Common use of CONDITIONS TO THE OFFER Clause in Contracts

CONDITIONS TO THE OFFER. The Offer will be conditional upon the satisfaction of the conditions set out in Appendix I, including: • valid acceptances being received in respect of APR Energy Shares which constitute not less than 90 per cent. (or such lower percentage as Bidco may, subject to the Code, decide) of the APR Energy Shares to which 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 Xxxxx 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 Offer will not become or be declared unconditional as to acceptances unless Bidco, together with its wholly owned subsidiaries (if any) shall have acquired or agreed to acquire (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 irrevocable undertakings further described at section 15 below, those shares represent 52.9 per cent. in aggregate of the voting rights then normally exercisable at a general meeting of APR Energy. The Committed APR Energy Shares held by JCLA, Xxxxxxxx Xxxxxxxx and Xxx Xxxxx will not count for the purpose of the satisfaction of the requirements of Rule 10.

CONDITIONS TO THE OFFER. The following describes all of the conditions to the Offer, and the Offer will be conditional upon is expressly conditioned on the satisfaction of these conditions. The following description does not purport to replicate the conditions set out exact wording contained in Appendix Ithe Merger Agreement and is qualified in its entirety by reference to the Merger Agreement, including: • valid acceptances being received a copy of which is filed as an exhibit to the Tender Offer Statement on Schedule TO that has been filed with the Securities and Exchange Commission by the Purchaser and BEI in respect connection with the Offer, and is incorporated in this Offer to Purchase by reference. The Merger Agreement may be examined, and copies obtained, by following the procedures described in Section 9 (Certain Information Concerning OpticNet) of APR Energy Shares which constitute this Offer to Purchase. The Merger Agreement provides that the Purchaser is not less than 90 per cent. required to accept for payment, or (subject to any applicable rule or such lower percentage as Bidco mayregulation of the Securities and Exchange Commission) pay for, and may delay the acceptance for payment of, or (subject to any applicable rule or regulation of the Securities and Exchange Commission) the payment for, any tendered shares of OpticNet common stock, and (subject to the Code, decide) terms of the APR Energy Shares to which Merger Agreement) may terminate the Offer relates and on any scheduled Expiration Date of the voting rights attached Offer and not accept for payment any tendered shares of OpticNet common stock, if (i) there has been validly tendered in accordance with the terms of the offer and not withdrawn prior to those APR Energy Shares; • APR Energy midnight, New York City time, on the Expiration Date of the offer, shares of OpticNet common stock that, together with any shares of OpticNet common stock then owned by BEI or any wholly owned subsidiary of BEI (including the Purchaser), represent greater than 80% of the "Adjusted Outstanding Share Number," which is defined in the Merger Agreement as the sum of all then-outstanding shares of OpticNet common stock, plus, at the election of BEI, an additional number of shares of OpticNet common stock up to but not having agreed exceeding the aggregate number of shares of OpticNet common stock issuable upon the exercise of any outstanding option, warrant or other right to undertake acquire capital stock of OpticNet, or upon the conversion of any additional obligations in security convertible into capital stock of OpticNet or (ii) any amendment of the following conditions shall not have been satisfied prior to the Credit Expiration Date of the Offer: - any waiting period under any applicable antitrust or competition law or regulation or other legal requirement shall have expired or been terminated, and any consent required under any applicable antitrust or competition law or regulation or other legal requirement shall have been obtained; - each of the representations and warranties of OpticNet contained in the Merger Agreement that would remain effective after shall have been accurate in all material respects as of the date on which of the Offer becomes Merger Agreement (except that any representation or is declared unconditional warranty that, by its express terms, speaks only as of an earlier date need only have been accurate as of such earlier date); except that, for purposes of determining the accuracy of such representations and warranties as of the date of the Merger Agreement (or any applicable earlier date), all materiality qualifications contained in such representations and warranties shall be disregarded; - each of the representations and warranties of OpticNet contained in the Merger Agreement shall be accurate in all respects as of the Offer Expiration Date as if made on and as of the Offer Expiration Date (except that any representation or warranty that, by its express terms, speaks only as of an earlier date need only have been accurate as of such earlier date); except that the inaccuracies in such representations and warranties shall be disregarded for purposes of this condition if all such inaccuracies and the circumstances giving rise thereto, considered collectively, have not had and could not reasonably be expected to have or constitute a material adverse effect on the business, operations, capitalization, assets, liabilities or prospects of