of Representatives or the Senate or any committee thereof, there shall have occurred the commencement effect of a war having a Material Adverse Effect on the Company; which, in our sole judgment, would be to change the tax consequences of the transaction contemplated by the Offer in any manner that would adversely affect us or any of our affiliates; or 8) any approval, permit, authorization, favorable review or consent of any governmental entity required to be obtained in connection with the Offer shall not have been obtained on terms satisfactory to us in our reasonable judgment of Parent and Acquisitiondiscretion, which, in our sole judgment, in any such case, and regardless of the circumstances (including any action or inaction by us) giving rise to any such condition, makes it inadvisable to proceed with the Offer and/or with such acceptance for payment or payments. (b) The conditions set forth in Section 6.1(a) (other than the Minimum Condition) are for the sole benefit of Acquisition and may be asserted by Acquisition regardless of any circumstances giving rise to any condition and may be waived (other than the Minimum Condition) by Acquisition, in whole or in part, at any time and from time to time, in the sole discretion of Acquisitionpayment. The failure by Parent or Acquisition (or any affiliate of Acquisition) at any time to exercise any Each of the foregoing rights will following actions taken by NRL, and the authorization of each of the following actions by NRL's board of directors (collectively, the "Existing Breaches"), constitutes an event that, pursuant to one or more of the numbered clauses of the preceding sentence, permits us to postpone the acceptance for payment of and payment for, shares tendered, and to amend the Offer or terminate the Offer and not be deemed a waiver of accept for payment any right and each right will be deemed an ongoing right which may be asserted at any time and from time to time.tendered shares: