Common use of The Offer Clause in Contracts

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII Section 8 and that none of the events or circumstances conditions set forth in clause (iiic), (d), (e)(ii), (e)(iii) (with respect to the Company’s obligations and covenants in Section 1.1(b), Section 1.2, Section 6.5(b) and Section 6.7(a)(iii)(A), and the Company’s representations and warranties in Section 3.2, Section 3.23, Section 3.24 and Section 3.26, in each case to the extent the same are required to be complied with, or be true and correct, as applicable, in order for Parent and Purchaser to commence the Offer), or (e)(iv) of Annex A hereto shall have occurred and be existing (continuing and shall not have been waived by Purchaser)Parent, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but practicable and in any event no event earlier than five (5) business days after the date hereof and no later than ten (10) Business Days, business days after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offerhereof. The obligation of Purchaser to accept for payment and pay for Shares validly tendered pursuant to the Offer and to pay the Per Share Amount for each such tendered and not subsequently withdrawn Share shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A heretohereto (the “Tender Offer Conditions”). Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Tender Offer Condition), to increase the price per Per Share Amount payable in the Offer Offer, and to make any other changes in to the terms and conditions of the Offer; provided, however, that no change may be made without the prior written consent of the Company (which consent shall not be unreasonably withheld with respect to clauses (iii)(D) or (iii)(E) below): (i) the Minimum Condition (as defined in Annex A) may not be waived; (ii) the conditions set forth in clause (b) (to the extent any such matter could result in a Restraint), clause (e)(i)(B), and clause (e)(ii) (insofar as it relates to clause (e)(i)(B)) in Annex A may not be waived if any such waiver would be reasonably likely to result in personal liability to any director, officer, or employee of any party hereto; and (iii) no change may be made that (A) changes the form of consideration to be paid pursuant to the Offer, (B) decreases the price per Per Share Amount payable in the Offer, changes the form of consideration payable in the Offer, (C) reduces the maximum number of Shares sought to be purchased in the Offer, (D) imposes conditions to the Offer in addition to, or modifies or amends, the conditions to those set forth in Annex A hereto, waives or (E) amends the Minimum Condition or makes any other changes Tender Offer Conditions set forth in the terms of the Offer that are Annex A hereto in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer Shares. (ib) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following On the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at Purchaser shall file with the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule TO”) with respect to the OfferOffer that will comply in all material respects with the provisions of all applicable Legal Requirements. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and all forms of notice of guaranteed delivery and any related summary advertisement (the Schedule TO, the Offer to Purchase and such other ancillary Offer documents (collectivelydocuments, together with all amendments, supplements and exhibits amendments thereto, being referred to herein collectively as the “Offer Documents”). Parent and Each of Parent, Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall Company agrees to correct promptly correct any information provided by them it for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall further agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of the Shares, in each case, case as and to the extent required by applicable federal securities Laws Legal Requirements. The Company shall promptly furnish to Parent and rules Purchaser all information concerning the Company that is required or reasonably requested by Parent or Purchaser in connection with the obligations relating to the Offer Documents contained in this Section 1.1(b). Parent and regulations promulgated thereunderPurchaser shall give the Company and its counsel a reasonable opportunity to review and comment on the Offer Documents prior to such documents being filed with the SEC or disseminated to holders of Shares. Parent and Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Purchaser shall provide the Company (in writing, if written), and consult with the Company regarding, any comments (written or oral) that Parent or Purchaser or their counsel may receive from the SEC or the SEC Staff with respect to the Offer Documents promptly after receipt of such comments. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents on any proposed responses before they are filed with the SEC and disseminated to holders participate in the response of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Subject to the terms and conditions thereof, the Offer shall remain open until midnight, New York City time, at the end of the twentieth (20th) business day after the date that the Offer is commenced (the “Expiration Date”), unless Purchaser shall have extended the period of time for which the Offer is open pursuant to, and in accordance with, this Section 1.1(c) or as may be entitled required by applicable Legal Requirements, in which event the term “Expiration Date” shall mean the latest time and date as the Offer, as so extended, may expire. Unless this Agreement is terminated in accordance with its terms, Purchaser shall extend the Offer from time to deduct and withhold from time if (i) any Tender Offer Condition is not satisfied (or, in accordance with Section 1.1(a) above, waived by Parent or Purchaser) on or before the consideration otherwise payable Expiration Date; or (ii) if any applicable Legal Requirement, rule, regulation, interpretation or position of the SEC or the staff of the SEC (the “SEC Staff”) thereof applicable to the Offer requires such extension. Purchaser shall extend the Offer pursuant to the immediately preceding sentence for consecutive periods of up to ten (10) business days each (or for such period as may be required by any applicable Legal Requirement, rule, regulation, interpretation or position); provided, however, that Purchaser shall not be required to extend the Offer beyond the Outside Date. If this Agreement is terminated prior to the Acceptance Date, Purchaser shall promptly (and in any event within twenty-four (24) hours) irrevocably and unconditionally terminate the Offer (and return, or in connection with any subsequent offering period) any such amounts as are required cause to be deducted and withheld with respect returned, all tendered Shares to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”registered holders thereof), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII IX, and none of the events or circumstances set forth in clause paragraphs (iiia), (b), (c) (to the extent performance is required theretofore), (e) and (f) of Annex A I hereto shall have occurred and be existing continuing, as promptly as practicable and in any event within ten (and 10) Business Days after the date hereof, MergerSub shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer an offer to purchase all of the outstanding Company Common Shares at the Offer Price as promptly as reasonably practicablePrice, but in no event later than ten (10) Business Daysand shall, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the upon commencement of the Offer. The obligation of Purchaser Offer but after affording the Company reasonable opportunity to accept for payment review and pay for Shares tendered pursuant comment thereon, file a Tender Offer Statement on Schedule TO with respect to the Offer shall be subject only to (xtogether with all amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance and all other necessary documents with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be and make all deliveries, mailings and telephonic notices required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 14d-3 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file connection with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent , and Purchaser shall cause use its commercially reasonable efforts to consummate the Offer Documents to be disseminated Offer, subject to the holders terms and conditions thereof. Subject to the terms and conditions of the Shares as this Agreement and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchasersatisfaction or waiver of the conditions set forth in Annex I hereto (the “Tender Offer Conditions”), on MergerSub shall, as soon as possible after the one handexpiration of the Offer (or, if applicable, the expiration of the “initial offering period”), accept for payment, and pay for (after giving effect to any required withholding Tax), all Company Common Shares validly tendered pursuant to the CompanyOffer and not withdrawn (the first date of acceptance for payment, on the other hand, shall “Acceptance Date”). MergerSub and the Company each agree promptly to correct any information provided by them it for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, respect and Parent and Purchaser MergerSub shall take all steps necessary to cause the Offer Documents Schedule TO, as so corrected or supplemented, to be filed with the SEC and the Offer Documents, as so corrected or supplemented, to be disseminated to holders of the Sharesshares, in each case, case as and to the extent required by applicable federal Federal securities Laws laws. MergerSub shall provide the Company with (in writing, if written), and rules and regulations promulgated thereundershall consult with the Company regarding, any comment (written or oral) that may be received by MergerSub or its counsel from the SEC or its staff with respect to the Offer Documents as promptly as practicable after receipt thereof. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on any such written and oral comments and proposed responses. (b) Without the prior written consent of the Company, MergerSub shall not decrease the Offer Documents before they are filed Price or change the form of consideration payable in the Offer, decrease the number of Company Common Shares sought to be purchased in the Offer, impose additional conditions to the Offer or amend any other term of the Offer in any manner adverse to the holders of Company Common Shares. MergerSub may, in its sole and absolute discretion, increase the price per Company Common Share payable in the Offer without the consent of the Company. The initial expiration date of the Offer shall be the twentieth business day (as such term is defined in Rule 14d-1(g)(3) under the Exchange Act) following the commencement of the Offer (determined using Rules 14d-1(g)(3) and 14d-2 promulgated under the Exchange Act). MergerSub expressly reserves the right to waive any condition to the Offer (provided that any waiver of the Minimum Tender Condition shall require the prior written consent of the Company) or modify the terms of the Offer, subject to compliance with the SEC Exchange Act and disseminated the first sentence of this subsection (b); provided that all such modifications to holders the terms of Sharesthe Offer (other than a modification to increase the Offer Price or to waive a condition to the Offer) shall not, in the aggregate, reasonably be expected to delay the Acceptance Date by more than ten Business Days after the first public dissemination of notice of any such modification. In additionExcept as expressly provided in this subsection (b), Parent MergerSub shall not extend the Offer if all of the conditions of the Offer are satisfied or waived and Purchaser it is permitted under applicable Law to accept for payment and pay for tendered shares. Notwithstanding the foregoing, MergerSub shall provide extend the Company Offer at any time, and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time: (1) if at the then-scheduled expiration date of the Offer any of the Tender Offer Conditions shall not have been satisfied or waived, until such time from as such conditions are satisfied or waived; provided that any extension shall be in increments of not more than three Business Days (unless a longer period of time is agreed to by the Company in writing, such agreement not to be unreasonably withheld); (2) for any period required by any rule, regulation, interpretation or position of the SEC or its staff with respect applicable to the Offer; or (3) if all of the Tender Offer Documents promptly Conditions are satisfied or waived, and Company Common Shares have been accepted for payment, but the number of Company Common Shares acquired by MergerSub (together with other Company Common Shares owned of record by the Buyer Parties or any of their Affiliates) represent less than 90% of the votes entitled to be cast by the holders of the then outstanding number of Company Common Shares and Company Series D Preferred Shares (after reflecting and taking into account any adjustment to the receipt number of votes such comments, consult holders have relative to holders of Company Common Shares in accordance with the Company and its counsel prior to responding to any such comments and provide terms of the Company Series D Preferred Shares), voting together as a class, for an aggregate period of not more than ten Business Days (for all such extensions pursuant to this clause (3)) as a “subsequent offering period” (the “Subsequent Offering Period”) in accordance with copies Rule 14d-11 of the Exchange Act. Nothing contained in this paragraph shall affect any termination rights in Article IX. Subject to the terms of the Offer and this Agreement and the satisfaction of all such responses. (c) Purchaser shall be entitled the Tender Offer Conditions as of any date on which the Offer is scheduled to deduct expire, MergerSub will accept for payment and withhold from the consideration otherwise payable pay for all Company Common Shares validly tendered and not validly withdrawn pursuant to the Offer (or in connection with any subsequent offering period) any as soon as practicable after such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Lawdate.

The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that this Agreement shall not have been terminated in accordance with Article VII and none Section 8.1, as promptly as practicable (but in any event not later than eight business days after the public announcement of Purchaser's intention to commence the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing (and shall not have been waived by PurchaserOffer), Purchaser shall (and Parent shall will cause Purchaser to) to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”"EXCHANGE ACT")) ), the Offer whereby Purchaser will offer to purchase for cash all of the Shares at the Offer Price as promptly as reasonably practicablePer Share Amount, but net to the seller in no event later cash (subject to reduction for any stock transfer taxes payable by the seller if payment is to be made to an individual or entity other than ten (10) Business Days, after the date Person in whose name the certificate for such Shares is registered or any applicable federal back-up withholding). For purposes of this Agreement; provided, however"PERSON" shall mean an individual, that such ten corporation, limited liability company, limited liability partnership, partnership, association, trust, unincorporated organization or other entity or group (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered defined in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred StockholdersSection 13(d)(3) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser14(d)(2) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum ConditionExchange Act), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to if between the right date of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days Effective Time (as defined in Rule 14d-1 under Section 2.2 hereof), the Exchange Act) following outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the date Per Share Amount will be correspondingly adjusted on a per-share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of commencement shares. The obligation of Parent to cause Purchaser to commence the Offer, or any subsequent scheduled expiration date, if, at to consummate the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation Offer and to accept for payment and to pay for Shares validly tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend in the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall and not exceed ten (10) Business Days (or such longer period as the Company withdrawn in accordance therewith will be subject to, and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the only to, those conditions of the Offer set forth in Annex ANNEX A hereto to be satisfied. Subject to (the "OFFER CONDITIONS"), the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted which are hereby incorporated herein by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offerreference. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement --------- shall not have been terminated in accordance with Article VII Section 7.01 and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and or be existing (and shall not have been waived by Purchaser)existing, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepracticable after the date hereof, but in no event later than ten (10) Business Days, five business days after the date initial public announcement of this Agreement; provided, however, that such ten (10) Business Day deadline Purchaser's intention to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the condition (xthe "Minimum Condition") the satisfaction that at least a majority of the condition that at then outstanding ----------------- Shares, other than Shares owned beneficially by or of record by Gambro, Parent, Purchaser or any of their affiliates, shall have been validly tendered and not withdrawn prior to the expiration of the Offer there and also shall be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required subject to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition)condition, to increase the price per Share payable in the Offer Offer, and to make any other changes in the terms and conditions of the Offer; provided, -------- however, that the Minimum Condition may not be waived except with the prior ------- written consent of the Special Committee; and provided further that no -------- ------- change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, Offer or which reduces the maximum number of Shares sought to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to, or modifies or amends, the conditions to those set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price Per Share Amount shall, subject to any required applicable withholding of Taxestaxes, be net to the sellers seller in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares Subject to the terms and conditions of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer, Purchaser shall pay, as promptly as practicable after expiration of the Offer, for all Shares validly tendered and not withdrawn. (b) As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") (i) a Tender Offer Statement on --- Schedule TO 14D-1 (together with all amendments, amendments and supplements and exhibits thereto, the “"Schedule TO”14D-1") with respect to the OfferOffer and (ii) a Rule 13e-3 -------------- Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and -------------- the other Transactions (as hereinafter defined). The Schedule TO 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of ----------------- transmittal and all any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other ancillary Offer documents (collectivelydocuments, together with all amendments, supplements and exhibits amendments thereto, being referred to herein collectively as the “"Offer Documents”"). Gambro, Parent, Purchaser and the --------------- Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Gambro, Parent and Purchaser shall further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the holders of the Shares Shares, in each case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responseslaws. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII Section 8.01 and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and or be existing (and unless such event shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser to) to commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amendedamended (the "Exchange Act")), and the rules and regulations promulgated thereunder (the “Exchange Act”)) Purchaser shall commence, the Offer to purchase all of the Shares at the Offer Price Per Share Amount as promptly as reasonably practicablepracticable after the date hereof, but in no event later than ten (10) Business Days, five business days after the date public announcement of this Agreement; provided, however, that such ten (10) Business Day deadline Purchaser's intention to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (xi) the satisfaction condition (the "Minimum Condition") that at least the number of Shares that, when combined with the Shares already owned by Parent and its direct or indirect subsidiaries and any Shares purchased pursuant to the Stockholders Agreement, constitute a majority of the condition that at then 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 and not withdrawn prior to the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (yii) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions condition (other than the Minimum Condition), to increase the price per Share payable in the Offer Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that (notwithstanding Section 8.04) no change may be made without the prior written consent of the Company which (A) decreases the price per Per Share payable in the OfferAmount, changes the form of consideration payable in the Offer, (B) reduces the maximum number of Shares sought to be purchased in the Offer, (C) imposes conditions to the Offer in addition to, or modifies or amends, the conditions to those set forth in Annex A hereto, waives the Minimum Condition (D) amends or makes any other changes in the terms and conditions of the Offer that are in any manner materially adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later other than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of subsidiaries) or (E) changes or waives the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the OfferMinimum Condition. The Offer Price Per Share Amount shall, subject to any required applicable withholding of Taxestaxes, be net to the sellers seller in cash, without interest thereon, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares Subject to the terms and conditions of Company Common Stock held by the Company or any Offer (including, without limitation, the Minimum Condition), Purchaser shall accept for payment and pay, as promptly as practicable after expiration of its Subsidiaries will be tendered in the Offer, for all Shares validly tendered and not withdrawn. (b) As promptly soon as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") and disseminate to holders of Shares to the extent required by law a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments, amendments and supplements and exhibits thereto, the “"Schedule TO”14D-1") with respect to the OfferOffer and the other Transactions (as hereinafter defined). The Schedule TO 14D-1 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and all any related summary advertisement (the Schedule 14D-1, the Offer to Purchase and such other ancillary Offer documents (collectivelydocuments, together with all amendments, supplements and exhibits amendments thereto, being referred to herein collectively as the “"Offer Documents”"). Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Parent and Purchaser shall further agree to take all steps necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the holders of the Shares Shares, in each case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderlaws. The Company and its counsel shall be given a reasonable an opportunity to review and comment upon on the Offer Documents before they are filed and any amendments thereto prior to the filing thereof with the SEC and disseminated to holders of SharesSEC. In addition, Parent and Purchaser shall will provide the Company and its counsel with a copy of any written comments that or telephonic notification of any verbal comments Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with thereof and will provide the Company and its counsel prior to responding to with a copy of any such comments written responses and provide telephonic notification of any verbal response of Parent, Purchaser or their counsel. In the Company with copies of all such responses. (c) event that the Offer is terminated or withdrawn by Purchaser, Parent and Purchaser shall cause all tendered Shares to be entitled to deduct and withhold from the consideration otherwise payable pursuant returned to the Offer (registered holders of the Shares represented by the certificate or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect certificates surrendered to the making of such payment under the Internal Revenue Code of 1986, Paying Agent (as amended (the “Code”defined herein), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII Section 7.1 and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing continuing (and shall not have been waived by PurchaserPurchaser or Merger Sub), Purchaser Merger Sub shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepracticable after the date hereof, but in no event later than ten five (105) Business Days, after business days from the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence and the Offer will be extended to such date shall remain open at least twenty (20) business days (as defined in Rule 14d-1(g)(3) of the Company is ready to file the Schedule 14D-9 on the same date as the Exchange Act) from commencement of the OfferOffer (the “Initial Expiration Date”). The obligation of Merger Sub to accept for payment and to pay for any Shares validly tendered and not withdrawn prior to the expiration of the Offer (as it may be extended in accordance with requirements of this Section 1.1(a)) shall be subject only to the satisfaction or the waiver by Purchaser or Merger Sub of the following conditions: (i) there being validly tendered and not withdrawn prior to the expiration of the Offer (x) that number of shares of Common Stock which, together with any shares of Common Stock then owned by Purchaser or Merger Sub (without giving effect to shares subject to purchase under the Stock Option Agreement or the Stockholders Agreement), represents greater than 90% of the shares of Common Stock outstanding and (y) there being validly tendered and not withdrawn prior to the expiration of the Offer that number of shares of Convertible Preferred Stock which, together with any shares of Convertible Preferred Stock then owned by Purchaser or Merger Sub (without giving effect to shares subject to purchase under the Stock Option Agreement the Stockholders Agreement), represents 100% of the Convertible Preferred Stock outstanding (clauses (x) and (y) together, the “Minimum Condition”); and (ii) the other conditions set forth in Annex A hereto. Subject to the prior satisfaction or waiver by Purchaser or Merger Sub of the Minimum Condition and the other conditions of the Offer set forth in Annex A hereto, Merger Sub shall consummate the Offer in accordance with its terms and accept for payment and pay for all Shares tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. The Offer shall be subject only made by means of an offer to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) purchase (the “Offer to Purchase”) that contains the terms set forth in this Agreement, the Minimum Condition”), Condition and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition)conditions, to increase the price per Share payable in either or both of the Offer Prices and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent Merger Sub shall not, and Purchaser shall cause Merger Sub not to, decrease either of the Company which decreases the price per Share payable in the OfferOffer Prices, changes change the form of consideration payable in the Offer, reduces decrease the maximum number of Shares sought in the offer, impose additional conditions to be purchased in the Offer, imposes conditions to extend the Offer in addition tobeyond the Initial Expiration Date except as set forth below, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes amend any other changes in the terms condition of the Offer that are in any manner adverse to the holders of Shares orthe Shares, except as provided below, extends in each case without the expiration date prior written consent of the OfferCompany (such consent to be authorized by the Company Board of Directors or a duly authorized committee thereof). Notwithstanding the foregoing, subject to Merger Sub may, without the right consent of the parties to terminate this Agreement in accordance with Section 7.1Company, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the any scheduled expiration of the Offer, Offer any of the conditions to PurchaserMerger Sub’s obligation to accept Shares for payment and to pay for Shares tendered shall not be satisfied oror waived, extend the Offer beyond the Initial Expiration Date for a time period reasonably necessary to the extent permitted by this Agreementpermit such condition to be satisfied, waived and or (ii) extend the Offer for any period required by any rule, regulation or interpretation of the U.S. United States Securities and Exchange Commission (the “SEC”) ), or the staff thereof thereof, applicable to the Offer; provided that Purchaser shall not be required to . Merger Sub may, without the consent of the Company, extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On In addition, either or prior both of the Offer Prices may be increased and the Offer may be extended to the date that Purchaser becomes obligated to pay for Shares pursuant to extent required by law in connection with such increase, in each case without the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions consent of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the OfferCompany. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser Merger Sub shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase (the “Offer to Purchase”) and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, amendments and supplements and exhibits thereto, the “Offer Documents”). Parent Purchaser and Purchaser Merger Sub shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws laws. Purchaser and rules and regulations promulgated thereunder. Parent and PurchaserMerger Sub, on the one hand, and the Company, on the other hand, shall will promptly correct any information provided by them it for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall Merger Sub will cause the Offer Documents as so corrected to be filed with the SEC and to be disseminated to holders of the Shares, in each case, case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderlaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents Schedule TO before they are it is filed with the SEC and disseminated to holders of SharesSEC. In addition, Parent Purchaser and Purchaser shall Merger Sub agree to provide the Company and its counsel with any comments comments, whether written or oral, that Parent Purchaser or Purchaser Merger Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, comments and to consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsescomments. (c) Purchaser shall be entitled and Merger Sub will file with the Commissioner of Commerce of the State of Minnesota and disseminate to deduct and withhold from the consideration otherwise payable pursuant shareholders of the Company any registration statement relating to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect filed pursuant to Chapter 80B of the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax LawMinnesota Statutes.

The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer referred to below been terminated in accordance with Article VII and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events or circumstances conditions set forth in clause paragraphs (iiiii)(a) - (ii)(g) of Annex A hereto shall have occurred and be existing I hereto, then as promptly as practicable after the date hereof (and shall not have been waived by Purchaserin any event within eight (8) business days of the date of this Agreement), Purchaser Merger Sub shall (and Parent shall cause Purchaser toA) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) an offer (the Offer "Offer") to purchase any and all of the Shares outstanding shares of Company Common Stock at a price per Share equal to the Per Share Amount, net to the seller in cash, without interest and (B) after affording the Company a reasonable opportunity to review and comment thereon, file a Tender Offer Statement on Schedule TO (the "Schedule TO") and all other necessary documents (collectively, the "Offer Documents") with the Securities and Exchange Commission (the "SEC"), make all deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act, and publish, send or give the disclosure required by Rule 14d-6 under the Exchange Act by complying with the dissemination requirements of Rule 14d-4 under the Exchange Act in each case in connection with the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the OfferDocuments. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there shall be validly tendered in accordance with the terms of the Offer and not withdrawn that prior to the Expiration Date (as hereinafter defined) a number of Shares whichthat, when taken together with the Shares (if any) then owned by Parent and/or Merger Sub or any other subsidiary of its SubsidiariesParent, represents more than 50% at least a majority of the Shares then outstanding determined on a fullyFully-diluted basis Diluted Basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereofhereinafter defined) (the “"Minimum Condition”), ") and (y) the satisfaction (or waiver by Purchaser) of to the other conditions set forth in Annex A I hereto. Purchaser Merger Sub expressly reserves the right to waive any of such the conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes change in the terms of or conditions to the Offer; provided, however, provided that no change may be made without the prior written consent of the Company which decreases Company, (i) the price per Share payable in Minimum Condition may not be waived, (ii) the Offercondition to the Offer that the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the "XXX Xxx") xx xxxer any applicable foreign antitrust statutes or regulations shall have expired or been terminated (the "Regulatory Condition") may not be waived, (iii) no change may be made that changes the form of consideration payable in to be paid, decreases the Offer, reduces Per Share Amount or the maximum number of Shares sought to be purchased in the Offer, Offer or imposes conditions to the Offer in addition to, or modifies or amends, the conditions to those set forth in Annex A hereto, waives the Minimum Condition or makes I and (iv) no other change may be made to any other changes in the terms term of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the OfferShares. Notwithstanding the foregoing, subject to except as otherwise provided in this Section 1.01(a), without the consent of the Company, Merger Sub shall have the right to extend the Offer, provided that such extension does not extend beyond the later of (x) July 31, 2003 and (y) the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at date that is 30 days after the request of date that the Company shall, extend has complied with its obligations under Section 6.03 (the Offer "Outside Date") (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, from time to time if, at the scheduled expiration of the Offeror extended Expiration Date, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered the Offer shall not be have been satisfied oror waived, to the extent permitted by this Agreement, until such conditions are satisfied or waived and or (ii) for any period required by any rule, regulation regulation, interpretation or interpretation position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the staff thereof applicable to the Offer; provided Offer or any period required by applicable law. The Offer shall remain open until 12:00 midnight on the date that Purchaser shall not be required to extend is twenty (20) business days after the Offer to a date later than the Outside Date. Each extension commencement of the Offer pursuant to clause (i) the "Expiration Date"), unless Merger Sub shall have extended the period of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of time for which the Offer set forth is open pursuant to, and in Annex A hereto to be satisfied. Subject to accordance with, the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.be

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII Section 8.01 hereof and none of the events or circumstances set forth in clause clauses (iiia) through (g) of Annex A I hereto shall have occurred and be existing (and shall not have been waived by Purchaser)or exist, the Purchaser shall (shall, and Parent shall cause the Purchaser to) , commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepracticable after the date hereof, but in no any event not later than ten five (105) Business Days, after business days following the date of this Agreement; providedhereof. The initial expiration date for the Offer shall be October 15, however1999 (the "Expiration Date"). As promptly as practicable, that such ten the Purchaser shall file with the Securities and Exchange Commission (10the "SEC") Business Day deadline the Purchaser's Tender Offer Statement on Schedule 14D-1 (the "Schedule 14D-1" and together with the documents therein pursuant to commence which the Offer will be extended made, and with any supplements or amendments thereto, the "Offer Documents"), which shall contain (as an exhibit thereto) the Purchaser's Offer to such date as Purchase (the Company is ready "Offer to file Purchase") that shall be mailed to the Schedule 14D-9 on the same date as the commencement holders of Shares with respect to the Offer. The obligation of Parent and the Purchaser to accept for payment and or pay for any Shares tendered pursuant to the Offer shall will be subject only to (x) the satisfaction of the condition that at there being validly tendered and not withdrawn prior to the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn Offer, that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, which represents more than 50% at least seventy-five percent of the Shares then entitled to vote that are outstanding determined on a fully-fully diluted basis (without giving pro forma effect to the potential issuance of any Shares issuable under the Stock Option Agreement) (the "Minimum Condition"), and to the satisfaction or waiver of each condition set forth in Annex I hereto (the term "fully diluted basis" in reference to the Shares means all outstanding securities entitled generally to vote in the election of directors of the Company on a “fully-fully diluted basis” meaning , after giving effect to the number exercise or conversion of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, rights and securities exercisable or convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”into such voting securities), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without Without the prior written consent of the Company which decreases Company, the price per Share payable in Purchaser shall not (i) decrease the Offer, changes Offer Price or change the form of consideration payable in the Offer, reduces (ii) decrease the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, ; (iii) amend or modifies or amends, the conditions set forth in Annex A hereto, waives waive satisfaction of the Minimum Condition Condition; or makes (iv) amend any other changes in the terms term of the Offer that are in any manner adverse to the holders of Shares orany Shares; provided, except as provided belowhowever, extends that if on the expiration date Expiration Date all conditions to the Offer shall not have been satisfied or waived, the Purchaser may, from time to time in its sole discretion, extend the Expiration Date (each extension to be for ten business days or less); provided, further, that the Expiration Date shall in no event be extended past October 31, 1999 without the written consent of the OfferCompany. Notwithstanding The Purchaser shall, on the foregoing, terms and subject to the right prior satisfaction or waiver of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement conditions of the Offer, or any subsequent scheduled expiration dateaccept for payment and purchase, if, at as soon as practicable after the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding expiration of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.the

The Offer. (a) Provided that Unless this Agreement shall not have has been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto Section 8.1, Sub shall have occurred and be existing (and shall not have been waived by Purchaser)commence, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) , the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, practicable (but in no event later than ten (10) Business Days, after the fifth business day from and including the date of initial public announcement of this Agreement; provided, however, that such ten (10) Business Day deadline ). Sub shall accept for payment Shares which have been validly tendered and not withdrawn pursuant to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement following expiration of the OfferOffer promptly following the time that all conditions to the Offer shall have been satisfied or waived by Sub, except that the Minimum Condition (as hereinafter defined) may not be waived. The obligation of Purchaser Sub to accept for payment payment, purchase and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A heretoand to the further condition that a number of Shares which, waives the Minimum Condition together with any Shares beneficially owned by Falcon or makes any other changes in the terms Sub, represent not less than a majority of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days then outstanding on a Fully Diluted Basis (as defined in Rule 14d-1 under the Exchange Acthereinafter defined) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares have been validly tendered and not withdrawn pursuant prior to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such final expiration date of the OfferOffer (the "Minimum Condition"). In addition"Fully Diluted Basis" means, if, at the expiration date as of the Offerany time, all of the conditions Shares plus all shares of Xxxxxx Xxxxxxxx Common Stock required to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn be issued or issuable pursuant to the Offeroptions, when taken together with Shareswarrants, if anysecurities or obligations of any kind under employee stock or similar benefit plans or otherwise, then owned whether or not vested or exercisable. Unless previously approved by Parent and its SubsidiariesXxxxxx Xxxxxxxx in writing, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use change in the Offer Documents if and to the extent that it shall may be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. made (ci) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.which decreases the

The Offer. (a) Provided The Offer shall initially be made upon the Terms mutually agreed upon by the Members. The Members acknowledge that they have agreed to the Terms contained in the draft dated February 13, 1996 of the Offer Documents. If the Members are unable to agree on any additional Terms of the Offer within 20 days of the Effective Date, then, notwithstanding any other provision of this Agreement to the contrary, the provisions of Section 4.01 shall not have been terminated in accordance with Article VII be void and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amendedno effect, and the rules Manager shall liquidate and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as dissolve the Company is ready to file as soon as practicable. All terms and conditions other than the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration Terms of the Offer there (including any supplements and amendments thereto) shall be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise priceManager, the vesting schedule or provided that such other terms and conditions thereof) (must be reasonable and customary under the “Minimum Condition”), and (y) circumstances. Each Member shall provide all information reasonably requested by the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right Company to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in complete the Offer Documents and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of consummate the Offer. Notwithstanding Immediately following the foregoingClosing Date, subject the Company shall take all actions as are necessary for it to be admitted to the right of the parties Partnership as a substitute Limited Partner as to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn Units purchased pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly Except as practicable on provided in Section 4.02(c) below, any amendment to the Terms of the Offer after the Offer has been Commenced must be approved by all Members; provided, however, that only the Manager need approve any extension of the expiration date of commencement the Offer which, in the opinion of legal counsel to the Company in connection with the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”i) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent is required by applicable federal securities Laws the Exchange Act and the rules and regulations promulgated thereunder. Parent and Purchaser, on thereunder or by the one hand, and Commission or (ii) is otherwise advisable under the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsescircumstances. (c) Purchaser If a Competing Offer has been Commenced, then the Manager may, in its sole discretion, increase the purchase price of the Offer from time to time; provided, however, that the purchase price of the Offer may not be increased to an amount that is greater than 110% of the purchase price of the Competing Offer at the time of any such increase. If the purchase price of the Offer is to be increased pursuant to this Section 4.02(c), then, within two Business Days of the receipt by Fleetwood of notice of a Competing Offer, Fleetwood, on behalf of all Fleetwood Members, shall elect whether or not to fund the Fleetwood Members' pro rata share of the Offer Call amount to be specified in a properly issued Capital Call Notice. If Fleetwood shall elect not to so fund, the Company shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld Effect a Redemption with respect to the making Icahn Group. (d) If (i) a Competing Offer has been Commenced, (ii) Fleetwood (on behalf of all Fleetwood Members) proposes in writing to Cayuga (on behalf of all Cayuga Members) to increase the purchase price of the Offer to a price that is at least equal to, but not greater than 110% of, the purchase price of the Competing Offer, and (iii) Cayuga does not agree within two Business Days after Fleetwood's request to increase the purchase price of the Offer, then the Company shall continue to make the Offer on unchanged terms and Fleetwood may elect within two Business Days following the expiration of the two Business Day period referred to in the foregoing clause (iii) to require the Company to Effect a Redemption in respect of the Icahn Group, in which case all members of the Icahn Group will continue to be subject to the provisions of Section 4.01. If Cayuga agrees to the increase in the purchase price of the Offer proposed by Fleetwood within such payment under two Business day period, then the Internal Revenue Code of 1986Manager shall take such action as is reasonably necessary to amend the Offer and effect such price increase. (e) The Hermxx Xxxup, Inc. will be retained to act as amended depositary (the “Code”)"Depositary") for each Offer on such terms as the Manager in its sole discretion shall determine. In addition, or under any provision of state, local or foreign Tax Lawthe Depositary will be reimbursed for its reasonable out-of-pocket expenses incurred in connection with each Offer.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII Section 7.01 and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and or be existing (and shall not have been waived by Purchaser)existing, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepracticable after the date hereof, but in no event later than ten (10) Business Days, five business days after the date initial public announcement of this Agreement; provided, however, that such ten (10) Business Day deadline Purchaser's intention to commence the Offer will be extended to such date as Offer. Purchaser shall not, without the Company is ready to file the Schedule 14D-9 on the same date as the commencement consent of a majority of the OfferIndependent Directors, accept for payment any Shares tendered pursuant to the Offer unless at least a majority of the then issued and outstanding Shares, other than Shares owned by Parent and Purchaser, shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "First Minimum Condition"). The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer (i) shall be subject only to the condition (xthe "Second Minimum Condition") that at least the satisfaction number of Shares that when added to the Shares already owned by Parent and Purchaser shall constitute not less than 90% (or such other amount which would allow the Merger to be effected without a meeting of the condition that at Company's stockholders in accordance with Section 253 of the Delaware Law) of the then issued and outstanding Shares shall have been validly tendered and not withdrawn prior to the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (yii) shall be subject to the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions condition (other than except the First Minimum Condition), to increase the price per Share payable in the Offer Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that (i) no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, Offer or which reduces the maximum number of Shares sought to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to, or modifies or amends, to those set forth in Annex A hereto and (ii) in the event all conditions set forth in Annex A heretoshall have been satisfied other than the Second Minimum Condition, waives the Minimum Condition or makes any other changes in the terms of Purchaser may extend the Offer that are in any manner adverse to for a period or periods aggregating not more than 20 business days after the holders later of Shares or, except as provided below, extends (x) the initial expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, Offer and at the request of the Company shall, extend the Offer (iy) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the on which all other conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be shall have been satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, after which time Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to waive the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the OfferSecond Minimum Condition. The Offer Price Per Share Amount shall, subject to any required applicable withholding of Taxestaxes, be net to the sellers seller in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares Subject to the terms and conditions of Company Common Stock held by the Company or any Offer (including, without limitation, the First Minimum Condition and the Second Minimum Condition), Purchaser shall pay, as promptly as practicable after expiration of its Subsidiaries will be tendered in the Offer, for all Shares validly tendered and not withdrawn. (b) As promptly soon as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC Securities and Exchange Commission (the "SEC") (i) a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments, amendments and supplements and exhibits thereto, the “"Schedule TO”14D-1") with respect to the OfferOffer and (ii) a Rule 13e-3 Transaction Statement on Schedule 13E-3 (together with all amendments and supplements thereto, the "Schedule 13E-3") with respect to the Offer and the other transactions contemplated hereby (the "Transactions"). The Schedule TO 14D-1 and the Schedule 13E-3 shall contain or shall incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and all any related summary advertisement (the Schedule 14D-1, the Schedule 13E-3, the Offer to Purchase and such other ancillary Offer documents (collectivelydocuments, together with all amendments, supplements and exhibits amendments thereto, being referred to herein collectively as the “"Offer Documents”"). Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Offer Documents which shall have become false or misleading, and Parent and Purchaser shall further agree to take all steps necessary to cause the Schedule 14D-1 and the Schedule 13E-3 as so corrected to be filed with the SEC and the other Offer Documents as so corrected to be disseminated to the holders of the Shares Shares, in each case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderlaws. The Company and its counsel shall be given a reasonable the opportunity to review and comment upon on the Offer Documents before they are filed and any amendments thereto prior to the filing thereof with the SEC and disseminated to holders of SharesSEC. In addition, Parent and Purchaser shall provide the Company and its counsel with a copy of any written comments that or telephonic notification of any verbal comments Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with thereof and shall provide the Company and its counsel prior to responding to with a copy of any such comments written responses and provide the Company with copies telephonic notification of all such responsesany verbal responses of Parent, Purchaser or their counsel. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII and (1) none of the events or circumstances set forth in clause paragraphs (iiia) through (f) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser)) and (2) the Company shall have complied with its obligations under Section 1.2 hereof, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepracticable after the date hereof, but in no event later than ten (10) seven Business Days, Days after the date initial public announcement of the execution of this Agreement (which initial public announcement shall occur no later than the first Business Day following execution and delivery of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer). The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) to the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50at least 60% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, rights, convertible or exchangeable securities (other than including the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred StockholdersConvertible Securities) or similar obligations regardless then outstanding, but only to the extent then vested or exercisable or capable of being vested or exercisable on or prior to the conversion or exercise price, the vesting schedule or other terms and conditions thereofWalk-Away Date) (the “Minimum Condition”), and (y) to the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable to be paid in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, to the conditions set forth in Annex A hereto, waives the Minimum Condition Condition, or modifies or amends any of the conditions set forth in Annex A hereto or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, shall extend the Offer for any period required by any rule, regulation or interpretation of the Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer. In addition, (i) beyond if at the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) 20 Business Days following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rulewaived, regulation Purchaser shall extend the Offer in increments of not more than 10 Business Days each until such time as such conditions are satisfied or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offerwaived; provided that Purchaser shall not be required to extend the Offer beyond the Walk-Away Date (as defined in Section 7.1(b)(iii)); subject, however, to a date later the parties’ respective rights to terminate this Agreement pursuant to Section 7.1, and (ii) if the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, constitutes less than the Outside Date. Each extension 90% of the Offer Shares then outstanding, without the consent of the Company, Purchaser shall (subject to applicable law) have the right to, and at the request of the Company shall, provide for a “subsequent offering period” (as contemplated by Rule 14d-11 under the Exchange Act) for up to 20 Business Days after Purchaser’s acceptance for payment of the Shares then tendered and not withdrawn pursuant to clause the Offer, in which event Purchaser shall (iA) give the required notice of the preceding sentence shall such subsequent offering period and (B) immediately accept for payment and promptly pay for all Shares validly tendered and not exceed ten (10) Business Days (or withdrawn as of such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfiedexpiration date. Subject to the terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Actlaw. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers seller in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock Shares held by the Company or any of its Subsidiaries will be tendered in to Purchaser pursuant to the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). The Company shall promptly provide Parent with all information concerning the Company that is required to be included in the Offer Documents. Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderlaws. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them it for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderlaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall agree to provide the Company and its counsel with any comments comments, whether written or oral, that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, to consult with the Company and its counsel prior to responding to any such comments and to provide the Company with copies of all such responses, whether written or oral. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided Provided, that nothing shall have occurred that gives rise to a right of Parent to terminate the Offer or this Agreement shall not have been terminated in accordance with Article VII and Agreement; provided, further, that none of the events or circumstances conditions set forth in clause Sections (iiiiii)(c) through (iii)(e) of Annex A hereto shall have occurred and be existing (continuing as of the date that Purchaser would otherwise commence the Offer; and shall not have been waived provided, further, that the Company has fulfilled its obligation to provide information to Parent and Purchaser on a timely basis as contemplated by PurchaserSection 2.1(f), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, practicable after the date hereof. Parent or Purchaser shall provide the Company with prior written notice if Purchaser fails to commence the Offer within 10 business days of the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement Agreement together with a brief explanation of the Offer. reasons therefore. (b) The obligation of Purchaser to accept for payment payment, purchase and pay for any Company Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”)) that at least that number of Company Shares equal to (i) fifty percent (50%) of the then outstanding Company Shares on a fully diluted basis (including all Company Shares potentially issuable upon the conversion of any convertible securities or upon the exercise of any options, warrants or rights (other than the Rights) including the Company RSUs, in each case, which are convertible or exercisable prior to the Outside Date but excluding the Subject Shares) plus (ii) the Subject Shares, shall have been validly tendered and not withdrawn prior to the expiration of the Offer and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any of such conditions condition (other than the Minimum ConditionCondition which may not be amended or waived), to increase the price per Company Share payable in the Offer Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made without the prior written consent of the Company which no change may be made that decreases the price per Company Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Company Shares sought to be purchased in the Offer, imposes adds to the conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of extends the Offer that are other than as set forth in this Section 2.1, or modifies or amends any condition to the Offer in any manner adverse to the holders of Shares orCompany Shares. (c) Subject to the terms and conditions thereof, except as provided belowthe Offer shall remain open until midnight, extends New York City time, at the expiration date end of the Offer. Notwithstanding twentieth (20th) business day beginning with (and including) the foregoing, subject to date that the right of the parties to terminate this Agreement Offer is commenced (determined in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (iRule 14d-1(g)(3) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.1(c) (in which event the term “Expiration Date” shall mean the latest time and date of commencement of as the Offer, as so extended, may expire). Purchaser may, without the consent of the Company, extend the Offer for one or any subsequent more periods beyond the scheduled expiration date, date if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept Company Shares for payment and to pay for Shares tendered shall not be satisfied oror waived, to the extent permitted by this Agreement, waived and (ii) for any such period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period time as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are determines to be necessary to cause the permit such conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction satisfied or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer)waived. In addition, if, at the expiration date of Purchaser shall extend the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.:

The Offer. (a) Provided Subject to the provisions of this Agreement (including, without limitation, Annex A attached hereto), and provided that this Agreement shall has not have been terminated in accordance with Article VII IX hereof, as promptly as practicable but in no event later than five business days, as defined in Rule 14d-1(e)(6) ("Business Days") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after the announcement of this Agreement, Merger Sub will commence the Offer. (i) The obligation of Merger Sub to accept for payment, purchase and none pay for any Shares tendered pursuant to the Offer shall be subject to the satisfaction or waiver of the events or circumstances conditions set forth in clause Annex A attached hereto (the "Offer Conditions") (including the Offer Condition that at least that number of Shares equivalent to a majority of the total Shares issued and outstanding on a fully diluted basis on the date such shares are purchased pursuant to the Offer shall have been validly tendered and not withdrawn prior to the expiration of the Offer (the "Minimum Condition")). Merger Sub expressly reserves the right to modify the terms of the Offer and to waive any condition of the Offer, except that, Merger Sub will not, without the prior written consent of the Company (i) decrease the amount or change the form of consideration payable in the Offer, (ii) decrease the number of Shares sought in the Offer, (iii) impose additional conditions to the Offer, (iv) change any Offer Condition or amend any other term of Annex A hereto shall have occurred and the Offer if any such change or amendment would be existing materially adverse in any respect to the holders of Shares (and shall not other than Parent or Merger Sub), (v) except as provided below, extend the Offer if all of the Offer Conditions have been waived by Purchaser)satisfied or (vi) amend or waive the Minimum Condition. (ii) Subject to the terms and conditions hereof, Purchaser the Offer shall expire at midnight, New York City time, on the date that is twenty (and Parent shall cause Purchaser to20) commence Business Days after the Offer is commenced (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder Act) (the “Exchange Act”"Scheduled Expiration Date"); provided, however, that without the consent of the Company, Merger Sub may (x) extend the Offer, if on the Scheduled Expiration Date of the Offer to purchase all any of the Shares at the Offer Price as promptly as reasonably practicableConditions shall not have been satisfied or waived, but in no event later than for one (1) or more periods (none of which shall exceed ten (10) Business Days), after provided that Merger Sub may not extend the expiration of the Offer past sixty (60) days from the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence unless the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant waiting period applicable to the Offer shall be subject only to (x) transactions contemplated by this Agreement under the satisfaction Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record1976, as of amended (the "HSR Act"), has not terminated or expired in which case Merger Sub may not extend the offer past the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”set forth in Section 9.2(i), and or (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall for such period as may be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation regulation, interpretation or interpretation position of the U.S. Securities and Exchange Commission (the “"SEC”") or the staff thereof applicable to the Offer or (z) extend the Offer for one (1) or more periods (each such period to be for not more than five (5) Business Days and such extensions to be for an aggregate period of not more than fifteen (15) Business Days beyond the latest expiration date that would otherwise be permitted under clause (x) or (y) of this sentence) if on such expiration date the Offer Conditions shall have been satisfied or waived, but there shall not have been tendered that number of Shares which would equal more than ninety percent (90%) of the Shares issued and outstanding on a fully- diluted basis. Parent shall cause Merger Sub to, and agrees to use its best efforts to, consummate the Offer as soon as legally permissible, subject to Merger Sub's right to extend the Offer as provided in this Section 1.1(b)(ii). (iii) Merger Sub agrees that if all of the Offer Conditions are not satisfied on the Scheduled Expiration Date, then, provided that all such conditions are and continue to be reasonably probable of being satisfied by the date that is forty-five (45) days after the commencement of the Offer, Merger Sub shall extend the Offer for one period of not more than five (5) Business Days if requested to do so by the Company; provided that Purchaser Merger Sub shall not be required to extend the Offer to a date later than the Outside Date. Each extension beyond forty-five (45) days after commencement of the Offer pursuant to clause or, if earlier, the date of termination of this Agreement in accordance with the terms hereof. (iiv) of On the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions terms of the Offer set forth in Annex A hereto and subject to be satisfied. Subject to the satisfaction or waiver of the Offer Conditions and the terms of this Agreement Agreement, Merger Sub shall (A) be obligated to purchase all Shares validly tendered and not withdrawn on the satisfaction or earlier waiver of earliest date that all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall Conditions are satisfied or waived and (and Parent shall cause Purchaser toB) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted that Merger Sub becomes obligated to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions purchase pursuant to the Offer have been satisfied (or, to as soon as practicable after the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions expiration of the Offer. The Company agrees that no Notwithstanding any other provision of this Agreement, the Stock Option Agreement or the Shareholders Agreement, any reference to a majority of the total issued and outstanding shares or Shares, or shares or Shares outstanding on a fully diluted basis, or similar references, shall, for purposes of such agreements, exclude from the determination thereof any shares of Company Common Stock held by the Company issuable upon exercise of or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect subject to the Offer. The Schedule TO shall contain Stock Option Agreement and any reference to beneficial ownership of shares of Common Stock or incorporate by reference an offer to purchase and forms similar references shall, for purposes of such agreements, exclude from the related letter determination thereof any shares of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated Common Stock issuable upon exercise of or subject to the holders of Stock Option Agreement and/or the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsesShareholders Agreement. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser)V, Purchaser shall (shall, and Parent shall cause Purchaser to) , commence (within the meaning of Rule 14d-2 under the U.S. Securities Exchange Act of 1934, as amended, and the amended (together with its rules and regulations promulgated thereunder (regulations, the “Exchange Act”)) ), the Offer to purchase all of the Shares at the Offer Price Offer, as promptly as reasonably practicablepracticable (and, but so long as the Company is in no event later than compliance with its obligations to provide information contained in the second sentence of Section 1.1(d), within ten (10) Business Days, ) after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as if the Company is not ready to file the Schedule 14D-9 on the same date as the commencement of the Offer, then such deadline shall automatically be extended until such date as the Company is ready to file the Schedule 14D-9. Purchaser shall give the Company three (3) Business Days notice of the expected commencement date. (b) The obligation of Purchaser to accept for payment and pay for any Shares validly tendered and not validly withdrawn pursuant to the Offer shall be subject only to (xi) the satisfaction of the condition that at the expiration of the Offer there be being validly tendered in accordance with the terms of the Offer Offer, and not validly withdrawn prior to any then-scheduled Expiration Time, that number of Shares which, when taken together with Shares which represents at least forty percent (if any40%) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the total number of Shares then authorized and issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of on the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) hereof (the “Minimum Condition”), ; and (yii) the satisfaction (satisfaction, or waiver by Parent or Purchaser) , in their sole discretion, of the other conditions or requirements set forth in Annex A hereto. Purchaser expressly reserves attached hereto (together with the right to waive any of such conditions (Minimum Condition, the “Offer Conditions”), other than the Minimum Condition). The Offer Price payable in respect of each Share validly tendered and not validly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, on the terms and subject to the conditions set forth in this Agreement. (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer as set forth in this Agreement, including the Offer Conditions. Parent and Purchaser expressly reserve the right (in their sole discretion) to waive, in whole or in part, any Offer Condition or to increase the price per Share payable in the Offer and to make any other changes in the terms of the OfferPrice; provided, however, that no change may be made that, unless otherwise provided by this Agreement, without the prior written consent of the Company which decreases Company, Purchaser shall not (i) decrease the price per Share payable in the Offer, changes Offer Price or change the form of consideration payable in the Offer, reduces (ii) decrease the maximum number of Shares sought subject to be purchased in the Offer, imposes conditions (iii) add to the Offer in addition to, or modifies or amends, the conditions set forth on Annex A, (iv) amend or modify any Offer Condition in Annex A heretoa manner that is adverse to the Company Shareholders, waives (v) waive or amend the Minimum Condition Condition, (vi) except as otherwise provided in this Section 1.1, extend or makes any other changes in otherwise change the expiration date of the Offer or (vii) otherwise amend, modify or supplement the terms of the Offer in a manner that are in any manner is adverse to the holders of Shares orCompany Shareholders; provided that, except as provided below, extends the expiration date of the Offer. Notwithstanding notwithstanding the foregoing, subject to Purchaser expressly reserves the right of the parties (exercisable in its sole discretion) to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend increase the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, Price or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, to waive any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered Offer Conditions, other than the Minimum Condition. (d) Purchaser shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of file with the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to on the Offer. The date that the Offer is commenced, which Schedule TO shall contain or incorporate by reference an offer include, as exhibits, the Offer to purchase and forms of the related letter Purchase, form of transmittal letter and form of notice of guaranteed delivery (such Schedule TO, including all other ancillary Offer documents (collectivelysuch exhibits, together with all amendments, any supplements and exhibits or amendments thereto, the “Offer Documents”) and, subject to the Company’s compliance with Section 1.2(b). Parent and Purchaser shall , cause the Offer Documents to be disseminated to the holders Company Shareholders in accordance with the applicable requirements of the Shares Exchange Act. The Company shall promptly furnish to Parent and Purchaser all information concerning the Company that is required by the Exchange Act to be set forth in the Offer Documents or that is otherwise reasonably requested by Parent or Purchaser for inclusion in the Offer Documents or in connection with the obligations relating to the Offer Documents contained in this Section 1.1(d). Parent and Purchaser shall take all steps necessary to cause the Offer Documents to be filed with the SEC and disseminated to the Company Shareholders, in each case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderLaw. Parent and Purchaser, on the one hand, agree to amend the Offer Documents and the Company, on the other hand, shall agrees to promptly correct any information provided by them it for use in the Offer Documents Documents, if and to the extent that it shall be or such information shall have become false or misleading in any material respect, and respect or as otherwise required by applicable Law. Parent and Purchaser shall further agree to take all steps necessary to cause the Offer Documents Documents, as so corrected amended (if applicable), to be filed with the SEC and disseminated to holders of the SharesCompany Shareholders, in each case, case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderLaw. The Prior to the filing of the Offer Documents (including any amendments or supplements thereto) with the SEC or dissemination thereof to the Company Shareholders, the Company and its counsel shall be given a reasonable opportunity to review and comment on such Offer Documents, and Parent and Purchaser shall give reasonable consideration to any such comments. Parent and Purchaser shall promptly notify the Company upon the Offer Documents before they are filed with receipt of any comments from the SEC, or any request from the SEC for amendments or supplements, to the Offer Documents, and disseminated shall promptly provide the Company with copies of all correspondence between them and their representatives, on the one hand, and the SEC, on the other hand, and shall give the Company and its counsel a reasonable opportunity to holders participate in the response of SharesParent and Purchaser to those comments and to provide comments on any response, and Parent and Purchaser shall give reasonable consideration to any such comments. In additionPrior to responding to any comments of the SEC with respect to the Offer Documents, Parent and Purchaser shall provide the Company and its counsel a reasonable opportunity to review and comment on such response, and Parent and Purchaser shall give reasonable consideration to any such comments. (e) Subject to the terms and conditions set forth in the Offer Documents, the Offer shall remain open until midnight, New York City time, on the date that is twenty (20) Business Days (as defined in Rule 14d-1 under the Exchange Act) following the commencement (within the meaning of Rule 14d-2 under the Exchange Act) of the Offer (the “Initial Expiration Time”) or, in the event the Initial Expiration Time has been extended pursuant to this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Time, or such later date and time to which the Initial Expiration Time has been extended pursuant to this Agreement, is referred to as the “Expiration Time”). Notwithstanding anything in this Agreement to the contrary, but subject to the parties’ respective rights to terminate this Agreement under Article V, if applicable, (i) Purchaser may, in its sole discretion, without the consent of the Company, extend the Offer on one or more occasions if on any then-scheduled Expiration Time any of the Offer Conditions shall not be satisfied or, as permitted by this Agreement, waived, until such time as such condition or conditions are satisfied or so waived, (ii) Purchaser shall extend the Offer for any period required by applicable Law, any interpretation or position of the SEC, the staff thereof or NASDAQ applicable to the Offer, (iii) in the event that any of the Offer Conditions (other than the Minimum Condition) shall have not been satisfied or, as permitted by this Agreement, waived as of any then-scheduled Expiration Time, then Purchaser, at the request of the Company, shall extend the Offer for a period reasonably requested by the Company and (iv) in the event that the Minimum Condition shall not have been satisfied as of the then-scheduled Expiration Time and all of the other conditions to the Offer set forth in Annex A shall have been satisfied as of such Expiration Time, then, at the request of the Company, Parent shall cause Purchaser to extend the Offer for one extension period of up to twenty (20) Business Days, the length of such period to be determined by the Company in its sole discretion; provided, however, that in no event shall Purchaser be required or permitted to extend the Offer beyond December 31, 2011 (the “Outside Date”). (f) Subject to the terms and conditions set forth in this Agreement and to satisfaction or waiver of the Offer Conditions, Purchaser shall, and Parent shall cause Purchaser to, consummate the Offer and accept for payment and pay for (subject to any withholding of Taxes pursuant to Section 1.1(h)) all Shares validly tendered and not validly withdrawn pursuant to the Offer promptly after the Expiration Time (as it may be extended and re-extended in accordance with this Section 1.1). Acceptance for payment of Shares pursuant to and subject to the Offer Conditions upon the Expiration Time is referred to in this Agreement as the “Offer Closing,” and the date on which the Offer Closing occurs is referred to in this Agreement as the “Offer Closing Date.” Unless this Agreement and the Offer are terminated in accordance with Article V prior to the Offer Closing, Parent shall cause Purchaser to extend the Offer for a “subsequent offering period” of not less than twenty (20) Business Days, and Purchaser may, at its sole discretion, extend the Offer for additional “subsequent offering periods” (and one or more extensions thereof), all in accordance with Rule 14d-11 under the Exchange Act. The Offer Documents shall disclose the initial “subsequent offering period” and may, in Purchaser’s sole discretion, provide for such a reservation of right with respect to any comments additional “subsequent offering periods.” Notwithstanding the foregoing and subject to applicable rules of the SEC and the terms and conditions of the Offer, Purchaser expressly reserves the right to delay payment for Shares in order to comply in whole or in part with applicable Law. Any such delay in payment shall be effected in compliance with Rule 14e-1(c) under the Exchange Act. Nothing contained in this Section 1.1 shall affect any termination rights in Article V, as to the Agreement, or in Annex A, as to the Offer. (g) Purchaser shall not terminate the Offer prior to any scheduled Expiration Time without the prior written consent of the Company except in the event that this Agreement is terminated pursuant to Article V. If the Offer is terminated or withdrawn by Purchaser, or this Agreement is terminated pursuant to Article V, prior to the acceptance for payment of the Shares tendered in the Offer, Purchaser shall promptly return, and shall cause any depository acting on behalf of Purchaser to return, all tendered Shares to the registered holders thereof. This Agreement may not be terminated by Parent or Purchaser or their counsel may receive from time to time from for any reason following acceptance for payment of the SEC or its staff with respect to Shares tendered in the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel but prior to responding to any payment for such comments and provide the Company with copies of all such responsesShares. (ch) Parent, Purchaser and any depository acting on behalf of Parent or Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts otherwise payable to any Person pursuant to this Agreement as are may be required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), and applicable Treasury Regulations issued pursuant thereto, or under any provision of any state, local or foreign Tax Law, including applicable Spanish Tax Law. To the extent amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made. Any amounts so withheld shall be paid over promptly to the appropriate taxing authority and Purchaser shall provide prompt written notice to the Persons from whom such amounts are withheld, specifying the amounts so withheld and the taxing authorities to which the withheld amounts have been paid.