OpticNet (together with the previous condition, the "Accuracy Conditions"); - each covenant or obligation that OpticNet is required to comply with or to perform at or prior to the Acceptance Date has been complied with and performed in all material respects (the "Covenant Condition"); - all material consents required to be obtained in connection with the Offer, the Merger and each of the other than transactions contemplated by the Merger Agreement shall have been obtained and shall be in full force and effect (the "Consent Condition"); - BEI and OpticNet have received a certificate executed by the Chief Executive Officer and Chief Financial Officer of OpticNet confirming that the Accuracy Conditions, the Covenant Condition, the Consent Condition, the Legality Condition (as defined below) and the Legal Proceeding Condition (as defined below) have been duly satisfied, which certificate shall be in full force and effect; - no temporary restraining order, preliminary or permanent injunction or other order preventing the purchase of or payment for shares of OpticNet common stock pursuant to the Amendment Offer, or preventing completion of the Merger or any of the other transactions contemplated by the Merger Agreement, shall have been issued by any court of competent jurisdiction and Waiver remain in effect, and there is not any legal requirement enacted or deemed applicable to the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement that makes the purchase of or payment for shares of OpticNet common stock pursuant to the Offer, or the completion of the Merger or any of the other transactions contemplated by the Merger Agreement, illegal (the "Legality Condition"); • as at a closing date on which the Offer must lapse unless it is declared unconditional in all respects, - there shall not being be pending or overtly threatened any Default under the Credit Agreement as a consequence of which the Lenders are legal proceeding by 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 ofbefore any governmental body: (i) any breach challenging or seeking to restrain or prohibit the purchase of terms or payment for shares of OpticNet common stock pursuant to the Offer, or the completion of the Amendment Merger or any of the other transactions contemplated by the Merger Agreement; (ii) relating to the Offer, the Merger or any of the other transactions contemplated by the Merger Agreement and Waiver Agreement seeking to obtain from BEI or OpticNet any damages or other relief that may be material to BEI or OpticNet; (iii) seeking to prohibit or limit in any material respect BEI's ability to vote, receive dividends with respect to or otherwise exercise ownership rights with respect to the stock of OpticNet; (iv) that could materially and adversely affect the right of BEI or OpticNet to own the assets or operate the business of OpticNet (the "Legal Proceeding Condition"); and - there shall not caused have occurred: (i) a declaration by APR Energya governmental body of a banking moratorium in the United States or any suspension of payments in respect of banks in the United States, which declaration or suspension is continuing; or (ii) a war, armed hostilities, an act of terrorism or any event not caused by other international or national calamity directly related or indirectly involving the United States, which is (or whose effects are) continuing, which in any case in the good faith judgment of BEI would make it inadvisable to APR Energy that could lead to a Default under proceed with the Credit AgreementOffer or the Merger. APR Energy intends to inform Xxxxx The foregoing conditions are for the sole benefit of BEI and the Joint Bidders if it enters into any discussions with Purchaser and, subject to the Lenders in relation to any potential or actual Default or any relevant fact or circumstance that could permit terms and conditions of the Required Lenders Merger Agreement, may be waived by BEI or the Administrative Agent Purchaser, in whole or in part, at any time and from time to time on or prior to the Expiration Date, in the sole discretion of BEI and the Purchaser. The failure by BEI or the Purchaser at any time to exercise any right under section 10.2 of the Credit Agreement following any relevant cure period or expiry foregoing rights will not be deemed a waiver of any period of timesuch right and each such right will be deemed an ongoing right that may be asserted at any time and 48 from time to time on or prior to the Expiration Date. The Offer will lapse 60 days after is expressly subject to the publication satisfaction of each 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 respectsforegoing conditions. In order to comply with the obligations set out in Rule 10 of the Code, If the Offer will not become or be declared unconditional as to acceptances unless Bidco, together with its wholly owned subsidiaries (if any) shall have acquired or agreed to acquire (whether is terminated pursuant to the Offer or otherwise) APR Energy Shares which carry more than 50 per cent. in aggregate foregoing provisions, all tendered shares of OpticNet common stock will be promptly returned to 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 irrevocable undertakings further described at section 15 below, those shares represent 52.9 per cent. in aggregate of the voting rights then normally exercisable at a general meeting of APR Energy. The Committed APR Energy Shares held by JCLA, Xxxxxxxx Xxxxxxxx and Xxx Xxxxx will not count for the purpose of the satisfaction of the requirements of Rule 10tendering stockholders.

CONDITIONS TO THE OFFER. The Offer will be conditional is conditioned upon the satisfaction or waiver (to the extent permitted by applicable law) of the following conditions set out in Appendix I(each, includingan “Offer Condition”): • There shall have been validly tendered and not withdrawn prior to the expiration of the Offer that number of Shares that would represent at least a majority of Shares outstanding, excluding Shares that are owned as of the date of the commencement of the Offer by Nanosphere or any direct or indirect wholly-owned subsidiary of Nanosphere and excluding any Shares tendered by notice of guaranteed delivery but not actually delivered to the Depositary prior to the Expiration Time (the “Minimum Condition”). • At the time of expiration of the Offer or immediately prior to payment for Shares tendered pursuant to the Offer: • valid acceptances being received no order issued by a governmental authority, or any applicable law is in respect effect that would (1) make the Offer or the Merger illegal, (2) otherwise prevent the consummation of APR Energy Shares which constitute not less than 90 per cent. the Offer or closing of the Merger or (3) impose any limitations on the ownership or operation by Luminex (or such lower percentage Table of Contents any of its subsidiaries) of all or any portion of the businesses or assets of Luminex, Nanosphere or any of their respective subsidiaries, or to compel Luminex, Nanosphere or any of their respective subsidiaries to dispose of or hold separate any portion of the businesses or assets of Luminex, Nanosphere or any of their respective subsidiaries (the “No Order Condition”); • any applicable waiting period (and any extensions thereof) under the Xxxx-Xxxxx-Xxxxxx Act Antitrust Improvements Act of 1976 (the “HSR Act”) applicable to the transactions contemplated by the Merger Agreement has not expired or been terminated (the “HSR Condition”); • no proceeding has been commenced and is pending by any United States federal or state or foreign governmental authority of competent jurisdiction seeking an order that would have any of the effects referred to in the No Order Condition; • no Company Material Adverse Effect (as Bidco maydefined in Section 11 — “Purpose of the Offer and Plans for Nanosphere; Merger Agreement and Other Agreements”) has occurred following the date of the Merger Agreement; • the representations and warranties made by Nanosphere in the Merger Agreement shall be accurate, subject to the Code, decide) of materiality and other qualifications set forth in the APR Energy Shares to which Merger Agreement (the Offer relates and of the voting rights attached to those APR Energy Shares“Representations Condition”); • APR Energy Nanosphere has not having agreed failed to undertake any additional obligations perform in any amendment material respect any obligation or comply in any material respect with any of its agreements and covenants under the Merger Agreement prior to such time (the Credit Agreement that would remain effective after “Covenants Condition”); • Xxxxxxxxxx has delivered to Luminex a certificate signed by a Nanosphere senior executive officer dated the date on which the Offer becomes expires certifying that the Representations Condition and the Covenants Condition have been satisfied; or is declared unconditional • the Merger Agreement has not been terminated in all respects (other than accordance with its terms. The foregoing conditions are in addition to, and not a limitation of, the rights of Purchaser to extend, terminate, amend and/or modify the Offer 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 Merger Agreement. Subject to the applicable rules and Waiver regulations of the SEC, we expressly reserve the right (but are not obligated), at any time and from time to time, in our sole discretion, to waive any Offer Condition or modify the terms of the Offer, except that, without Nanosphere’s prior written consent, we cannot (a) reduce the number of Shares subject to the Offer, (b) reduce the Offer Price, (c) modify or waive the Minimum Condition, (d) add to the Offer Conditions or otherwise modify any Offer Condition in a manner adverse to the holders of Shares, (e) extend the Offer except as required or permitted by certain provisions of the Merger Agreement not caused by APR Energy; or (iif) any event change the form of consideration payable in the Offer. In addition, without Nanosphere’s written consent, we may not caused by or directly related extend the Offer, and without Luminex’s prior written consent, Nanosphere cannot require us to APR Energy that could lead to a Default under extend the Credit Offer, in each case beyond the earlier of the Outside Date and the termination of the Merger Agreement. APR Energy intends If we extend the Offer, such extension will extend the time that you will have to inform Xxxxx and the Joint Bidders if it enters into any discussions with the Lenders in relation to any potential tender (or actual Default withdraw) your Shares. The failure by Luminex, Purchaser or any relevant fact of Luminex’s or circumstance that could permit the Required Lenders or the Administrative Agent Purchaser’s affiliates at any time to exercise any right under section 10.2 of the Credit Agreement following any relevant cure period or expiry foregoing rights shall not be deemed a waiver 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 Coderight, the Offer will waiver of any such right with respect to particular facts and circumstances shall not become or be declared unconditional as deemed a waiver with respect to acceptances unless Bidco, together with its wholly owned subsidiaries (if any) any other facts and circumstances and each such right shall have acquired or agreed be deemed an ongoing right that may be asserted at any time and from time to acquire (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 irrevocable undertakings further described at section 15 below, those shares represent 52.9 per cent. in aggregate of the voting rights then normally exercisable at a general meeting of APR Energy. The Committed APR Energy Shares held by JCLA, Xxxxxxxx Xxxxxxxx and Xxx Xxxxx will not count for the purpose of the satisfaction of the requirements of Rule 10time.