The Offer. (a) Provided Subject to the last sentence of this Section 1.1(a) and provided that this Agreement shall not have been terminated in accordance with Article VII and none Section 8.1, as promptly as practicable (but in any event not later than ten business days after the public announcement of Purchaser's intention to commence the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing (and shall not have been waived by PurchaserOffer), Purchaser shall (and Parent shall will cause Purchaser to) to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”"EXCHANGE ACT")) ), the Offer whereby Purchaser will offer to purchase for cash all of the Shares at the Offer Price as promptly as reasonably practicablePer Share Amount, but net to the seller in no event later cash (subject to reduction for any stock transfer taxes payable by the seller if payment is to be made to an individual or entity other than ten (10) Business Days, after the date Person in whose name the certificate for such Shares is registered or any applicable federal back-up withholding). For purposes of this Agreement; provided, however"PERSON" shall mean an individual, that such ten corporation, limited liability company, limited liability partnership, partnership, association, trust, unincorporated organization or other entity or group (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered defined in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred StockholdersSection 13(d)(3) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser14(d)(2) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum ConditionExchange Act), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to if between the right date of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days Effective Time (as defined in Rule 14d-1 under Section 2.2 hereof), the Exchange Act) following outstanding Shares shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the date Per Share Amount will be correspondingly adjusted on a per- share basis to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of commencement shares. The obligation of Parent to cause Purchaser to commence the Offer, or any subsequent scheduled expiration date, if, at to consummate the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation Offer and to accept for payment and to pay for Shares validly tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend in the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall and not exceed ten (10) Business Days (or such longer period as the Company withdrawn in accordance therewith will be subject to, and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the only to, those conditions of the Offer set forth in Annex ANNEX A hereto to be satisfied. Subject to (the "OFFER CONDITIONS"), the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted which are hereby incorporated herein by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offerreference. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided Provided, that this Agreement shall not have been terminated in accordance with Article VII its terms and provided that none of the events or circumstances set forth in clause (iiiiii)(a) of Annex A hereto shall have occurred and be existing (subject to there being no Order enjoining, restraining or otherwise prohibiting the commencement of the Offer and shall not have no Law having been waived by Purchaser)enacted, entered, enforced, promulgated, amended, issued or deemed applicable to Parent, the Company or any subsidiary or affiliate thereof having such effect, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, business days (commencing with the first business day after the date of this Agreement; provided), howeverafter the date hereof. Following such launch, that such ten (10) Business Day deadline each of Parent and Purchaser shall use its reasonable best efforts to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of consummate the Offer. , subject to the terms and conditions hereof. (b) The obligation of Purchaser to accept for payment payment, purchase and pay for any Company Shares tendered pursuant to the Offer (and not validly withdrawn) shall be subject only to the satisfaction or waiver pursuant to the terms hereof of (x) the satisfaction of condition (the condition “Minimum Condition”) that at least that number of Company Shares validly tendered and not withdrawn prior to the expiration date of the Offer there be validly (other than Company Shares tendered in accordance with the terms of the Offer and by guaranteed delivery where actual delivery has not withdrawn that number of Shares whichoccurred), when taken together with added to any Company Shares (if any) then already owned by Parent or any of its Subsidiariescontrolled subsidiaries, represents more than 50% if any, equal a majority of the Shares sum of the then outstanding determined on Company Shares plus (without duplication) a fully-diluted basis (on a “fully-diluted basis” meaning number equal to the number of Company Shares issuable upon the vesting (including vesting solely as a result of the consummation of the Offer), conversion, settlement or exercise of all then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to warrants, options, warrantsbenefit plans, obligations or securities convertible securities (other than the shares of Series D-1 Preferred Stock ownedor exchangeable into Common Shares, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms rights to acquire or be issued Common Shares (including then outstanding Company Stock Options and conditions thereof) (Company RSUs, assuming the “Minimum Condition”effectiveness thereof occurred on the Expiration Date), in each case, with an exercise or conversion price below the Per Share Amount and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A heretohereto (the conditions described in clauses (x) and (y) are collectively referred to as the “Tender Offer Conditions”). Purchaser expressly reserves the right (but shall not be obligated) at any time or from time to time, in its sole discretion, to amend or waive any of such conditions condition (other than the Minimum ConditionCondition which may not be amended or waived), to increase the price per Company Share payable in the Offer Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made without the prior written consent of the Company which no change may be made that decreases the price per Per Share payable Amount (except as provided in the OfferSection 2.1(h)), changes the form of consideration payable in the Offer, reduces adds to the maximum conditions to the Offer, decreases the number of Company Shares sought to be purchased in the Offer, imposes conditions extends the Offer other than in a manner pursuant to and in accordance with the terms of this Section 2.1 or modifies or amends any condition to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner that broadens such conditions or is adverse to the holders of Shares orCompany Shares. (c) Subject to the terms and conditions thereof, except as provided belowthe Offer shall remain open until midnight, extends New York City time, at the expiration date end of the Offer. Notwithstanding twentieth (20th) business day beginning with (and including) the foregoing, subject to date that the right of the parties to terminate this Agreement Offer is commenced (determined in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (iRule 14d-1(g)(3) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following (the “Expiration Date”), unless the period of time for which the Offer is open shall have been extended pursuant to, and in accordance with, the provisions of this Section 2.1 or as required by applicable Laws or the interpretations of the SEC (in which event the term “Expiration Date” shall mean the latest time and date of commencement of as the Offer, as so extended, may expire). (d) Notwithstanding the foregoing or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, anything to the extent permitted by contrary set forth in this Agreement, waived and unless this Agreement shall have been terminated in accordance with Section 9.1, (iii) Purchaser shall extend the Offer for any period required by any rule, regulation regulation, interpretation or interpretation position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or its staff or the staff thereof Nasdaq Stock Market that is applicable to the Offer; provided that Offer and (ii) if, on the initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire, any Tender Offer Condition is not satisfied and has not been waived, then Purchaser shall not extend (and re-extend) the Offer and its expiration date beyond the initial Expiration Date or such subsequent date for successive extension periods of up to 10 business days each (each such extension period, an “Additional Offer Period”); provided, however, that notwithstanding the foregoing clauses (i) and (ii) of this Section 2.1(d), (A) if any of the events set forth in clause (iii)(a) of Annex A shall have occurred on or before the initial Expiration Date or the end of any Additional Offer Period, in no event shall Purchaser be required to extend the Offer beyond the initial Expiration Date or end of such Additional Offer Period, as applicable; (B) if, at the initial Expiration Date or the end of any Additional Offer Period, all of the Tender Offer Conditions, except for the Minimum Condition, are satisfied or have been waived, Purchaser shall only be required to a extend the Offer and its expiration date later than beyond the initial Expiration Date or such subsequent date for one or more additional periods not to exceed an aggregate of 20 business days, to permit the Minimum Condition to be satisfied; and (C) in no event shall Purchaser be required to extend the Offer beyond the Outside Date. Each extension of ; provided further, that the Offer pursuant to clause foregoing clauses (i) and (ii) of the preceding sentence this Section 2.1(d) shall not exceed ten (10) Business Days (be deemed to impair, limit or such longer period as the Company and Purchaser may agree in writing otherwise restrict in any particular instance) or such fewer number manner the right of days that Purchaser reasonably believes are necessary Parent to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of terminate this Agreement and pursuant to Section 9.1. (e) In the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offerevent that this Agreement is terminated pursuant to Section 9.1, Purchaser shall (and Parent shall cause Purchaser to) accept for payment promptly (and pay for all Shares validly tendered in any event within twenty four (24) hours of such termination), irrevocably and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of unconditionally terminate the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied . (or, to the extent permitted by this Agreement, waived by Purchaserf) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price Per Share Amount shall, subject to any required applicable withholding of Taxes, be net to the sellers applicable seller in cash, upon the terms and subject to the conditions of the Offer. The Subject to the terms and conditions of this Agreement, Purchaser or Parent on Purchaser’s behalf shall accept for payment and pay for all Company agrees Shares validly tendered and not withdrawn promptly following the expiration of the Offer; provided, however, that no shares without the prior written consent of the Company, Purchaser shall not accept for payment or pay for any Company Shares if, as a result, Purchaser would acquire less than the number of Company Common Stock held by Shares necessary to satisfy the Minimum Condition. The time at which Purchaser first accepts for payment the Company or any of its Subsidiaries will be Shares tendered in the OfferOffer is referred to as the “Acceptance Time”. If payment of the Per Share Amount is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Company Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other similar Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the satisfaction of Purchaser that such Taxes either have been paid or are not applicable. (bg) As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the “Offer to Purchase”) and forms form of the related letter of transmittal and all any other ancillary documents pursuant to which the Offer documents will be made (collectivelythe Schedule TO, the Offer to Purchase and such other documents, together with all amendmentsexhibits, supplements and exhibits amendments thereto, being referred to herein collectively as the “Offer Documents”). Parent and Purchaser shall use its reasonable best efforts to cause the Offer Documents to be disseminated to the holders of the Company Shares as and in all material respects to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderlaws. Parent and PurchaserPurchaser shall use their respective reasonable best efforts to cause the Offer Documents to comply in all material respects with the applicable requirements of federal securities laws. Parent, on the one hand, Purchaser and the Company, on the other hand, shall Company agree to correct promptly correct any information provided by any of them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall further agree to use reasonable best efforts to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of the Company Shares, in each case, case in all material respects as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderlaws. The Company shall promptly furnish to Purchaser or Parent all information concerning the Company that is required or reasonably requested by Purchaser or Parent in connection with their obligations relating to the Offer Documents or any action contemplated by this Section 2.1(g). Parent and Purchaser shall give the Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents Schedule TO before they are it is filed with the SEC SEC, and disseminated Parent and Purchaser shall give reasonable and good faith consideration to holders of Sharesany comments made by Company and its counsel. In addition, Parent and Purchaser shall agree to (i) provide the Company and its counsel in writing with any written comments that Parent or Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult (ii) use reasonable best efforts to provide a reasonably detailed description of any oral comments Parent, Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, and (iii) unless there has been a Change of Recommendation, provide the Company and its counsel reasonable opportunity to review and comment on any written or oral response to such comments or any proposed amendment to the Offer Documents prior to responding to any such comments and provide the Company filing thereof with copies of all such responsesthe SEC. (ch) If, between the date of this Agreement and the Acceptance Time, the outstanding Company Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount applicable to such Company Share shall be adjusted to the extent appropriate. (i) Notwithstanding anything to the contrary set forth in Section 2.1(d), if, at any Expiration Date, all of the Tender Offer Conditions (including the Minimum Condition) shall have been satisfied or have been waived, but (i) there exists an uncured Financing Failure and (ii) such Financing Failure impedes the ability of Parent or Purchaser to accept Company Shares for payment in the Offer, then Purchaser shall be entitled permitted to deduct extend the Offer for one (1) or more successive periods as determined by Purchaser of up to ten (10) business days each (or any longer period as may be requested by Purchaser and withhold from approved in advance by the consideration otherwise payable Company) until the Outside Date in order to permit such Financing Failure to be cured; provided, however, that notwithstanding any other provision of this Agreement, in the event Purchaser elects to extend the Offer pursuant to and in accordance with this Section 2.1(i), then each of Parent and Purchaser shall be deemed to have irrevocably waived all of the Tender Offer Conditions (or other than the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, which shall remain in connection with any subsequent offering periodfull force and effect) any such amounts and its right to terminate this Agreement pursuant to Sections 9.1(b)(i), 9.1(b)(ii), 9.1(b)(iii), 9.1(c) (as are required to be deducted and withheld with respect it relates to the making Tender Offer Condition contemplated by clause (iii)(d) of such payment under Annex A, but not as it relates to the Internal Revenue Code Tender Offer Condition contemplated by clause (iii)(e) of 1986, as amended (the “Code”Annex A), or under 9.1(d) (it being acknowledged and agreed that, (A) notwithstanding such irrevocable waiver, without the prior written consent of the Company, neither Parent nor Purchaser shall be permitted to accept for payment (or pay for) any provision Company Shares that are tendered in the Offer unless the Minimum Condition is satisfied at such time, (B) during any extension of statethe Offer pursuant to this Section 2.1(i), local the Company shall not exercise any remedies against Parent or foreign Tax LawPurchaser for failure to accept for payment (or pay for) any Company Shares that are tendered in the Offer, and (C) if for any reason other than a failure of the Tender Offer Condition contemplated by clause (iii)(e) of Annex A, Purchaser does not accept for payment (and pay for) all Company Shares validly tendered in the Offer and not properly withdrawn at the expiration of such successive period(s), then Parent and Purchaser shall be deemed to be in breach of this Agreement).

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII Section 9.01 below and none of the events or circumstances set forth in clause clauses (iiia) through (i) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser)continuing to exist, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under 14d-2(a) of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepracticable after the date hereof, but in no event later than ten (10) Business Days, 10 business days after the date initial public announcement of the execution and delivery of this Agreement; provided, however, that such ten (10) Business Day deadline to commence . The initial expiration date of the Offer will shall be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as 20 business days after the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the condition (xthe "Minimum Condition") that at least the satisfaction number of Shares that shall constitute fifty and six-tenths percent (50.6%) of the condition that at then outstanding Shares on a Fully Diluted Basis shall have been validly tendered and not withdrawn prior to the expiration of the Offer there and also shall be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required subject to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of each of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (condition other than the Minimum Condition), to increase the cash price per Share payable in the Offer Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that without the Company's prior written consent, no change may be made without the prior written consent of the Company which decreases the cash price per Share payable in the Offer, changes the form of consideration payable in the Offer, Offer or which reduces the maximum number of Shares sought to be purchased in the Offer, Offer or which imposes conditions to the Offer in addition to, or modifies or amends, the conditions to those set forth in Annex A hereto, waives the Minimum Condition hereto or makes any other changes in the terms of the Offer that are in any manner adverse to which otherwise adversely affects the holders of Shares or, except as provided below, extends the expiration date of the OfferShares. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at without the request consent of the Company shallCompany, (i) extend the Offer (i) beyond from time to time for the initial scheduled expiration date, shortest time periods which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following Purchaser reasonably believes are necessary until the date of commencement consummation of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) extend the Offer for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “"SEC”) "), or the staff thereof thereof, applicable to the Offer; provided that Purchaser shall not be required to , or (iii) extend the Offer to a for an aggregate period of not more than 10 business days beyond the latest applicable date later than the Outside Date. Each extension of the Offer pursuant to that would otherwise be permitted under clause (i) of the preceding sentence shall not exceed ten or (10ii) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In additionsentence, if, at the expiration date as of the Offersuch date, all of the conditions to the Offer have been Purchaser's obligations to accept for payment Shares are satisfied (oror waived, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the OfferOffer equals 80% or more, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes but less than 90% %, of outstanding Shares on a Fully Diluted Basis. In addition, if, on the then applicable expiration date of the Shares then outstandingOffer, determined on a fullythe sole condition(s) remaining unsatisfied are (i) the failure of the waiting period under the Hart-diluted basis Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR Act") or under any applicable material non-United States statutes or regulations, (ii) the process pursuant to the Exon-Florxx Xxxvision (as defined in Section 1.1(a))hereinafter defined) has not been completed, and/or (iii) any waiting period applicable to the consummation of the Offer under the Arms Regulations shall not have expired or been terminated then, Purchaser mayshall extend the Offer from time to time until 11 7 the earlier to occur of (i) January 31, or at 2001 and (ii) the Company’s request (subject fifth business day after the latest to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) occur of (A) give the required notice expiration or termination of such subsequent offering the applicable waiting period and under the HSR Act or any applicable material non-United States statutes or regulations, (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during satisfaction of any “subsequent offering period,” in each case in accordance with Rule 14d-11 requirements under the Exchange Act. On Exon-Florxx Xxxvision, as applicable, and (C) the expiration or prior to termination of the date that Purchaser becomes obligated to pay for Shares pursuant to waiting period under the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the OfferArms Regulations. The Offer Price Per Share Amount shall, subject to any required applicable withholding of Taxestaxes, be net to the sellers seller in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares Purchaser shall pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in Shares for payment pursuant to the Offer. (b) As promptly as practicable on . Notwithstanding the date immediately preceding sentence and subject to the applicable rules of commencement the SEC and the terms and conditions of the Offer, Parent and Purchaser shall file expressly reserves the right to delay payment for Shares in order to comply in whole or in part with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offerapplicable laws. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it Any such delay shall be or shall have become false or misleading effected in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed compliance with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (cRule 14e-1(c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code Securities Exchange Act of 19861934, as amended (the “Code”"Exchange Act"). If the payment equal to the Per Share Amount in cash (the "Merger Consideration") is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the certificate surrendered, or under any provision shall have established to the satisfaction of state, local Purchaser that such taxes either have been paid or foreign Tax Laware not applicable.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII V hereof and none of the events or circumstances conditions set forth in clause Annex I hereto (iiithe “Tender Offer Conditions”) of Annex A hereto shall have occurred and or be existing (and shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser toi) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (including the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) and within the Offer to purchase all meaning of The Securities Regulation Code of the Shares at Philippines (including the Offer Price rules and regulation promulgated thereunder, the “SRC”), as promptly as reasonably practicable, practicable (but in any event no event later than ten the Final Launch Date (10as defined below)), commence (such date on which the offer commences in the United States, the “Launch Date”) Business Daysan offer to purchase (or, after if required by applicable Law commence separate offers in the date of this Agreement; provided, however, that such ten (10United States and the Philippines to purchase) Business Day deadline to commence all outstanding Common Shares and ADSs at the Offer will be extended Price, (ii) as promptly as reasonably practicable (on or prior to such date as the Company is ready to Launch Date), file a Tender Offer Statement on Schedule TO and all other necessary documents with the Schedule 14D-9 on United States Securities and Exchange Commission (the same date as “SEC”) and a Form 19-1 with the commencement Philippine Securities and Exchange Commission (the “PSEC”) and make all announcements, deliveries, mailings and telephonic notices required by Rule 14d-3 under the Exchange Act and under Rule 19 of the SRC, in each case in connection with the Offer (together, such documents as may be amended and supplemented, the “Offer Documents”) and (iii) use reasonable efforts to consummate the Offer, subject to the terms and conditions thereof. Company shall cooperate and give all reasonable assistance to Purchaser to enable Purchaser to comply with the foregoing provisions, including promptly and accurately providing to Purchaser any and all information and documents reasonably requested by Purchaser for this purpose. The obligation of Purchaser to accept for payment and or pay for any Shares tendered pursuant to the Offer shall will be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) Purchaser of the other conditions set forth in Annex A I hereto. Company agrees that no Shares held by Company or any of its Subsidiaries will be tendered to Purchaser pursuant to the Offer. For the purpose of this Agreement, the “Final Launch Date” shall be the date that is twenty-five (25) business days following public announcement of this Agreement; provided; however, if at 11:59 pm New York City time on the twenty-fifth business day following public announcement of this Agreement, either the SEC or PSEC has not granted in writing exemptive relief from compliance with, and taken a “no action” position with respect to, (with respect to the SEC) the rules promulgated under the Exchange Act and (with respect to the PSEC) the rules and regulations promulgated under the PCC and SRC, in connection with the Offer, as described in Schedule 1.1(a) attached hereto (the “No Action Relief”), but Purchaser (i) has submitted to the SEC or PSEC a draft or final request for such relief and (ii) is using all reasonable efforts to pursue the No Action Relief, such time period shall automatically extend until the date that is five (5) business days after Purchaser has received the No Action Relief; provided further that if, on what would otherwise be the Final Launch Date, Purchaser is still preparing or finalizing the Offer Documents and/or making or finalizing preparations to commence the Offer and is using all reasonable efforts to do so, the Final Launch Date shall automatically extend for an additional ten (10) business days. The obligation of the Purchaser to commence the Offer as provided in this Section 1.1(a) is subject to Purchaser not being entitled to terminate this Agreement pursuant to Section 5.4(d). Following the date hereof, the parties hereto shall use their reasonable efforts to commence the Offer as promptly as reasonably practicable. (b) Purchaser expressly reserves the right to amend or waive any of such the conditions set forth in Annex I hereto (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, provided that no change may be made without the prior written consent of Company, Purchaser shall not decrease the Company which decreases the price per Share payable in the Offer, changes Offer Price or change the form of consideration payable in the Offer, reduces decrease the maximum number of Shares sought to be purchased in the Offer, imposes impose additional conditions to the Offer in addition toOffer, or modifies or amends, the conditions set forth in Annex A hereto, waives amend the Minimum Condition (as defined in Annex I hereto) or makes amend any other changes in the terms term of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends Shares. The Offer shall remain open at least until the expiration date that is 20 business days after the commencement of the Offer. Notwithstanding Offer (the foregoing“Expiration Date”), subject to unless Purchaser shall have extended the right period of time for which the parties to terminate this Agreement Offer is open in accordance with Section 7.1the terms of this Agreement, Purchaser may, in which event the term “Expiration Date” shall mean the latest time and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (date as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration dateas so extended, ifmay expire. If, at the scheduled expiration of the Offerany Expiration Date, any of the conditions to Tender Offer Conditions are not satisfied or waived by Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to may extend the Offer from time to a date later than the Outside Date. Each extension of time; provided, however, Purchaser may not extend the Offer pursuant to clause (i) of beyond the preceding sentence shall not exceed ten (10) Business Days (or such longer period as 60th day following the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfiedLaunch Date without Company’s prior written consent. Subject to the terms of the Offer and this Agreement and the satisfaction or earlier waiver of all the conditions Tender Offer Conditions as of the Offer set forth in Annex A hereto as of any expiration date of the OfferExpiration Date, Purchaser shall (and Parent shall cause Purchaser to) will accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (as soon as practicable but in any event no event later than two ten (210) Business Days business days after such expiration the Expiration Date (the date of the Offer). In addition, if, at the expiration date of the Offer, that Purchaser accepts for payment all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not validly withdrawn pursuant to the OfferOffer shall be referred to as the “Acceptance Date”), when taken together with the date that Purchaser pays for such Shares, if anywhich shall in any event occur no later than ten (10) business days after the Acceptance Date, then owned by Parent shall be referred to as the “Payment Date” and its Subsidiariesfor the avoidance of doubt, constitutes the Payment Date for the Offer in respect of the ADSs will be as promptly as practicable, subject to applicable Law, on the Acceptance Date and references in this Agreement to Payment Date relating to ADSs will be considered to mean the relevant Acceptance Date). Without the prior written consent of Company, Purchaser shall not accept for payment or pay for any Shares in the Offer if, as a result, Purchaser would acquire less than 90% the number of Shares necessary to satisfy the Shares then outstanding, determined on a fully-diluted basis Minimum Condition (as defined in Section 1.1(aAnnex I)), . Purchaser may, or at the Company’s request (subject to applicable Laws) shall, may provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such a subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during after the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case Expiration Date, in accordance with Rule 14d-11 under the Exchange Act. On or prior to Act and Rule 19 under the date that Purchaser becomes obligated to pay SRC immediately following the Acceptance Date on substantially the same terms as the Offer and keep such subsequent offer open for Shares pursuant to at least 20 business days after the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO such subsequent offering period (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer DocumentsSubsequent Offering”). Parent and Purchaser As used in this Agreement, a “business day” shall cause the Offer Documents to be disseminated to the holders mean any day of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaseryear other than a Saturday, Sunday or any other day on the one handwhich banks located in New York, and the CompanyNew York USA or Makati City or Manila, on the other hand, shall promptly correct any information provided by them Philippines are generally closed for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsesbusiness. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement The Company shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after . The obligation of the date of this Agreement; provided, however, that such ten (10) Business Day deadline Company to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser and to accept for payment payment, and to pay for Shares any shares of WorldPort Common Stock tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives EXHIBIT D (the Minimum Condition or makes any other changes in the terms "OFFER CONDITIONS"). As soon as reasonably practicable following execution of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement and a Rule 13e-3 Transaction Statement on Schedule TO TO, including all exhibits thereto (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule "SCHEDULE TO”") with respect to the Offer, the Merger and the other transactions contemplated hereby. The Schedule TO shall contain or incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and all other ancillary Offer any related documents (collectivelythe Schedule TO, the Offer to Purchase and such other documents, together with all amendments, supplements and exhibits or amendments thereto, collectively, the “Offer Documents”"OFFER DOCUMENTS"). Parent Heico and Purchaser JOHCM shall cause each use their commercially reasonable efforts to ensure that (i) the Offer Documents shall comply in all material respects with the requirements of the Exchange Act, and (ii) on the date filed with the SEC and on the date first published, sent or given to WorldPort's stockholders, the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be disseminated stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. If at any time prior to the holders Effective Time, Heico or JOHCM discovers any information relating to either party, or any of their respective Affiliates, officers or directors, that should be set forth in an amendment or supplement to the schedule to, so that the document will not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the Shares as circumstances under which they were made, not misleading, then the party that discovers any misleading information shall promptly notify the other parties hereto and an appropriate amendment or supplement describing the information shall be promptly filed with the SEC and, to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaserlaw or regulation, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and disseminated to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders shareholders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsesWorldPort. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex Exhibit A hereto shall have occurred and be existing continuing, as promptly as practicable (but in any event not later than five business days after the public announcement of the execution and shall not have been waived by Purchaserdelivery of this Agreement), Purchaser Sub shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) the Offer ), an offer to purchase (the "Offer") all outstanding shares of the Shares Company Common Stock at a price of $11.25 per share, net to the seller in cash (the "Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the OfferConsideration"). The obligation of Purchaser Parent and Sub to commence the Offer, consummate the Offer, accept for payment and to pay for Shares shares of Company Common Stock validly tendered pursuant to in the Offer and not withdrawn shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other those conditions set forth in Annex Exhibit A hereto. Purchaser . (b) Parent and Sub expressly reserves reserve the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in amend or modify the terms of the Offer; provided, howeverexcept that, that no change may be made without the prior written consent of the Company which decreases Company, Sub shall not (and Parent shall not cause Sub to): (i) decrease the price per Share payable in the OfferOffer Consideration, changes change the form of consideration payable in the Offer, reduces Offer Consideration or decrease the maximum number of Shares sought pursuant to be purchased in the Offer, imposes conditions (ii) amend or waive the condition that there shall be validly tendered and not withdrawn prior to the time the Offer in addition toexpires a number of shares of Company Common Stock which constitutes a majority of the Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" having the following meaning, as of any date: the number of shares of Company Common Stock outstanding, together with Shares which the Company may be required, now or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer future, to issue pursuant to options, warrants or other rights or obligations outstanding at that are in any manner adverse to the holders of Shares ordate), except as provided below, extends (iii) extend the expiration date of the Offer. Notwithstanding Offer (except that Sub may extend the foregoing, subject to the right expiration date of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (ia) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. United States Securities and Exchange Commission (the “"SEC”"), (b) or the staff thereof applicable to the Offer; provided that Purchaser shall for such periods as Sub may reasonably deem necessary (but not be required to extend the Offer to a date later than the Outside Date. Each extension of 60th calendar day after the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of commencement) in the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant event that any condition to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser maysatisfied, or at the Company’s request (subject to applicable Lawsc) shall, provide for one or more “subsequent offering periods” times for an aggregate period of up to 15 days (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on exceed 60 calendar days from the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”commencement) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all for any reason other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use than those specified in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.immediately preceding

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII Section 9.01 hereof and that none of the events or circumstances set forth in clause clauses (iiia) through (h) of Annex ANNEX A hereto shall have occurred and or be existing (and shall not have been waived by Purchaser)continuing, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”"EXCHANGE ACT")) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepracticable after the date hereof, but in no event later than ten seven (107) Business Days, business days after the date initial public announcement of the execution of this Agreement; providedPROVIDED; HOWEVER, howeverin the event the Company shall have failed to provide mailing labels to Purchaser pursuant to Section 2.02 hereof within five (5) business days after the initial public announcement of the execution of this Agreement, that such ten (10) Business Day deadline to Purchaser shall commence the Offer will be extended to within two (2) business days of receipt of such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. labels. (b) The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition (the "MINIMUM CONDITION") that at least the number of Shares that, when added to Shares, if any, already owned by Parent, shall constitute (A) a majority of the then outstanding Common Shares (including, without limitation, all Common Shares issuable upon the conversion of the Series A Shares or upon the exercise or conversion of any options, warrants, rights or other convertible securities), or such higher percentage of such class of securities as may be required to approve the Merger pursuant to the Restated Certificate of Incorporation of the Company, as amended from time to time, or applicable Law, and (B) a majority of the then outstanding Series A Shares, or such higher percentage of such class of securities as may be required to approve the Merger pursuant to the Restated Certificate of Incorporation of the Company, as amended from time to time, or applicable Law, shall have been validly tendered and not withdrawn prior to the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”)Offer, and (y) the satisfaction (or waiver by Purchaser) of each of the other conditions set forth in Annex ANNEX A hereto. . (c) Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition)condition, to increase the price per Per Share payable in Common Amount and the Offer Per Share Preferred Amount, and to make any other changes in the terms and conditions of the Offer; providedPROVIDED, howeverHOWEVER, that no change may be made without the prior written consent of the Company which (i) decreases the price per Per Share payable in Common Amount or the OfferPer Share Preferred Amount, changes (ii) increases the form of consideration payable in Per Share Preferred Amount such that the OfferPer Share Preferred Amount is greater than the amount obtained by multiplying the Per Share Common Amount by two (2) or the Per Share Common Amount such that the Per Share Common Amount is no greater than the amount obtained by dividing the Per Share Preferred Amount by two (2), (iii) reduces the maximum number of Shares sought to be purchased in the Offer, (iv) changes the form of consideration to be paid in the Offer, (v) extends the Offer except as provided in this Section 2.01, (vi) imposes conditions to the Offer in addition to, to those set forth in ANNEX A hereto or modifies or amends, amends the conditions set forth in Annex ANNEX A heretoto broaden the scope of such conditions, (vii) reduces or waives the Minimum Condition without the prior approval of the Company, or makes (viii) amends any other changes in the terms of the Offer that are in any a manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the OfferShares. Notwithstanding the foregoing, subject in addition to the right of the parties to terminate this Agreement in accordance with Section 7.1its rights under paragraph (e) below, Purchaser may, and at without the request consent of the Company shallCompany, (A) extend the Offer for a period of not more than thirty (i30) business days beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s 's obligation to accept Shares for payment and to pay for Shares tendered payment, shall not be satisfied oror waived, to or (B) extend the extent permitted by this Agreement, waived and (ii) Offer for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “"SEC”) "), or the staff thereof thereof, applicable to the Offer. In addition, if, on the initial scheduled expiration date of the Offer, the sole condition remaining unsatisfied is the failure of the waiting period, if any, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), to have expired or been terminated, then Purchaser may extend the Offer from time to time until the earlier to occur of (i) December 31, 2002 and (ii) the fifth (5th) business day following the public announcement of the expiration or termination of the applicable waiting period under the HSR Act. Parent and Purchaser agree that, if any one or more of the conditions to the Offer set forth on ANNEX A are not satisfied and none of the events set forth in paragraphs (b), (f) or (g) of ANNEX A that would permit Purchaser not to accept Shares tendered for payment has occurred, then, PROVIDED that such other conditions set forth in ANNEX A are reasonably capable of being satisfied within thirty (30) days in Parent and Purchaser's sole judgment, Purchaser shall, at the request of the Company, extend the Offer from time to time unless any such condition is no longer reasonably capable of being satisfied within such thirty (30) day period in Parent and Purchaser's sole judgment; provided that PROVIDED, HOWEVER, in no event shall Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause beyond December 31, 2002. (id) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement The Per Share Common Amount and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price Per Share Preferred Amount shall, subject to any required applicable withholding of Taxestaxes, be paid net to the sellers seller in cash, upon the terms and subject to the conditions of the Offer. The Company agrees Purchaser shall pay for all Shares validly tendered and not withdrawn promptly following the acceptance of Shares for payment pursuant to the Offer. If the payment equal to the Per Share Common Amount or Per Share Preferred Amount or both, as the case may be, in cash is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that no shares the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other taxes required by reason of Company the payment of the Per Share Common Stock held Amount or Per Share Preferred Amount or both, as the case may be, to a person other than the registered holder of the certificate surrendered, or shall have established to the reasonable satisfaction of Purchaser that such taxes either have been paid or are not applicable. (e) Purchaser may, in its sole discretion, provide a "subsequent offering period" as contemplated by Rule 14d-11 under the Company or any Exchange Act following its acceptance for payment of its Subsidiaries will be tendered Shares in the Offer. (bf) As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule "SCHEDULE TO”") with respect to the Offer. The Schedule TO shall contain or shall incorporate by reference an offer to purchase (the "OFFER TO PURCHASE") and forms of the related letter of transmittal and all any related summary advertisement (the Schedule TO, the Offer to Purchase and such other ancillary Offer documents (collectivelydocuments, together with all amendments, supplements and exhibits amendments thereto, being referred to herein collectively as the “Offer Documents”"OFFER DOCUMENTS"). Parent, Purchaser and the Company agree to correct promptly any information provided by any of them for use in the Offer Documents that shall have become false or misleading, and Parent and Purchaser shall further agree to take all steps necessary to cause the Schedule TO, as so corrected, to be filed with the SEC, and the other Offer Documents Documents, as so corrected, to be disseminated to the holders of the Shares Shares, in each case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderlaws. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause give the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed prior to the filing thereof with the SEC and disseminated or dissemination to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with comments and shall provide the Company and its counsel prior with a reasonable opportunity to responding participate in the response of Parent or Purchaser to any such comments and provide the Company with copies of all such responsescomments. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing As promptly as reasonably practicable (and shall not have been waived in any event within fifteen (15) Business Days after the date of this Agreement, subject to compliance by Purchaserthe Company of its obligations pursuant to Section 1.2), the Purchaser shall (and Parent shall cause Purchaser to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) , the Offer to purchase all of the outstanding Shares for cash at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement Price. The consummation of the Offer. The , and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer (and any obligation of Parent to cause the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer), shall be subject only to to: (xi) the satisfaction of the condition that at the expiration of the Offer there be being validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the Expiration Date that number of Shares which, when taken together with the number of Shares (if any) then owned by Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, represents more than 50% at least a majority of the Shares then outstanding determined on and no less than a fully-diluted basis majority of the voting power of the shares of capital stock of the Company then outstanding and entitled to vote upon the adoption of this Agreement and approval of the Merger (on a “fully-diluted basis” meaning excluding from the number of tendered Shares, but not from the number of outstanding Shares, Shares then issued and outstanding plus all shares of Company Common Stock which tendered pursuant to guaranteed delivery procedures (to the Company may be required to issue as extent such procedures are permitted by the Purchaser) that have not yet been delivered in settlement or satisfaction of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereofguarantee) (collectively, the “Minimum Condition”), ) and (yii) the satisfaction (satisfaction, or waiver by Purchaser) the Purchaser (to the extent permitted in Annex I), of each of the other conditions set forth in Annex A heretoI. For the purposes of determining the Minimum Condition, the “number of Shares then outstanding” and “number of shares of capital stock of the Company outstanding” shall mean, without duplication, (i) the aggregate number of Shares then-outstanding, plus (ii) the aggregate number Shares subject to then-outstanding vested Company RSUs and vested Company PSUs that have not yet settled into Shares that are then-outstanding, plus (iii) the aggregate number of Shares that the Company is required to issue upon conversion, settlement or exercise of all then-outstanding Company Options for which the Company has received notices of exercise or conversion and payment of the applicable aggregate exercise price prior to the expiration of the Offer and for which the Company has not yet issued Shares. Other than the Minimum Condition, and subject to Annex I, the conditions to the Offer set forth in this Section 1.1 and clause (c) of the initial paragraph of Annex I are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such conditions (except if any breach of the Merger Agreement or other action or inaction by Parent or the Purchaser has been a proximate cause of or proximately resulted in the failure or the non-satisfaction of any such condition) and, subject to the other terms of this Agreement (including Annex I), may be waived by the Purchaser, in its sole discretion, in whole or in part at any time and from time to time. (b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by the Purchaser (to the extent permitted by Annex I), of each of the other conditions set forth in Annex I, the Purchaser shall, and Parent shall cause the Purchaser to, upon the Expiration Date, cause the Acceptance Time to occur, and the Purchaser shall, and the Parent shall cause the Purchaser to, accept for payment all Shares validly tendered and not properly withdrawn pursuant to the Offer upon the occurrence of the Acceptance Time and pay for such Shares as promptly as practicable (and in any event not more than two (2) Business Days) following the Acceptance Time. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid, without interest, subject to any applicable withholding taxes. To the extent any such amounts are so withheld and paid to the applicable Governmental Authority, such amounts shall be Table of Contents treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. The Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made without that, notwithstanding anything herein to the prior written consent of contrary, except as approved in advance by the Company which decreases in writing, the price per Share payable in Purchaser shall not, and Parent shall cause Purchaser not to, (i) decrease the OfferOffer Price, changes (ii) change the form of consideration payable in the OfferOffer (other than adding consideration), reduces (iii) reduce the maximum number of Shares sought to be purchased in the Offer, imposes (iv) amend or waive the Minimum Condition or the condition set forth in clauses (a), (b), (c)(ii), or (c)(viii) of Annex I, (v) add to or amend any of the other conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A heretoI, waives the Minimum Condition or makes any other changes (vi) except as provided in the terms of Section 1.1(e), extend the Offer that are or (vii) otherwise amend the Offer in any manner that is adverse to the holder of Shares. Notwithstanding anything to the contrary in this Agreement, the Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares, occurring on or after the date of this Agreement and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares or, except the same economic effect as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate contemplated by this Agreement prior to such action; provided, that nothing in this sentence shall be construed to permit the Company to take any action with respect to its securities that is not permitted by the terms of this Agreement. (d) Unless extended in accordance with Section 7.1the terms of this Agreement, Purchaser may, and the Offer shall initially expire at midnight (New York City time) at the request end of the Company shall, extend day on the Offer (i) beyond the initial scheduled expiration date, which shall be date that is twenty (20) business days Business Days (as defined calculated in accordance with Rule 14d-1 14d-1(g)(3) under the Exchange Act) following the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied “Initial Expiration Date”) or, to if the extent Initial Expiration Date has been extended as required by or otherwise permitted by this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). (e) If on the then scheduled Expiration Date, any condition to the Offer (including the Minimum Condition and the other conditions set forth in Annex I) has not been satisfied, or, where permitted by applicable Law, this Agreement and Annex I, waived by the Purchaser, the Purchaser shall (and Parent shall cause the Purchaser to), extend the Offer for successive periods of ten (ii10) Business Days each in order to permit the satisfaction of such conditions until satisfied or this Agreement is terminated in accordance with its terms. In addition, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulation regulations, interpretations or interpretation positions of the U.S. United States Securities and Exchange Commission (the “SEC”) or its staff or any applicable stock exchange, including the staff thereof applicable NYSE. Notwithstanding anything to the Offer; provided that contrary in this Agreement, the Purchaser shall not be required to extend the Offer to a date later on more than two (2) occasions in the Outside Date. Each extension event that all of the conditions to the Offer have been satisfied or waived (if permitted hereunder) except for the Minimum Condition. Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to clause ARTICLE VII hereof. (if) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of Company, except if this Agreement and is terminated pursuant to ARTICLE VII. If this Agreement is terminated pursuant to ARTICLE VII, the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment promptly (and pay for all Shares validly tendered in any event within 48 hours of such termination), irrevocably and not unconditionally terminate the Offer. If the Offer is terminated or withdrawn pursuant by the Purchaser, or this Agreement is terminated prior to the Offer promptly after it is permitted to do so under applicable Laws (but purchase of Shares in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give promptly return, and shall cause any depositary acting on behalf of the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case Purchaser to return, in accordance with Rule 14d-11 under the Exchange Act. On or prior applicable Law, all tendered Shares to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offerregistered holders thereof. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement nothing shall not have occurred that, had the Offer been terminated in accordance with Article VII and none commenced, would give rise to a right to terminate the Offer pursuant to any of the events or circumstances conditions set forth in clause Annex I hereto, as promptly as practicable and in any event within ten days after the date hereof (iii) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaseror such later date as the parties may mutually agree in writing), Purchaser Merger Subsidiary shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)0000 Xxx) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The Merger Subsidiary’s obligation of Purchaser to accept for payment and pay for any Company Shares tendered pursuant to in the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there shall be validly tendered in accordance with the terms of the Offer, immediately prior to the scheduled expiration of the Offer (as it may be extended hereunder) and not withdrawn that withdrawn, a number of Company Shares whichthat, when taken together with the Company Shares (if any) then directly or indirectly owned by Parent or any of its SubsidiariesParent, represents more than 50% at least a majority of the all Company Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), ) and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser I. Merger Subsidiary expressly reserves the right to waive any of such the conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes change in the terms of or conditions to the Offer; providedprovided that unless otherwise provided by this Agreement or previously approved by the Company in writing, however(i) the Minimum Condition may not be waived, that (ii) no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, that changes the form of consideration payable in to be paid pursuant to the Offer, reduces decreases the maximum Offer Price or the number of Company Shares sought to be purchased in the Offer, Offer or imposes conditions to the Offer in addition toto those set forth in Annex I, or modifies or amends, amends the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are I in any manner materially adverse to the holders of Shares orCompany Shares, and (iii) the Offer may not be extended except as provided belowset forth in this Section 2.01(a). Subject to the terms and conditions of this Agreement, extends unless the Offer is extended in accordance with the terms of this Agreement, the Offer shall expire at 5:00 p.m., New York City time, on the date that is 21 Business Days (for this purpose calculated in accordance with Section 14d-1(g)(3) under the 0000 Xxx) after the date that the Offer is commenced. Unless this Agreement or the Offer is terminated in accordance with its terms, Merger Subsidiary shall extend the Offer from time to time (1) if, at the scheduled or extended expiration date of the Offer. Notwithstanding , the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, Minimum Condition or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered the Offer set forth in clause (I)(B) of the first paragraph of Annex I shall not be have been satisfied oror waived, from time to time, until the extent permitted by this Agreement, waived earliest to occur of (x) the satisfaction or waiver of such conditions and (iiy) the End Date, and (2) for any period required by any rule, regulation regulation, interpretation or interpretation position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the staff thereof applicable to the OfferOffer or any period required by Applicable Law; provided that Purchaser Merger Subsidiary shall not be required to extend the Offer to a date later than beyond the Outside End Date. Each extension Following expiration of the Offer pursuant to clause Offer, Merger Subsidiary may, in its sole discretion, provide a subsequent offering period (i“Subsequent Offering Period”) in accordance with Rule 14d-11 of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as 1934 Act. Subject to the Company foregoing, and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary upon the terms and subject to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser Merger Subsidiary shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer (A) as promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offeras practicable, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Company Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% promptly after the final expiration of the Shares then outstandingOffer, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and all Company Shares validly tendered in any Subsequent Offering Period, promptly pay for all after such Company Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offerare validly tendered. The Offer Price shallpayable in respect of each Company Share validly tendered and not withdrawn pursuant to the Offer or validly tendered in any Subsequent Offering Period shall be paid net to the holder thereof in cash, subject to reduction for any required applicable withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly soon as practicable on the date of commencement of the Offer, Parent and Purchaser Merger Subsidiary shall (i) file with the SEC a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, amendments and supplements thereto and including exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO that shall contain include as exhibits or incorporate incorporated by reference an offer thereto, the Offer to purchase Purchase and forms of the related letter of transmittal and all other ancillary summary advertisement, if any, in respect of the Offer documents (collectively, together with all amendments, any amendments or supplements and exhibits thereto, the “Offer Documents”). Parent , and Purchaser shall (ii) cause the Offer Documents to be disseminated to the holders of Company Shares. The Company shall promptly furnish to Parent and Merger Subsidiary in writing all information concerning the Shares as and to the extent Company that may be required by applicable federal securities Laws and rules and regulations promulgated thereunderlaws or reasonably requested by Parent or Merger Subsidiary for inclusion in the Schedule TO or the Offer Documents. Parent and PurchaserEach of Parent, on the one hand, Merger Subsidiary and the Company, on the other hand, shall Company agrees promptly to correct any information provided by them it for use in the Schedule TO and the Offer Documents if and to the extent that it shall be or such information shall have become false or misleading in any material respect, and . Parent and Purchaser shall Merger Subsidiary agree to take all steps necessary to cause the Offer Documents Schedule TO as so corrected to be filed with the SEC and the Offer Documents as so corrected to be disseminated to holders of the Company Shares, in each case, case as and to the extent required by applicable U.S. federal securities Laws and rules and regulations promulgated thereunderlaws. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Schedule TO and the Offer Documents each time before they are any such document is filed with the SEC SEC, and disseminated to holders of Shares. In addition, Parent and Purchaser Merger Subsidiary shall give reasonable and good faith consideration to any comments made by the Company and its counsel. Parent and Merger Subsidiary shall provide the Company and its counsel with (A) any comments or other communications, whether written or oral, that Parent or Purchaser Parent, Merger Subsidiary or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or Offer Documents promptly after the receipt of such commentsthose comments or other communications, consult and (B) a reasonable opportunity to participate in the response of Parent and Merger Subsidiary to those comments and to provide comments on that response (to which reasonable and good faith consideration shall be given), including by participating with Parent and Merger Subsidiary or their counsel in any discussions or meetings with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsesSEC. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII Section 9.01, and that none of the events described in any of paragraphs (c) or circumstances set forth in clause (iiid) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser)occurred, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and amended (together with the rules and regulations promulgated thereunder (thereunder, the “Exchange Act”)) ), the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepracticable after the date hereof, but in any event by no event later than ten (10) Business Days, business days after the date initial public announcement of the execution of this Agreement; provided, howeverat a price per Share equal to the Per Share Amount (as adjusted as provided in Section 2.01(g), that such ten (10if applicable) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement and in compliance with Section 14(d) of the Offer. Exchange Act and all other provisions of applicable securities laws. (b) The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”) that there shall have been tendered and not validly withdrawn prior to the expiration of the Offer at least the number of Shares that, when added to the Shares, if any, already owned by Parent and Purchaser or any of their respective affiliates, and without giving effect to any treasury shares, constitute a majority of the then outstanding Shares (including all Shares issuable upon the exercise or conversion of any options, warrants, rights or other convertible securities that, if applicable, have a per share exercise or “strike” price that is less than the Per Share Amount, but only to the extent that such options, warrants, rights or other securities have vested or could (by their respective terms) become vested on or prior to the Termination Date, including in connection with the Transactions), and (y) the satisfaction (or waiver by Purchaser) of each of the other conditions set forth in Annex A hereto. The obligation of Purchaser to accept for payment Shares tendered pursuant to the Offer shall not be subject to any other conditions. (c) Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition)condition set forth in Annex A, to increase the price per Per Share payable in the Offer Amount, and to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made without the prior written consent of the Company which (i) decreases the price per Per Share payable in the OfferAmount, changes the form of consideration payable in the Offer, (ii) reduces the maximum number of Shares sought to be purchased in the Offer, (iii) changes the form of consideration to be paid in the Offer, (iv) extends the Offer except as provided in this Section 2.01, (v) imposes conditions to the Offer in addition toto those set forth in Annex A hereto or amends the conditions set forth in Annex A, (vi) amends or supplements any other terms of the Offer in a manner adverse, or modifies that could reasonably be expected to be adverse, to the Company or amendsthe holders of the Shares, or (vii) changes the Minimum Condition. Unless extended as provided in this Agreement, the offer shall expire on the date (the “Initial Expiration Date”) that is twenty (20) business days following the commencement of the Offer (calculated as set forth in Rule 14d-1(g)(3) and Rule 14e-1(a) under the Exchange Act). Notwithstanding the foregoing, if, on the Initial Expiration Date or any subsequent date as of which the Offer is scheduled to expire (a “Subsequent Expiration Date”), any of the conditions set forth in Annex A heretois not satisfied (other than any conditions which by their nature are to be satisfied at the Acceptance Time) or has not been waived, waives the Minimum Condition or makes any other changes in the terms of then the Offer that are and its expiration shall automatically be extended (and re-extended) beyond the Initial Expiration Date or such Subsequent Expiration Date for one or more periods of ten (10) business days (or such other number of business days as may be jointly determined by Purchaser and the Company) per extension, with no such period ending later than June 15, 2008 (the “Termination Date”), in any manner adverse order to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, permit such condition to be satisfied (subject to the right of Purchaser to waive any condition (other than the parties to terminate Minimum Condition) in accordance with this Agreement on the Initial Expiration Date or any Subsequent Expiration Date and accept for payment Shares tendered pursuant to the Offer (and not validly withdrawn)). The Offer may not be terminated prior to its scheduled expiration (as such expiration may be extended and re-extended in accordance with this Agreement), unless this Agreement is terminated in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer 9.01. (id) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price Per Share Amount shall, subject to any required applicable withholding of Taxes, be paid net to the sellers applicable seller in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares To the extent any such amounts are so withheld, such amounts shall be treated for all purposes under this Agreement as having been paid to the person to whom such amounts would otherwise have been paid. Purchaser shall pay for all Shares tendered and not validly withdrawn promptly following the acceptance of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in Shares for payment pursuant to the Offer. If the payment equal to the Per Share Amount, in cash, is to be made to a person other than the person in whose name the surrendered certificate formerly evidencing Shares is registered on the stock transfer books of the Company, it shall be a condition of payment that the certificate so surrendered shall be endorsed properly or otherwise be in proper form for transfer and that the person requesting such payment shall have paid all transfer and other Taxes required by reason of the payment of the Per Share Amount to a person other than the registered holder of the certificate surrendered, or shall have established to the reasonable satisfaction of Purchaser that such Taxes either have been paid or are not applicable. (be) Purchaser may, and the Offer Documents shall reserve the right of Purchaser to, provide for a subsequent offering period (within the meaning of Rule 14d-11 promulgated under the Exchange Act) in compliance with Rule 14d-11 promulgated under the Exchange Act and all other provisions of applicable securities laws of not less than three (3) nor more than twenty (20) business days (for this purpose calculated in accordance with Rule 14d-1(g)(3) promulgated under the Exchange Act) immediately following the expiration of the Offer (as it may be extended as provided in this Agreement). Subject to the terms and conditions set forth in this Agreement and the Offer, Parent shall cause Purchaser to, and Purchaser shall, accept for payment and pay for all Shares validly tendered and not withdrawn during such subsequent offering period as promptly as practicable after any such Shares are tendered during such subsequent offering period and in any event in compliance with Rule 14e-1(c) promulgated under the Exchange Act. (f) As promptly as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain as an exhibit or incorporate by reference an offer to purchase (the “Offer to Purchase”), and forms of the related letter of transmittal and all any related summary advertisement (the Schedule TO, the Offer to Purchase and such other ancillary Offer documents (collectivelydocuments, together with all amendments, supplements and exhibits amendments thereto, being referred to herein collectively as the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of Shares. The Company shall promptly furnish or otherwise make available to Parent or Parent’s legal counsel all information concerning the Shares as and to the extent required Company that may be reasonably requested by applicable federal securities Laws and rules and regulations promulgated thereunderParent in connection with any action contemplated by this Section 2.01(f). Parent and PurchaserPurchaser shall cause the Schedule TO and the Offer Documents to comply in all material respects with the Exchange Act and all other applicable Laws. Parent and Purchaser hereby further agree that the Schedule TO and the Offer Documents, when filed with the SEC and on the one handdate first published, and sent or given to the stockholders of the Company, shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that no representation or warranty is made by Parent or Purchaser with respect to information supplied by the Company or any of its officers, directors, representatives, agents or employees in writing specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents. The Company hereby agrees that the information provided by or on behalf of the other handCompany in writing specifically for inclusion or incorporation by reference in the Schedule TO or the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, shall in light of the circumstances under which they were made, not misleading. Parent, Purchaser and the Company agree to correct promptly correct any information provided by any of them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall further agree to take all steps necessary to cause the Offer Documents Schedule TO, as so corrected corrected, to be filed with the SEC SEC, and the other Offer Documents, as so corrected, to be disseminated to holders of the Shares, in each case, case as and to the extent required by applicable federal securities Laws laws. Parent and rules and regulations promulgated thereunder. The Purchaser shall give the Company and its the Company’s counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed prior to the filing thereof with the SEC and disseminated or dissemination to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its the Company’s counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with comments and shall provide the Company and its the Company’s counsel prior with a reasonable opportunity to responding participate in the response of Parent or Purchaser to such comments. Each of Parent and Purchaser shall respond promptly to any such comments and provide of the Company SEC or its staff with copies of all such responsesrespect to the Offer Documents or the Offer. (cg) If, between the date of this Agreement and the first time at which Purchaser shall be entitled to deduct accepts for payment any Shares tendered and withhold from the consideration otherwise payable not validly withdrawn pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “CodeAcceptance Time”), the outstanding Shares are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or similar transaction, then the Per Share Amount shall be adjusted to the extent appropriate. (h) Without limiting the generality of Section 10.08, Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under any provision of state, local or foreign Tax Lawthis Agreement.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII SECTION 11.01 and none of the events or circumstances set forth in clause (iii) of Annex A ANNEX I hereto shall have occurred and be existing (and shall not have been waived by Purchaser)continuing, Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Daysthree business days, after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall, file with the SEC, to the extent required by the Exchange Act, an amended Form TO (the "FORM TO/A"), an amended Offer to Purchase (the "AMENDED OFFER TO PURCHASE") and, if necessary, the related letter of this Agreement; providedtransmittal and any related summary advertisement (the Form TO/A, howeverthe Amended Offer to Purchase and such other documents, that such ten (10together with all amendments and supplements thereto, the "OFFER DOCUMENTS") Business Day deadline to commence reflect, among other things, an increase in the per share price to be paid in the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement $30.00 and, if necessary, an extension of the Offercurrently scheduled expiration date to allow the Offer to remain open for ten business days from the date of such increase. The obligation of Purchaser Merger Co. to consummate the Offer and to accept for payment and to pay for Shares shares of Company Common Stock tendered pursuant to the Offer shall be subject only to (xi) the satisfaction of the condition that at the expiration of the Offer there shall be validly tendered in accordance with the terms of the Offer, prior to the expiration date of the Offer and not withdrawn that withdrawn, a number of Shares whichshares that, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as then owned by Parent and/or Merger Co., represents 50.1% of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Company Common Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) outstanding (the “Minimum Condition”), "MINIMUM CONDITION") and (yii) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A ANNEX I hereto. Purchaser Merger Co. expressly reserves the right to waive any of such conditions condition (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may which shall not be made waived without the prior written consent of the Company) or the condition relating to the expiration of the HSR Act and to increase the Per Share of Company Common Stock Amount. Notwithstanding the foregoing, no change may be made which (i) decreases the price per Per Share payable in the Offerof Company Common Stock Amount, (ii) changes the form of consideration payable to be paid in the Offer, (iii) increases the Maximum Amount or the Minimum Condition, (iv) reduces the maximum number of Shares shares of Company Common Stock sought to be purchased in the Offer, (v) imposes conditions to the Offer in addition to, or modifies or amends, the conditions to those set forth in Annex A ANNEX I hereto, waives (vi) except as specifically provided for in this SECTION 2.01(a), extends the Minimum Condition or makes any other changes in the terms expiration date of the Offer that are or (vii) otherwise alters or amends any term of the Offer in any manner adverse to the holders of Shares orshares of Company Common Stock; provided, except as provided belowhowever, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend that the Offer (i) beyond the initial scheduled expiration date, which shall may be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or extended for any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, period to the extent permitted required by this Agreement, waived and (ii) for any period required law or by any rule, regulation regulation, interpretation or interpretation position of the U.S. Securities and Exchange Commission (the “SEC”) SEC or the staff thereof applicable to the Offer; provided that Purchaser . Parent and Merger Co. shall not be required to extend comply with the Offer to a date later than obligations respecting prompt payment and announcement under the Outside Date. Each extension Exchange Act, and, without limiting the generality of the Offer pursuant foregoing, subject to clause (i) the terms and conditions of the preceding sentence shall this Agreement, including but not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary limited to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser Merger Co. shall (and Parent shall cause Purchaser Merger Co. to) , accept for payment and pay for all Shares validly shares of Company Common Stock tendered and not withdrawn pursuant to the Offer promptly as soon as practicable after it is permitted expiration thereof. Unless this Agreement has been terminated pursuant to do so under applicable Laws (but SECTION 11.01 and subject to SECTION 2.01(d), Merger Co. shall extend the Offer from time to time in no the event later than two (2) Business Days after such expiration date of the Offer). In addition, ifthat, at the a then-scheduled expiration date of the Offerdate, all of the conditions to the Offer have not been satisfied (or, or waived as permitted pursuant to the extent permitted by this Agreement, waived each such extension not to exceed (unless otherwise consented to in writing by Purchaserthe Company) but the lesser of 10 additional business days or such fewer number of Shares days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer to be satisfied. Except as provided in SECTION 2.01(d) or 2.01(f), Merger Co. shall not terminate the Offer without purchasing shares of Company Common Stock pursuant to the Offer. If at the expiration of the Offer a number of shares of Company Common Stock has been validly tendered and not withdrawn that, together with the shares of Company Common Stock then owned by Parent and/or Merger Co., exceeds the Maximum Amount, the number of shares of Company Common Stock to be purchased by Merger Co. pursuant to the Offer shall be prorated in accordance with Rule 14d-8 promulgated under the Exchange Act, so that the number of shares of Company Common Stock purchased by Merger Co. pursuant to the Offer, when taken together with Shares, if any, the shares of Company Common Stock then owned by Parent and its SubsidiariesMerger Co., constitutes will represent 50.1% of the shares of Company Common Stock outstanding. (b) Provided that this Agreement shall not have been terminated in accordance with SECTION 11.01 and none of the events set forth in ANNEX II hereto shall have occurred and be continuing, as promptly as practicable after the date hereof, Parent shall cause Merger Co. to, and Merger Co. shall (i) commence the Exchange Offer pursuant to which Merger Co. shall offer to issue a number of duly authorized, validly issued, fully paid and non-assessable shares of Parent Common Stock equal to the Exchange Offer Ratio (as defined below) for each then issued and outstanding share of Company Common Stock (other than shares of Company Common Stock then owned by Parent or Merger Co.), (ii) file with the SEC, to the extent required by the Exchange Act, a Form TO (the "EXCHANGE FORM TO"), an Offer to Exchange (the "OFFER TO EXCHANGE") and the related letter of transmittal and any related summary advertisement (the Exchange Form TO, the Offer to Exchange and such other documents, together with all amendments and supplements thereto, the "EXCHANGE OFFER DOCUMENTS") and (iii) file with the SEC a Registration Statement on Form S-4 (the "EXCHANGE FORM S-4") to register under the Securities Act the securities to be issued in the Exchange Offer. The obligation of Merger Co. to consummate the Exchange Offer and to issue shares of Parent Common Stock in exchange for shares of Company Common Stock tendered pursuant to the Exchange Offer shall be subject only to the conditions set forth in ANNEX II hereto. Merger Co. expressly reserves the right to waive any such condition (other than the condition that at least five business days have elapsed since the acceptance for payment and payment for a number of shares of Company Common Stock pursuant to the Offer representing, together with shares of Company Common Stock previously owned by Parent, at least 50.1% of the issued and outstanding shares of Company Common Stock and the subsequent delivery of shares of Company Common Stock not purchased in the Offer to the Depositary under the Exchange Offer, which condition shall not be waived without the prior written consent of the Company) and to increase the Exchange Offer Ratio. Notwithstanding the foregoing, no change may be made which (i) decreases, or would have the effect of decreasing, the Exchange Offer Ratio, (ii) changes the form of consideration to be paid in the Exchange Offer, (iii) reduces the number of shares of Company Common Stock sought to be purchased in the Exchange Offer, (iv) imposes conditions to the Exchange Offer in addition to those set forth in ANNEX II hereto, (v) extends the expiration date of the Exchange Offer or (vi) otherwise alters or amends any term of the Exchange Offer in any manner adverse to the holders of shares of Company Common Stock; provided, however, that the Exchange Offer may be extended (x) for any period to the extent required by law or by any rule, regulation, interpretation or position of the SEC or the staff thereof applicable to the Exchange Offer or (y) if the number of shares of Company Common Stock validly tendered in accordance with the Exchange Offer, together with shares of Company Common Stock owned by Parent as of such date, is less than 90% of the Shares then outstandingoutstanding shares of Company Common Stock, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, of the scheduled or at extended expiration date. Parent and Merger Co. shall comply with the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 obligations respecting prompt delivery of shares of Parent Common Stock and announcement under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following , and, without limiting the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give generality of the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shallforegoing, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject conditions of this Agreement, including but not limited to the conditions of the Exchange Offer. The Company agrees that no , Merger Co. shall and Parent shall cause Merger Co. to, accept for exchange and issue shares of Parent Common Stock in exchange for shares of Company Common Stock held by tendered pursuant to the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly Exchange Offer as soon as practicable on after expiration thereof. Unless this Agreement has been terminated pursuant to Section 11.01 and subject to Section 2.01(d), Merger Co. shall extend the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Exchange Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from in the SEC event that, at a then-scheduled expiration date, all of the conditions to the Exchange Offer have not been satisfied or its staff with respect waived as permitted pursuant to this Agreement, each such extension not to exceed (unless otherwise consented to in writing by the Company) the lesser of 10 additional business days or such fewer number of days that Merger Co. reasonably believes are necessary to cause the conditions to the Offer Documents promptly after to be satisfied. Except as provided in Section 2.01(d) or 2.01(f), Merger Co. shall not terminate the receipt Exchange Offer without accepting shares of such commentsCompany Common Stock and issuing shares of Parent Common Stock pursuant to the Exchange Offer. Notwithstanding anything to the contrary set forth herein, consult no certificates representing fractional shares of Parent Common Stock shall be issued in connection with the Company Exchange Offer, and its counsel prior in lieu thereof each tendering stockholder who would otherwise be entitled to responding a fractional share of Parent Common Stock in the Exchange Offer will be paid an amount in cash equal to any the product obtained by multiplying (A) the fractional share interest to which such comments and provide holder would otherwise be entitled by (B) the Company with copies of all such responsesAverage Exchange Offer Price (as defined below). (c) Purchaser shall be entitled to deduct and withhold from For purposes of this SECTION 2.01, "EXCHANGE OFFER RATIO" means the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts number of shares of Parent Common Stock determined as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.set forth below:

The Offer. (a) Provided As promptly as practicable (and in any event within seven Business Days after the date hereof; provided that this Agreement shall not have been terminated if the Company fails to satisfy its obligations under Section 1.2(b) in accordance with Article VII and none of a timely manner to allow for the events or circumstances set forth in clause (iii) of Annex A hereto Purchaser to reasonably meet such seven Business Day deadline, then Purchaser shall have occurred and be existing (and shall not have been waived by Purchasera reasonable additional period of time in which to commence the Offer as promptly as practicable after receiving the information from the Company under Section 1.2(b)), the Purchaser shall (and Parent shall cause Purchaser to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) , the Offer to purchase all of the outstanding Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement Price. The consummation of the Offer. The obligation , and the obligations of the Purchaser to accept for payment and pay for the Shares tendered pursuant to the Offer shall be subject only to to: (xi) the satisfaction of the condition that at the expiration of the Offer there be being validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the Expiration Date that number of Shares which, when taken together with the number of Shares (if any) then owned of record by Parent or any of its Subsidiariesthe Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power (other than pursuant to the Support Agreement), represents more than 50% at least a majority of the Shares then outstanding determined on a fully-fully diluted basis (on and in any event no less than a “fully-diluted basis” meaning majority of the number voting power of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as capital stock of the date hereof, by Company then outstanding on a fully diluted basis and entitled to vote upon the Company Preferred Stockholders) or similar obligations regardless adoption of the conversion or exercise price, the vesting schedule or other terms and conditions thereofthis Agreement) (collectively, the “Minimum Condition”), ; and (yii) the satisfaction (satisfaction, or waiver by Parent or the Purchaser) , of the other conditions set forth in Annex A hereto. Purchaser expressly reserves I. (b) Subject to the right to waive any satisfaction of such conditions (other than the Minimum Condition)Condition and the satisfaction, to increase or waiver by Parent or the price per Share payable in the Offer and to make any other changes in the terms Purchaser, of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the other conditions set forth in Annex A heretoI, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause the Purchaser to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after it the Purchaser is legally permitted to do so under applicable Laws Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.7. (but c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in no event later than two (2) Business Days after such expiration date accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. Parent and the Purchaser expressly reserve the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer). In addition; provided, ifhowever, at that unless otherwise contemplated by this Agreement or as previously approved by the expiration date Company in writing, the Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer except in the situation where Parent or Purchaser adds new additional consideration to the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend any of the Offerother conditions to the Offer set forth in Annex I in a manner adverse to the holders of Shares, or (vi) extend the Expiration Date in a manner other than in accordance with this Agreement. (d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days following the commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time on which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). (e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied (orsatisfied, to the extent permitted by this Agreement, or waived by Parent or the Purchaser) but , the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause the Purchaser to) (A) give extend the required notice Offer on one or more occasions for successive periods of up to 20 Business Days each, the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such subsequent offering period conditions until the satisfaction, or, where permitted by applicable Law and this Agreement, waiver by Parent or the Purchaser of such conditions; provided, however, that the Purchaser shall not be required to extend the Offer if any condition to the Offer has not been satisfied on or prior to the date that is ninety days beyond the date hereof (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” Outside Date”); provided, however, that if as of the Outside Date either the HSR Condition or the CFIUS Condition shall not have been satisfied or any of the Other Required Governmental Approvals shall not have been obtained or any waiting period (or extension thereof) shall not have lapsed, then the Outside Date shall be extended for ninety days (the extended period being the “Outside Date”). Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Purchaser to terminate this Agreement pursuant to Article 7 hereof. In addition, the Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and immediately accept Exchange Commission (the “SEC”) or its staff. (f) Notwithstanding the foregoing, only if necessary to obtain sufficient Shares (after taking into account and promptly pay including Shares issuable upon the exercise of the Top-Up Option) to reach the Short Form Threshold, the Purchaser shall (and Parent shall cause the Purchaser to) provide for all Shares tendered during any a “subsequent offering period,” in each case (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange ActAct of up to 10 Business Days, the length of the initial “subsequent offering period” and each extension thereof to be determined by the Purchaser in its sole discretion. On Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment, and pay for, all Shares that are validly tendered pursuant to the Offer during such “subsequent offering period”. The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f). (g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the date that Purchaser becomes obligated to pay for purchase of Shares pursuant to in the Offer, Parent the Purchaser shall provide or promptly return, and shall cause any depositary acting on behalf of the Purchaser to be provided to Purchaser the funds necessary to pay for return, in accordance with applicable Law, all tendered Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offerregistered holders thereof. (bh) As promptly soon as practicable on the date of the commencement of the Offer, Parent and the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer). The Schedule TO shall contain or incorporate by reference an offer include, as exhibits, the Offer to purchase and forms Purchase, a form of the related letter of transmittal and all other ancillary Offer documents a form of summary advertisement (collectively, together with all amendments, any amendments and supplements and exhibits thereto, the “Offer Documents”). Parent and the Purchaser shall agree to cause the Offer Documents to be disseminated to the holders of the Shares Shares, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderthe Exchange Act. Parent and the Purchaser, on the one hand, and the Company, on the other hand, shall agree to promptly correct any information provided by them it for use in the Offer Documents Documents, if and to the extent that it shall be or shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and the Purchaser shall agree to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of the Shares, in each case, case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents before they are filed with the SEC SEC, and disseminated Parent and the Purchaser shall give due consideration to holders of Sharesthe reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent or Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt of such comments, consult with and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsescounsel. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex Exhibit A hereto shall have occurred and be existing continuing, as promptly as practicable (but in any event not later than five business days after the public announcement of the execution and shall not have been waived by Purchaserdelivery of this Agreement), Purchaser Sub shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) the Offer ), an offer to purchase (the "Offer") all outstanding shares of the Shares Company Common Stock at a price of $12.00 per share, net to the seller in cash (the "Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the OfferConsideration"). The obligation of Purchaser Parent and Sub to commence the Offer, consummate the Offer, accept for payment and to pay for Shares shares of Company Common Stock validly tendered pursuant to in the Offer and not withdrawn shall be subject only to those conditions set forth in Exhibit A hereto. (xb) Parent and Sub expressly reserve the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with right to amend or modify the terms of the Offer, except that, without the prior written consent of the Company, Sub shall not (and Parent shall not cause Sub to) (i) decrease the Offer Consideration or the form of consideration therefor or decrease the number of Shares sought pursuant to the Offer, (ii) change, in any material respect, the conditions to the Offer, (iii) impose additional material conditions to the Offer, (iv) waive the condition that there shall be validly tendered and not withdrawn that prior to the time the Offer expires a number of Shares which, when taken together with Shares (if any) then owned by Parent or any shares of its Subsidiaries, represents more than 50Company Common Stock which constitutes at least 65% of the Shares then outstanding determined on a fully-diluted basis on the date of purchase ("on a “fully-fully- diluted basis” meaning " having the following meaning, as of any date: the number of Shares then issued and outstanding plus all shares of Company Common Stock outstanding, together with Shares which the Company may be required to issue as of such date pursuant to options, warrantswarrants or other obligations outstanding at that date), convertible securities (other v) extend the expiration date of the Offer (except that Sub may extend the expiration date of the Offer (a) as required by law or (b) for such periods as Sub may reasonably deem necessary (but not to a date later than the 45th calendar day after the date of commencement) in the event that any condition to the Offer is not satisfied), or (vi) amend any term of the Offer in any manner materially adverse to holders of shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the OfferCommon Stock; provided, however, that no change that, except as set forth above, Sub may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions waive any other condition to the Offer in addition toits sole discretion; and provided further, or modifies or amends, that the conditions set forth Offer may be extended in Annex A hereto, waives the Minimum Condition or makes any other changes connection with an increase in the terms consideration to be paid pursuant to the Offer so as to comply with applicable rules and regulations of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. United States Securities and Exchange Commission (the “"SEC”) "). Assuming the prior satisfaction or waiver of the staff thereof applicable conditions to the Offer; provided that Purchaser , Sub shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company accept for payment, and Purchaser may agree pay for, in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to accordance with the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer promptly as soon as practicable after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offerthereof. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement If a Purchase Election is made, Raleigh shall commence the Offer not have been terminated later than the twentieth business day after the date on which Raleigh makes a Purchase Election pursuant to the Response Notice. Notwithstanding anything to the contrary herein, the Offer shall comply in accordance all material respects with Article VII the requirements of Sections 14(d) and none of the events or circumstances set forth in clause (iii14(e) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “"Securities Exchange Act”")) , all other applicable laws and with the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date terms of this Agreement. The closing of the purchase and sale of the Interests tendered pursuant to the Offer (the "Offer Closing"), may be conditioned on only the following: (i) since the making of the Purchase Election, no preliminary or permanent injunction or other order of any federal or state court, government or governmental authority or agency shall have been issued and shall remain in effect which (A) makes illegal, delays or otherwise directly or indirectly restrains or prohibits the making of the Offer or the acceptance for payment, purchase of or payment for any Interests by Raleigh, or the purchase and sale of the GP Assets in the manner contemplated hereby, (B) imposes or confirms limitations on the ability of Raleigh effectively to exercise full rights of ownership of any Interests or the GP Assets or to exercise its powers as general partner of the Partnership subsequent to the GP Assets Closing, including, without limitation, the right to vote Interests on all matters properly presented to the Partnership's Interestholders, (C) requires divestiture by Raleigh of a material amount of Interests; or (D) would materially adversely affect the business, properties, assets, liabilities, financial condition, operations or results of operation of the Partnership taken as a whole or provides that the Partnership would dissolve upon consummation of the transfer of the GP Assets in the manner contemplated hereby; (A) since the making of the Purchase Election, there shall not be any action taken by, or any statute, rule, regulation or order enacted, promulgated or issued by, any federal or state court, government or governmental authority or agency, which would, directly or indirectly, result in any of the consequences referred to in clauses (A) through (D) of paragraph (i) above and (B) if Raleigh is advised by its counsel that a filing under HSR (as defined in Section 10(b)) is required, the applicable waiting period shall have expired or been terminated; (iii) since the making of the Purchase Election (A) no change or development shall have occurred and remain in effect in the business, properties, assets, liabilities, financial condition, operations, or results of operations of the Partnership which is or would reasonably be expected to be materially adverse to the Partnership taken as a whole, (B) no material breach by the General Partner of its obligations under Sections 4(b), 4(c), 4(d) or 8(b) of this Agreement shall have occurred and remain in effect, and (C) there shall have been no taking of action constituting, or authorization or proposal by the General Partner of, an Organic Change pursuant to the "proviso" clause of clause (E) of Section 8(b); (iv) since the making of the Purchase Election, there shall not have occurred and remain in effect (A) any general suspension of trading in, or limitation on prices for, securities on any national securities exchange or in the over-the counter market in the United States, (B) a declaration of a banking moratorium or any suspension of payments in respect of banks in the United States, (C) any limitation by any governmental authority on the extension of credit by lending institutions, or any imposition by any governmental authority of currency controls, in the United States or (D) in the case of any of the foregoing existing at the time of the making of the Purchase Election, a material acceleration or worsening thereof; (v) the occurrence, contemporaneously with the Offer Closing, of the GP Assets Closing, provided that Raleigh has satisfied all of its obligations with respect to the purchase of the GP Assets; and (vi) the execution and delivery by the General Partner and JMB Realty Corporation ("JMB") of the Indemnification and Release Agreement and the execution and delivery by the JMB Principals (as hereinafter defined) of the letter annexed to the Indemnification and Release Agreement as Exhibit B, in each case pursuant to Section 14 hereof. Raleigh shall keep the Offer open for no more than 40 business days and no less than 30 business days and shall promptly purchase for cash any and all Interests validly tendered (and not withdrawn) prior to the expiration of the Offer (the date on which the Offer expires in accordance with this sentence, as the same may be extended in accordance with the proviso set forth below, the "Final Expiration Date"); provided, however, that Raleigh may extend the Final Expiration Date under the following circumstances: (A) if there is in effect, on such ten date, any preliminary or permanent injunction or other order of any federal or state court, government or governmental authority or agency of the type described in Section 4(a)(i) (10) Business Day deadline to commence an "Offer Injunction"), the Offer will Final Expiration Date may be extended to such the earliest practicable date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to which the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered may expire in accordance with the terms Securities Exchange Act following the earlier to occur of (1) the vacation or dissolution of such Offer Injunction and the dissemination to Interestholders of additional offering materials containing any necessary disclosure relating thereto or (2) the last day of the Offer and not withdrawn that number of Shares which, when taken together with Shares Cooperation Period; (if anyB) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined Final Expiration Date may be extended to the earliest practicable date on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company Offer may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement expire in accordance with Section 7.1, Purchaser may, and at the request Securities Exchange Act following the dissemination to Interestholders of additional offering materials prepared for the purpose of complying with comments by the staff of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”"Commission"), provided that Raleigh shall use commercially reasonable efforts to comply with such comments as promptly as practicable; (C) or in the staff thereof applicable event that a competing offer for Interests is commenced by a third party bidder who is not affiliated with Raleigh (a "Competing Offer"), the Final Expiration Date may be extended to the Offer; earliest practicable date on which the Offer may expire in accordance with the Securities Exchange Act following an increase in the Offer price to a price equal to or higher than the price offered by the competing bidder and the dissemination to Interestholders of amended offering materials disclosing such increase, provided that Purchaser shall not the Offer is extended for the purpose of making such increase prior to the occurrence of the Final Expiration Date theretofore in effect; and (D) in the event that Raleigh is advised by its counsel that a filing under HSR will be required in order to extend consummate the Offer to a date later than GP Assets Closing, the Outside Date. Each extension Final Expiration Date of the Offer pursuant may be extended to clause (i) the earliest practicable date on which the Offer may expire in accordance with the Securities Exchange Act following the making of such filing and any required filing by the preceding sentence General Partner, the expiration or termination of any applicable waiting period and the dissemination to Interestholders of additional offering materials containing any necessary disclosure relating thereto. Raleigh shall not exceed ten (10) Business Days (or such longer period as make a filing under HSR in connection with the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions consummation of the Offer Closing and the GP Assets Closing, the GP Assets Call Exercise or the closing of a Permitted Transaction, if such filing is required under HSR. Raleigh shall make all decisions regarding the conduct of the Offer and the acquisition and transfer of Interests pursuant thereto, except that Raleigh shall not amend or otherwise modify the terms of the Offer or conduct the Offer or acquire or transfer Interests in a manner that violates or is inconsistent with its obligations under this Agreement, including without limitation, Raleigh shall not condition its Offer on the satisfaction of any conditions other than those provided for in this Agreement. At the Offer Closing, Raleigh shall, unless one or more of the conditions set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction Section 4(a) hereof has not been satisfied or earlier waiver of waived by Raleigh, purchase all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares Interests validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for Final Expiration Date (and not withdrawn) pursuant to the Offer. The Offer Price shall, subject Raleigh shall retain at its sole expense a firm (the "Information Agent") to any required withholding of Taxes, be net solicit tenders from Interestholders and to provide Interestholders with information about the sellers in cash, upon the terms and subject opportunity to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered tender Interests in the Offer. (b) As promptly as practicable on If Raleigh makes the date of commencement of Offer at or above the Offer, Parent and Purchaser shall file Buy/Sell Price in a timely manner in accordance with the SEC terms hereof in all material respects and unless another tender offer or change of control transaction is proposed at a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits theretohigher price, the “Schedule TO”General Partner (i) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause will recommend the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one handInterestholders who need or want liquidity, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff (ii) will remain neutral with respect to the Offer Documents promptly after for all other Interestholders. The General Partner may change any recommendation it has made to Interestholders with respect to the receipt Offer to reflect such other tender offer or change of control transaction at a higher price (but no such proposal of a higher priced tender offer or change of control transaction or change by the General Partner of its recommendation with respect to the Offer shall release the General Partner from its obligation to consummate the sale of the GP Assets to Raleigh in accordance with the terms and conditions hereof). The General Partner shall, and shall cause the Partnership and its transfer agent (consistent with its standard practices and procedures) to cooperate with Raleigh in promulgating the Offer in the manner hereinafter set forth in this Section 4(b). Within 5 business days following the date on which Raleigh makes a Purchase Election pursuant to the Response Notice, the General Partner will cause the Partnership, at Raleigh's cost and expense not to exceed $1,000, to furnish Raleigh with a list, as of the most recent practicable date and in computer readable form, of the names, addresses and numbers of Interests held by Interestholders of the Partnership (the "List"), together with such computer processing data as is reasonably necessary to make use of such commentscomputer readable List and a printout of the List for verification purposes. The General Partner will not, consult and will not cause or permit its affiliates to, take any action that in its judgment would reasonably be expected to result in the conditions to the Offer set forth in Section 4(a) (other than the condition in Section 4(a)(iii)(C)) above not to be satisfied. In addition, the General Partner (i) will comply, and cause the Partnership to comply, in all material respects with the Company Securities Exchange Act in connection with the Offer, and (ii) subject to satisfaction in all material respects of the conditions and requirements for transfer of Interests generally imposed or required by the Partnership and its counsel prior to responding to any such comments transfer agent, including delivery of duly completed forms of assignment and provide the Company with copies payment of all such responsesapplicable transfer fees, will, if the GP Assets Closing (as hereinafter defined) has not yet occurred, recognize the transfer to Raleigh of Interests acquired in the Offer and, if requested by Raleigh, will admit Raleigh as a limited partner with respect to all Raleigh Interests and all Interests acquired by Raleigh in the Offer and as to which the transfer to Raleigh has been recognized. The General Partner shall make a filing under HSR in connection with the consummation of the Offer Closing and the GP Assets Closing, the GP Assets Call Exercise or the closing of a Permitted Transaction if required under HSR. (c) Purchaser shall be entitled Other than as provided in this Agreement, the General Partner will not, and will cause its affiliates not to, directly or indirectly, purchase or otherwise acquire beneficial ownership of Interests, enter into any agreement with a third party for the General Partner or any of its affiliates to deduct purchase or otherwise acquire beneficial ownership of any Interests, or make any offer to purchase or otherwise acquire beneficial ownership of Interests (other than the Raleigh Interests and withhold from any Resolved Interests), at any time commencing on the consideration otherwise payable pursuant date hereof through and including the earliest to occur of (i) the Raleigh Interests Closing, (ii) the Final Expiration Date, (iii) an Offer Default (as hereinafter defined), or in (iv) the termination of this Agreement. (d) In connection with any subsequent offering period) any such amounts as are required to be deducted and withheld the Offer, Raleigh with respect to the making Raleigh Interests will consent to, and with respect to all Interests tendered in the Offer will obtain the consent of the tendering Interestholders to, waive and amend Section 7.1 of the Partnership Agreement of the Partnership so as to permit the transfer and/or assignment to Raleigh of all Interests tendered in the Offer, notwithstanding that such payment transfer and/or assignment may or would result in the termination of the Partnership under the applicable provisions of the Internal Revenue Code of 1986, as amended amended. Subject to Raleigh complying in all material respects with the requirements of Section 4 in the conduct of the Offer, the General Partner will cooperate with Raleigh in giving effect to, and will consent to, any such waiver and amendment of the Partnership Agreement; provided, however, nothing herein shall be deemed to require the General Partner to recommend in favor of any such waiver and amendment or to assist or participate in the solicitation of consents with respect thereto. (e) Anything herein to the “Code”contrary notwithstanding, if a Competing Offer is commenced for any and all Interests at a price in excess of the Offer price, Raleigh may elect, in its sole discretion, at any time such Competing Offer remains outstanding to sell all, but not less than all, of the Raleigh Interests (and any Resolved Interests) to the competing bidder pursuant to the Competing Offer. If the Raleigh Interests are sold pursuant to such Competing Offer, Raleigh shall be released from its obligation to consummate the Offer and Raleigh and the General Partner shall each be released from their respective obligations to consummate the purchase and sale of the GP Assets. (f) Anything herein to the contrary notwithstanding, if Raleigh makes a Purchase Election, it shall be released from its obligations to commence the Offer pursuant to Section 4(a) hereof if one or more of the conditions set forth in Section 4(a)(i), (ii), (iii) or under (iv) has not been satisfied as of the date by which Raleigh would otherwise be required to commence the Offer. In the event that Raleigh commences the Offer notwithstanding the failure of any provision such condition to be satisfied as of statethe commencement date of the Offer, local its commencement of the Offer will not constitute a waiver of its right to assert the failure of such condition, or foreign Tax Lawany other condition set forth in Section 4(a), to be satisfied as the basis for a decision to terminate the Offer without purchasing any Interests tendered pursuant thereto. (g) If Raleigh makes a Purchase Election, Raleigh and the Purchaser shall execute and deliver to each other the Purchaser Release Agreement.