CONDITIONS TO THE OFFER. The Offer will be conditional upon If all such conditions are not satisfied prior to the satisfaction Expiration Date, Purchaser reserves the right (but is not obligated) to (i) decline to purchase any of the conditions set out in Appendix I, including: • valid acceptances being received in respect of APR Energy Shares which constitute not less than 90 per cent. (or such lower percentage as Bidco maytendered and terminate the Offer, subject to the Code, decide) terms of the APR Energy Merger Agreement, (ii) waive any of the conditions to the Offer to the extent permitted by applicable law and the provisions of the Merger Agreement, and, subject to complying with applicable rules and regulations of the SEC, purchase all Shares validly tendered, (iii) subject to the terms of the Merger Agreement, extend the Offer or (iv) subject to the terms of the Merger Agreement, amend the Offer. Subject to the terms of the Merger Agreement, Purchaser may (i) extend the period of time during which the Offer relates is open 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 Bidcothereby delay acceptance for payment of, and the Joint Bidders intend payment for, any Shares, by giving oral or written notice of such extension 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; Depositary or (ii) any event not caused amend the Offer by giving oral or directly related written notice of such amendment to APR Energy that could lead to a Default under the Credit AgreementDepositary. APR Energy intends to inform Xxxxx and the Joint Bidders if it enters into any discussions with the Lenders in relation to any potential Any extension, amendment 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 termination of the Offer Document (or such will be followed as promptly as practicable by public announcement thereof, the announcement in the case of an extension to be issued no later date as than 9:00 a.m., New York City time, on 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 next business day after the previously scheduled Expiration Date in all respects. In order to comply accordance with the obligations set out in Rule 10 of the Code, the Offer will not become or be declared unconditional as to acceptances unless Bidco, together with its wholly owned subsidiaries (if any) shall have acquired or agreed to acquire (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 public announcement requirements of Rule 10. These APR Energy Shares will, when combined with the APR Energy Shares committed 14d-4(d) under the irrevocable undertakings further described at section 15 belowExchange Act. Without limiting the obligation of Purchaser under such Rule or the manner in which Purchaser may choose to make any public announcement, those shares represent 52.9 per centPurchaser currently intends to make announcements by issuing a press release to the Dow Xxxxx News Service. in aggregate of the voting rights then normally exercisable at a general meeting of APR Energy. The Committed APR Energy Shares held by JCLAUNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE OFFER PRICE TO BE PAID BY PURCHASER FOR THE SHARES, Xxxxxxxx Xxxxxxxx and Xxx Xxxxx will not count for the purpose of the satisfaction of the requirements of Rule 10REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING SUCH PAYMENT.

CONDITIONS TO THE OFFER. The Offer will be conditional upon the satisfaction Notwithstanding any other term of the conditions set out in Appendix IOffer or this Agreement, including: • valid acceptances being received in respect of APR Energy Shares which constitute Sub shall not less than 90 per cent. (or such lower percentage as Bidco maybe required to, and Parent shall not be required to cause Sub to, accept for payment or, subject to the Code, decide) any applicable rules and regulations of the APR Energy Shares SEC, including Rule 14e-1(c) under the Exchange Act (relating to which Sub's obligation to pay for or return tendered shares of Company Common Stock promptly after the Offer relates and termination or withdrawal of the voting rights attached to those APR Energy Shares; • APR Energy not having agreed to undertake Offer), pay for 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 shares 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 Xxxxx 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 Offer will not become or be declared unconditional as to acceptances unless Bidco, together with its wholly owned subsidiaries (if any) shall have acquired or agreed to acquire (whether Company Common Stock tendered pursuant to the Offer or otherwiseif: (a) APR Energy Shares which carry more than 50 per cent. in aggregate there shall not have been validly tendered and not validly withdrawn prior to the expiration of the voting rights then normally exercisable Offer a number of shares of Company Common Stock (1) 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, represent at least a general meeting majority of APR Energy. The APR Energy Shares held the shares of Company Common Stock outstanding as of immediately prior to the expiration of the Offer and (2) that, when added to (without duplication of shares) the number of shares of Company Common Stock owned by Fairfax Parent and ACMits Subsidiaries as of immediately prior to the expiration of the Offer plus the number of shares of Company Common Stock to be purchased by Sub pursuant to the Top-Up, represent at least one more share than 90% of (without duplication) (x) the outstanding shares of Company Common Stock as of immediately prior to the expiration of the Offer, plus (y) the aggregate number of shares of Company Common Stock issuable to holders of Company Equity Awards from which the Company or 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 yet been issued to such exercising holders of Company Equity Awards), plus (z) the number of shares of Company Common Stock to be purchased by Sub under the Top-Up (the foregoing (a)(1) and (a)(2), collectively, the "Minimum Tender Condition", and such number of shares equal to be transferred to Bidco as set out in section 14 below, will count for the purpose of satisfaction sum of the requirements shares described in the preceding clauses (x) through (z), the "Fully Diluted Share Number"); (b) the waiting period applicable to the purchase of Rule 10. These APR Energy Shares will, when combined with shares of Company Common Stock pursuant to the APR Energy Shares committed Offer and the consummation of the Merger under the irrevocable undertakings further described at section 15 below, those shares represent 52.9 per cent. in aggregate HSR Act (or any extension thereof) shall have neither expired nor terminated; (c) any approval required under any applicable Foreign Merger Control Law with respect of the voting rights then normally exercisable at a general meeting of APR Energy. The Committed APR Energy Shares held by JCLA, Xxxxxxxx Xxxxxxxx and Xxx Xxxxx will not count for the purpose consummation of the satisfaction Offer and the consummation of the requirements Merger shall not have been obtained, (d) any of Rule 10.the Bank Approvals shall not have been obtained and/or shall not be in full force and effect; (e) Parent (either directly or through Sub or the Company) shall not have received the proceeds of the Debt Financing (or any Alternative Debt Financing) and/or the lenders party to the Debt Commitment Letter (or New Debt Commitment Letter for any Alternative Debt Financing) shall not have confirmed to Parent and Sub that the Debt Financing (or any Alternative Debt Financing) in an amount sufficient to consummate the Offer and the Merger will be available at the Offer Closing on the terms and conditions set forth in the Debt Commitment Letter (or New Debt Commitment Letter for any Alternative Debt Financing) ("Financing Proceeds Condition"); or (f) any of the following conditions shall have occurred and be continuing as of the expiration of the Offer:

CONDITIONS TO THE OFFER. The Offer will be conditional upon the satisfaction (a) Additionally, notwithstanding any other provision of the Offer, Acquisition Sub will not be required to, and may not, as to clauses (ii) and (iii) below, without the prior approval of the Company Board, accept for payment or pay for any Shares tendered in the Offer if, at any time on or after the date of the Agreement and prior to the acceptance for payment of Shares, any of the following conditions set out exist; provided, however, that the approval of the Company Board referred to in Appendix Ithis Section 1.9(a) shall not be required as to clauses (ii) and (ii) below, if, the waiver or failure to satisfy such conditions would not subject Company's directors and officers to any criminal liability or personal liability other than as a result of the bad faith of any such director or officer: (i) there shall be threatened, instituted or pending any action by any Governmental Entity, (A) challenging or seeking to, or which could reasonably be expected to, make illegal, impede, delay or otherwise directly or indirectly restrain, prohibit or make materially more costly the Offer or the Merger, (B) seeking to prohibit or materially limit the ownership or operation by Parent or Acquisition Sub of all or any material portion of the business or assets of the Company and its Subsidiaries taken as a whole or to compel Parent or Acquisition Sub to dispose of or hold separately all or any material portion of the business or assets of either Parent and its respective Subsidiaries taken as a whole or the Company and its Subsidiaries taken as a whole, or seeking to impose any limitation on the ability of either Parent or of Acquisition Sub to conduct its respective business or own such assets, (C) seeking to impose limitations on the ability of Parent or Acquisition Sub effectively to exercise full rights of ownership of the Shares, including: • valid acceptances being received in respect of APR Energy , without limitation, the right to vote any Shares which constitute not less than 90 per cent. (acquired or such lower percentage as Bidco may, subject owned by Acquisition Sub or Parent on all matters properly presented to the CodeCompany's shareholders, decide(D) seeking to require divestiture by Parent or Acquisition Sub of any Shares, or (E) seeking any material diminution in the benefits expected to be derived by Parent or Acquisition Sub as a result of the APR Energy Shares to which transactions contemplated by the Offer relates or Merger; (ii) all applicable waiting periods, consents or other approvals under any Antitrust Laws required to purchase Shares validly tendered and not withdrawn pursuant to the Offer shall have expired, terminated or, as the case may be, granted; (iii) there shall have been any Law, Order or injunction promulgated, enacted, entered, enforced, issued or amended by any Governmental Entity that is applicable to Parent, Acquisition Sub, Company, the Offer or the Merger, which could reasonably be expected to result directly or indirectly in any of the voting rights attached consequences referred to those APR Energy Shares; • APR Energy not having agreed in paragraph (i) above; (iv) since the date of the Agreement, there shall have occurred any change, condition, event or development that has had or would, individually or in the aggregate, reasonably be expected to undertake any additional obligations have a Company Material Adverse Effect; (v) Company shall have failed to perform in any amendment material respect any obligation required to be performed by it at or prior to such time under the Agreement which breach is not curable or, if curable, is not cured on or prior to the Credit Agreement that would remain effective earlier of (x) twenty calendar days after written notice of such breach is given by either Parent or Acquisition Sub to Company and (y) the date on which all conditions to the Offer becomes not related to such breach have been satisfied; (vi) (A) any representation or is declared unconditional warranty of the Company in all respects Section 5.1, Section 5.2, Section 5.4, Section 5.5, Section 5.25(d), Section 5.13(e) or Section 1.2(a) or (c) of this Exhibit A shall not be materially true and correct as of the date of the Agreement and the date of the consummation of the Offer as though made on or as of such date (other than pursuant representations and warranties that, by their terms, address matters only as of another specified date, which shall be true and correct only as of such specified date) or (B) any other representation or warranty of the Company contained in the Agreement (determined without giving effect to any materiality, Company Material Adverse Effect or similar qualifications), shall not be true and correct (except where the failure of any such representations or warranties referred to in this clause (B) to be so true and correct has not had or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect) as of the date of the Agreement and the date of the consummation of the Offer, and which breach is not curable or, if curable, is not cured on or prior to the Amendment earlier of (x) twenty calendar days af ter written notice of such breach is given by either Parent or Acquisition Sub to Company and Waiver Agreement); • as at a closing (y) the date on which all conditions to the Offer must lapse unless it is declared unconditional not related to such breach have been satisfied; (vii) the Company Board (or any committee thereof) shall have made, or resolved to make, an Adverse Recommendation Change; (viii) Company or any of its Subsidiaries shall have entered into an agreement obligating Company or any of its Subsidiaries to engage in a Company Acquisition Proposal, or shall have consummated any transaction resulting from a Company Acquisition Proposal; or (ix) the Agreement shall have been terminated pursuant to its terms, including by the written agreement of Company and Parent (without the joinder of Acquisition Sub). (b) The foregoing conditions are for the benefit of Parent and Acquisition Sub and may be asserted by Parent or Acquisition Sub in whole or in part at any applicable time or from time to time prior to the Expiration Date, and any or all respectsconditions may be waived by Parent (without the joinder of Acquisition Sub) in its discretion in whole or in part at any applicable time or from time to time, 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, in each case subject to certain exceptions; • approval the terms and conditions 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, Agreement and the Joint Bidders intend to inform APR Energy if it becomes aware of: (i) any breach of terms applicable rules and regulations of the Amendment and Waiver Agreement not caused by APR Energy; or (ii) SEC. The failure of Parent at 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 Xxxxx 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 time to exercise any right under section 10.2 of the Credit Agreement following any relevant cure period or expiry foregoing rights will not be deemed a waiver of any period of such right and each such right will be deemed an ongoing right that may be asserted at any time and from time to 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 Offer will not become or be declared unconditional as to acceptances unless Bidco, together with its wholly owned subsidiaries (if any) shall have acquired or agreed to acquire (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 irrevocable undertakings further described at section 15 below, those shares represent 52.9 per cent. in aggregate of the voting rights then normally exercisable at a general meeting of APR Energy. The Committed APR Energy Shares held by JCLA, Xxxxxxxx Xxxxxxxx and Xxx Xxxxx will not count for the purpose of the satisfaction of the requirements of Rule 10.