The Offer. (a) Provided that (i) this Agreement shall not have been terminated in accordance with Article VIII hereof, (ii) nothing shall have occurred that would render any of the conditions set forth in Section 1 of Annex B incapable of being satisfied and (iii) none of the conditions set forth in Section 2 of Annex B hereto shall have occurred and be continuing, Parent shall cause Purchaser (and the Company shall cooperate with Parent and Purchaser subject to Section 6.02(e)) to commence (within the meaning of Rule 14d-2 of the Exchange Act), as promptly as reasonably practicable after the date of this Agreement but in no event more than ten (10) Business Days thereafter, an offer to purchase all outstanding shares of Company Common Stock (including the associated rights to purchase shares of capital stock of the Company (“Rights”) issued pursuant to that certain Shareholder Rights Plan dated as of December 23, 2006, by and between the Company and Wxxxx Fargo Bank, National Association, as Rights Agent (the “Rights Plan”)) (each such share of Company Common Stock, together with the associated Rights, a “Share” and collectively, “Shares”) at a price of $19.50 per Share, net to the sellers in cash (such amount, or any greater amount per Share paid pursuant to the Offer, the “Offer Price”). Promptly after the later of: (i) the earliest date as of which Parent is permitted under applicable Law to accept for payment Shares tendered pursuant to the Offer and (ii) the earliest date as of which each of the Tender Offer Conditions shall have been satisfied or waived (and in any event in compliance with Rule 14e-1(c)), Purchaser shall, and Parent shall cause it to, accept for payment, and pay for (after giving effect to any required withholding Tax), all Shares validly tendered pursuant to the Offer and not withdrawn (the time and date of acceptance for payment, the “Acceptance Date”). (b) Purchaser expressly reserves the right, in its sole discretion, to waive, in whole or in part, any Tender Offer Condition or modify the terms of the Offer; provided, however, that without the prior written consent of the Company, Purchaser shall not (i) decrease the Offer Price, (ii) decrease the number of Shares sought to be purchased in the Offer, (iii) change the form of consideration payable in the Offer (other than by increasing the Offer Price, in the sole discretion of Purchaser), (iv) add to the Tender Offer Conditions, (v) waive or amend the Minimum Condition (as defined in Annex B), (vi) extend or otherwise change the expiration date of the Offer, other than in accordance with Section 1.01(c) or (vii) make any other change in the terms or conditions of the Offer which is or would reasonably be expected to be materially adverse to any holder of Shares, it being agreed that a waiver by Purchaser of any of the conditions set forth in Annex B (other than the Minimum Condition) in whole or in part at any time and from time to time in its discretion shall not be deemed to be materially adverse to any holder of Shares. (c) The initial expiration date of the Offer (the “Expiration Date”) shall be the 20th Business Day following the commencement of the Offer (determined using Rule 14d-2 under the Exchange Act). Without the prior written consent of the Company, Purchaser may extend the Expiration Date (which extended date shall thereupon be the Expiration Date for purposes of this Agreement) in increments of not more than ten (10) Business Days each, if at the scheduled Expiration Date any of the conditions to Purchaser’s obligation to purchase Shares are not satisfied, until such time as such conditions are satisfied or waived, provided that the Expiration Date shall not be later than the Outside Date as a result of such extension. Without limiting the right of Purchaser to extend the Offer, provided that this Agreement shall not have been terminated in accordance with Article VII and none VIII hereof, (1) Purchaser shall extend the Expiration Date for any period required by any rule, regulation, interpretation or position of the events SEC or circumstances the staff thereof applicable to the Offer and (2) Purchaser shall extend the Expiration Date if the conditions set forth in clause clauses (ii) and (iii) of Section 1 of Annex A hereto B are not satisfied as of any scheduled Expiration Date, until such time as the conditions set forth in clauses (ii) and (iii) of Section 1 of Annex B are satisfied, provided that the Expiration Date shall have occurred and not be existing (and later than the Outside Date as a result of such extension. Further, provided that this Agreement shall not have been waived by Purchaser)terminated in accordance with Article VIII hereof, if any of the conditions set forth in Annex B (other than the conditions set forth in clauses (ii) and (iii) of Section 1 of Annex B) are not satisfied as of any scheduled Expiration Date, then, except to the extent that such conditions are incapable of being satisfied, at the request of the Company, Purchaser shall extend the Expiration Date for a period requested by the Company of not more than ten (and Parent 10) Business Days in order to permit the satisfaction of such conditions to the Offer; provided, however, that Purchaser shall cause not be required to so extend the Expiration Date pursuant to this sentence on more than two occasions or if the failure to meet any of such conditions set forth in Annex B was caused by or resulted from the failure of the Company to perform in any material respect any covenant or agreement of the Company contained herein, or the material breach by the Company of any representation or warranty contained herein. In addition, Purchaser to) commence shall have the right, without the consent of the Company, to make available a subsequent offering period (within the meaning of Rule 14d-2 14d-11 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicableif, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as then-applicable Expiration Date, the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant conditions to the Offer set forth in Annex B have been satisfied or waived but there shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly not have been tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares which would equal at least ninety percent (if any90%) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares issued and then outstanding determined on a fully-diluted basis (Shares on a “fully-fully diluted basis” meaning the number (which assumes conversion or exercise of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible derivative securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (shall, and Parent shall cause Purchaser it to) , accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer during such subsequent offering period promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after any such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly are tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of during such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during in any “subsequent offering period,” event in each case in accordance compliance with Rule 14d-11 and Rule 14e-1(c) promulgated under the Exchange Act. On or The Offer may be terminated prior to its Expiration Date (as such expiration date may be extended and re-extended in accordance with this Agreement), but only if this Agreement is validly terminated in accordance with Section 8.01. In no event shall Purchaser extend the date that Purchaser becomes obligated to pay for Shares pursuant to Offer beyond the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the OfferOutside Date. (bd) As promptly as practicable on On the date of commencement of the Offer, Parent and Purchaser shall (i) file or cause to be filed with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, amendments and supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO Offer which shall contain or incorporate by reference an the offer to purchase and forms of the related letter of transmittal and all summary advertisement and other ancillary documents and instruments required thereby pursuant to which the Offer documents will be made (collectively, together collectively with all amendments, any supplements and exhibits or amendments thereto, the “Offer Documents”). Parent and Purchaser shall ; (ii) cause the Offer Documents to be disseminated to holders of Shares as required by applicable Law; and (iii) timely file with the Commissioner of Commerce of the State of Minnesota any registration statement relating to the Offer required to be filed pursuant to Chapter 80B of the Minnesota Statutes and shall disseminate to the holders of Company Common Stock via the Shares as and Offer Documents the information set forth in any such registration statement to the extent and within the time period required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders Chapter 80B of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderMinnesota Statutes. The Company and its counsel shall be given a reasonable opportunity to review and comment upon on the Offer Documents before prior to their filing with the SEC and Parent and Purchaser shall give reasonable and good faith consideration to any comments made by the Company and its counsel. (e) Parent and Purchaser shall cause the Offer Documents and any amendments or supplements thereto to (i) comply in all material respects with the Exchange Act, and (ii) not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, except that no covenant is made by Parent with respect to information supplied by the Company specifically for inclusion in the Offer Documents. Parent and Purchaser shall cause the information supplied by Parent and its affiliates specifically for inclusion in the Schedule 14D-9, the Information Statement or the Proxy Statement, at the respective times the Schedule 14D-9, the Information Statement or the Proxy Statement are filed with the SEC or, in the case of the Proxy Statement, at the time of the Special Meeting, not to contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Parent and Purchaser shall cause the Offer to be conducted in compliance in all material respects with the Exchange Act. (f) If at any time prior to the Effective Time, any information relating to the Offer, the Merger, the Company, Parent, Purchaser or any of their respective Affiliates, directors or officers, should be discovered by the Company or Purchaser which should be set forth in an amendment or supplement to the Offer Documents so that the Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, the party which discovers such information shall promptly notify the other parties, and an appropriate amendment or supplement describing such information shall be filed with the SEC and disseminated to holders the Company Shareholders, as and to the extent required by applicable Law or any applicable rule or regulation of Sharesany stock exchange. In addition, Parent and Purchaser shall agree to provide the Company and its counsel with (i) any comments or other communications, whether written or oral, that Parent or Purchaser or their counsel may receive from time to time be received from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company thereof and its counsel prior to responding thereto and (ii) a reasonable opportunity to any such provide comments on that response (to which reasonable and provide the Company with copies of all such responsesgood faith consideration shall be given). (cg) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with to any subsequent offering period) any holder of Shares such amounts as are Purchaser is required to be deducted deduct and withheld withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law. To the extent that amounts are so withheld and paid over to the appropriate Taxing authority by Purchaser, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Shares in respect of which such deduction and withholding was made by Purchaser. (h) Parent shall cause to be provided to Purchaser all of the funds necessary to purchase any Shares that Purchaser becomes obligated to purchase pursuant to the Offer, and shall cause Purchaser to perform, on a timely basis, all of Purchaser’s obligations under this Agreement.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing VIII, as promptly as practicable (and shall not have been waived by Purchaser)in any event on or before September 18, Purchaser 2015) after the date hereof, Acquisition Sub shall (and Parent shall cause Purchaser Acquisition Sub to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) , the Offer to purchase all of the Shares outstanding Common Stock at a price per share equal to the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement Price. The consummation of the Offer. The , and the obligation of Purchaser Acquisition Sub to accept for payment and pay for Shares any shares of Common Stock tendered pursuant to the Offer Offer, shall be subject only to to: (xi) the satisfaction of the condition that at the expiration of the Offer there be being validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the Expiration Date that number of Shares shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered) which, when taken together with Shares the number of shares of Common Stock (if any) then owned by Parent or any of its Subsidiariessubsidiaries, represents more than 50% a majority of the Shares shares of Common Stock then outstanding (determined on a fully-fully diluted basis as described below) (on a “fully-diluted basis” meaning collectively, the "Minimum Condition"); (ii) this Agreement not having been terminated in accordance with its terms (the "Termination Condition"); and (iii) the satisfaction, or waiver by Parent or Acquisition Sub, of the other conditions and requirements set forth in Annex I (together with the Minimum Condition and the Termination Condition, the "Offer Conditions"). For purposes of determining whether the Minimum Condition has been satisfied, the number of Shares then shares of Common Stock outstanding on a fully diluted basis shall be the number of shares of Common Stock issued and outstanding plus all the number of shares of Company Common Stock which the Company may would be required to issue as of such date pursuant to any then outstanding warrants, options, warrantsbenefit plans or obligations or securities convertible or exchangeable into shares of Common Stock or otherwise, but only to the extent so exercisable, convertible securities or exchangeable prior to consummation of the Merger or exercisable, convertible or exchangeable as a result of the consummation of the Offer or the Merger. (b) Subject to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Acquisition Sub, of the other than the Offer Conditions, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment and pay for all shares of Series D-1 Preferred Common Stock ownedvalidly tendered and not properly withdrawn pursuant to the Offer on or promptly after the applicable Expiration Date. Subject to Section 3.7, beneficially or the Offer Price payable in respect of recordeach share of Common Stock validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, as without interest. (c) The Offer shall be made by means of an offer to purchase (the "Offer to Purchase") that describes the terms and conditions of the date hereofOffer in accordance with this Agreement, including the Offer Conditions. Unless previously approved by the Company Preferred Stockholdersin writing, Parent and Acquisition Sub shall not: (i) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in decrease the Offer and to make any other changes in the terms of the Offer; providedPrice, however, that no (ii) change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces (iii) change the maximum number of Shares sought shares of Common Stock to be purchased in the Offer, imposes conditions to (iv) amend or waive the Offer in addition toMinimum Condition, the Termination Condition or modifies or amends, the conditions set forth in clauses (b) or (c)(i) of Annex A heretoI, waives (v) add any condition to the Minimum Condition Offer or makes any other changes in term that is adverse to the terms holders of Common Stock, (vi) extend the expiration of the Offer that are except as required or permitted by this Section 2.1, (vii) provide for a "subsequent offering period" (or any extension thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement Common Stock. (d) Unless extended in accordance with Section 7.1the terms of this Agreement, Purchaser may, and at the request of the Company shall, extend the Offer shall expire at 11:59 p.m. (iNew York City time) beyond on the initial scheduled expiration date, which shall be date that is twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) Business Days following the date of commencement of the Offer, or any subsequent scheduled expiration as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, ifthe "Initial Expiration Date") or if the Initial Expiration Date has been extended in accordance with this Agreement, at on the date to which the Offer has been so extended (the Initial Expiration Date, or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the "Expiration Date"). (e) If as of any then scheduled expiration of the OfferExpiration Date, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall Offer Condition has not be been satisfied or, to the extent permitted waivable by Parent or Acquisition Sub pursuant to this Agreement, waived by Parent or Acquisition Sub, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for successive periods of up to five (ii5) for any Business Days each (or such longer period required of up to twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension), the length of each such period to be determined by any rule, regulation or interpretation Parent in its sole discretion in order to permit the satisfaction of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the OfferOffer Conditions; provided provided, however, that Purchaser Acquisition Sub shall not be required to extend the Offer beyond March 3, 2016 (the "Outside Date"), unless at such time Parent would be prohibited from terminating this Agreement pursuant to a date later than Section 8.1(b), and shall not extend the Offer beyond the Outside Date without the Company's consent. In addition, Acquisition Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or the NYSE; provided, however, that Acquisition Sub shall not be required to extend the Offer beyond the Outside Date. Each extension , unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 8.1(b), and shall not extend the Offer beyond the Outside Date without the Company's consent. (f) Acquisition Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Offer Company, except if this Agreement is terminated pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfiedArticle VIII. Subject to the terms of If this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offeris terminated pursuant to Article VIII, Purchaser Acquisition Sub shall (and Parent shall cause Purchaser Acquisition Sub to) accept for payment promptly terminate the Offer and pay for all Shares validly tendered and shall not withdrawn acquire the shares of Common Stock pursuant thereto. If the Offer is terminated by Acquisition Sub, or this Agreement is terminated prior to the Offer Acceptance Time, Acquisition Sub shall promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In additionreturn, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice any depositary acting on behalf of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case Acquisition Sub to return, in accordance with Rule 14d-11 under applicable Law, all tendered shares of Common Stock that have not then been purchased in the Exchange Act. On or prior Offer to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offerregistered holders thereof. (bg) As promptly soon as practicable on the date of the commencement of the Offer, Parent and Purchaser shall Acquisition Sub shall: (i) file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “"Schedule TO”"); (ii) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms deliver a copy of the related letter of transmittal and Schedule TO, including all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, to the “Offer Documents”). Parent Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act; (iii) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and Purchaser shall mail by means of first class mail a copy of the Schedule TO, to the NYSE in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and (iv) cause the Offer Documents to be disseminated to the all holders of the Shares shares of Common Stock as and to the extent required by all applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and PurchaserLaws, on including the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsesExchange Act. (ch) Purchaser The Schedule TO shall include as exhibits, the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, and a form of notice of guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection made, together with any subsequent offering period) any such amounts amendments and supplements thereto, being referred to herein as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law."Offer

The Offer. (a) Provided that this Agreement nothing shall not have been terminated occurred that would result in accordance with Article VII and none a failure to satisfy any of the events or circumstances conditions set forth in clause (iii) of Annex A hereto shall have occurred EXHIBIT C hereto, as promptly as practicable after the date hereof, Merger Sub shall, and be existing (and shall not have been waived by Purchaser), Purchaser shall (and Parent IR shall cause Purchaser Merger Sub to) , commence (within the meaning of Rule 14d-2 under of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepromptly, but in no event later than ten (10) Business Days, the tenth business day after the date of this Agreement; provided, howeveran offer (the "Offer") to purchase any and all of the outstanding shares of ZT Common Stock at a price of fifteen dollars and thirty-six cents ($15.36) per share (the "Offer Price"), that such ten (10) Business Day deadline net to commence the seller in cash. The initial expiration date of the Offer will shall be extended to such the twentieth business day from and after the date the Offer is commenced, including the date of commencement as the Company is ready to file first business day in accordance with Rule 14d-2 under the Schedule 14D-9 on Exchange Act (the same date as the commencement of the Offer"Initial Expiration Date"). The obligation of Purchaser Merger Sub to accept for payment payment, purchase and pay for Shares tendered pursuant to the Offer shares of ZT Common Stock shall be subject subject, except as provided in Section 1.1(b), only to (x) the satisfaction of the condition that at the expiration a number of shares of ZT Common Stock representing not less than two-thirds of the Offer there be validly tendered in accordance with the terms total issued and outstanding shares of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined ZT Common Stock on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all date such shares of Company Common Stock which the Company may be required to issue as of such date are purchased pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as Offer have been validly tendered and not withdrawn prior to the expiration of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) Offer (the “"Minimum Condition”), ") and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A EXHIBIT C hereto. Purchaser ; provided, however, that Merger Sub expressly reserves the right to waive any of such the conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes change in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shallsole discretion, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the OfferSection 1.1(b). (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII and none Section 8.01 hereof, as promptly as practicable (but in any event within five business days of the events or circumstances set forth in clause (iii) date of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaserthis Agreement), the Purchaser shall (and Parent shall cause Purchaser to) the Sub to commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “"Exchange Act”")) the Offer an offer to purchase all outstanding shares of Common Stock (including scrip) and Preferred Stock not owned by the Purchaser or the Sub at a price of $0.60 per share of Common Stock (including scrip), net to the seller in cash and $2.50 per share of Preferred Stock, net to the seller in cash, which offer shall remain open for at least 20 business days (the "Offer") and, subject to the conditions of the Shares at Offer set forth in Exhibit A hereto, shall use its best efforts to consummate the Offer Price as promptly as reasonably practicableOffer, but in no event later than ten (10) Business Daysincluding, after if necessary, conversion of convertible loans including a $3,500,000 credit facility and options outstanding into Common Stock or Preferred Stock of the date of this Agreement; providedCompany, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready case may be, in order to file the Schedule 14D-9 on the same date as the commencement of consummate the Offer. The obligation obligations of the Purchaser and the Sub to consummate the Offer, to accept for payment and to pay for any shares of Common Stock and Preferred Stock tendered shall be subject only to those conditions set forth in Exhibit A hereto. (b) Neither the Purchaser nor the Sub will, without the prior written consent of the Board of Directors of the Company, decrease the amount or change the form of the consideration payable in the Offer, decrease the number of shares of Common Stock or Preferred Stock sought pursuant to the Offer, change the conditions to the Offer, impose additional conditions or terms to the Offer, amend or waive the condition that there be validly tendered and not properly withdrawn prior to the expiration of the Offer a number of shares of Common Stock and Preferred Stock which when added to the number of shares of Common Stock and Preferred Stock owned by the Purchaser and its affiliates constitutes at least two-thirds of the then outstanding shares of Common Stock and two- thirds of the then outstanding shares of Preferred Stock, respectively, on a fully diluted basis, or amend any term of the Offer in any manner adverse to holders of shares of Common Stock or Preferred Stock. Assuming the prior satisfaction or waiver of the conditions to the Offer, the Purchaser covenants and agrees to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered for, in accordance with the terms of the Offer, shares of Common Stock and Preferred Stock tendered pursuant to the Offer as soon as it is permitted to do so under applicable Law, provided that the Purchaser and not withdrawn that number of Shares whichthe Sub shall have the right, when taken together upon consultation with Shares the Company, to extend the Offer (if anywithout such extension the Purchaser would be unable to consummate the Offer) then owned by Parent or any of its Subsidiaries, represents more to a date not later than 50% the 35th business day following the commencement of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company Offer or for such longer period as may be required by Law. (c) Notwithstanding anything to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise pricecontrary in this Agreement, the vesting schedule or other Purchaser and the Sub further agree that, subject to the terms and conditions thereof) (of this Agreement, in the “Minimum Condition”), and (y) event that the satisfaction (or waiver by Purchaser) of conditions to the other conditions Offer set forth in Annex paragraphs (a) or (b) of Exhibit A hereto. Purchaser expressly reserves hereto shall occur or exist (and shall not have been waived), the right Sub shall, at the Company's request, extend the Offer to waive any of such conditions (other a date not later than the Minimum Condition), to increase 40th business day following the price per Share payable in the Offer and to make any other changes in the terms commencement of the Offer; provided, however, that no change may be made without if the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions condition set forth in Annex paragraph (d)(i) of Exhibit A heretoshall not have been satisfied, waives the Minimum Condition or makes any other changes in Purchaser and the terms of Sub shall, if reasonably requested by the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shallCompany, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) for five business days to enable the Company to cure such breach. (d) As soon as defined in Rule 14d-1 under the Exchange Act) following practicable on or before the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at but not later than five business days after the scheduled expiration execution of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived the Purchaser and (ii) for any period required by any rule, regulation or interpretation of the U.S. Sub shall file with the Securities and Exchange Commission (the “"SEC”") or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) 14D-1 with respect to the Offer. The Schedule TO shall Offer which will contain or incorporate by reference an the offer to purchase and forms form of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, any supplements and exhibits or amendments thereto, the “"Offer Documents”"). Parent and Purchaser shall cause the The Offer Documents to be disseminated will comply in all material respects with the provisions of applicable federal securities Laws and, on the date filed with the SEC and on the date first published, sent or given to the holders of the Shares as Common Stock and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and Preferred Stock of the Company, on shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the other handstatements therein, shall in light of the circumstances under which they were made, not misleading, except that no representation is made by the Purchaser or the Sub with respect to information supplied by the Company in writing for inclusion in the Offer Documents. The Purchaser, the Sub and the Company each agrees promptly to correct any information provided by them it for use in the Offer Documents if and to the extent that it shall be discovered to have been or shall to have become false or misleading in any material respect, respect and Parent the Purchaser and Purchaser shall the Sub each further agrees to take all steps necessary to cause the Offer Documents as so corrected to be filed with the SEC and disseminated to the holders of the SharesCommon Stock and Preferred Stock of the Company, in each case, case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderLaws. The Company Purchaser and its counsel shall be given a reasonable opportunity the Sub agree to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel in writing with any comments that Parent or Purchaser the Purchaser, the Sub or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII Section 8.01 and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and or be existing (and shall not have been waived by Purchaser)existing, Purchaser shall (agrees to, and Parent shall agrees to cause Purchaser to) , commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly as reasonably practicablepracticable after the date hereof, but in no event later than ten (10) Business Days, five business days after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement first public announcement of the Offerexecution hereof. The Parent and Purchaser agree that the obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to the condition (xthe "Minimum Condition") that the satisfaction number of Shares validly tendered and not withdrawn prior to the expiration of the condition that Offer, combined with the Shares already owned by Parent, Purchaser or any of their affiliates, constitute more than 80% of the then outstanding Shares at the expiration of the Offer there and also shall be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required subject to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. A. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition)condition, to increase the price per Share payable in the Offer Offer, and to make any other changes in the terms and conditions of the Offer; provided, however, that Parent and Purchaser agree that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, which changes the form of consideration payable to be paid in the Offer, which reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, which extends the expiration date of the Offer. Notwithstanding Offer (except that Purchaser may extend the foregoing, subject to the right expiration date of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (ia) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions required to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by comply with any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “"SEC”") or (b) for one or more times each for an aggregate period of up to 15 days (and not to exceed 60 days from the staff thereof applicable date of commencement) for any reason other than those specified in the immediately preceding clause (a)) or which imposes conditions to the Offer; provided that Purchaser shall not be required Offer in addition to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer those set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offerhereto. The Offer Price Per Share Amount shall, subject to any required applicable withholding of Taxestaxes, be net to the sellers seller in cash, upon the terms and subject to the conditions of the Offer. The Company Subject to the terms and conditions of the Offer (including, without limitation, the Minimum Condition), Purchaser agrees that no shares to, and Parent agrees to cause Purchaser to, pay, as promptly as practicable after expiration of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer, for all Shares validly tendered and not withdrawn. (b) As promptly soon as reasonably practicable on the date of commencement of the Offer, Parent and Purchaser shall agree that Purchaser will file with the SEC a Tender Offer Statement on Schedule TO 14D-1 (together with all amendments, amendments and supplements and exhibits thereto, the “"Schedule TO”14D-1") with respect to the OfferOffer and the other Transactions (as hereinafter defined), which shall have been provided to the Company and to which the Company shall not have reasonably objected. The Parent and Purchaser agree that the Schedule TO shall 14D-1 will contain or will incorporate by reference an offer to purchase (the "Offer to Purchase") and forms of the related letter of transmittal and all other ancillary Offer documents any related summary advertisement (collectively, together with all amendments, supplements and exhibits theretothe Schedule 14D-1, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.Purchase

The Offer. (a) Provided Barrick shall promptly publicly announce its intention to amend the Original Offer, subject to the terms and conditions set forth below, to increase the consideration payable thereunder to, at the election of a Shareholder, $22.50 in cash or 0.8269 of a Barrick Common Share plus $0.05 in cash, in each case subject to pro ration as described in the Original Offer, provided that this Agreement the maximum cash consideration will be $1,343,618,621 and the maximum share consideration will be 333,180,480 Barrick Common Shares (in each case calculated on a fully diluted basis). Barrick will continue to offer the "Rollover Option", as defined and described in the Original Offer. The conditions of the Original Offer will be replaced by the conditions set out in Schedule A. The Notice of Variation shall also contain an amendment to Section 13(e) of the Offer portion of the Circular to replace the phrase "in its sole discretion" with the phrase "in its reasonable discretion". Barrick will not have been terminated be required to make the Offer in any jurisdiction where it would be illegal to do so. (b) Barrick shall mail the Notice of Variation in accordance with Article VII the Securities Act (Ontario) and none regulations thereunder and all other applicable securities laws, including the applicable securities laws of the events or circumstances set forth in clause United States, (iiicollectively, "Applicable Securities Laws") to each registered holder of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, Shares as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) the Offer to purchase all of the Shares at the Offer Price as promptly soon as reasonably practicablepracticable and, but in no event any event, not later than ten 11:59 p.m. (10Toronto time) Business Dayson January 5, after 2006 (such time on such date being referred to herein as the date of this Agreement"Latest Mailing Time"); provided, however, that if the mailing of the Notice of Variation is delayed by reason of Placer Dome not having provided to Barrick the Directors' Circular referred to in Section 2.1(h)(vi) as well as any information pertaining to Placer Dome that is necessary for the completion of the Notice of Variation by Barrick, or not having provided Barrick with such ten (10) Business Day deadline to commence other assistance in the Offer will preparation of the Notice of Variation as may be reasonably requested by Barrick in order that the Notice of Variation comply in all material respects with Applicable Securities Laws, then the Latest Mailing Time shall be extended to such date as the Company is ready to file the Schedule 14D-9 11:59 p.m. on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) fifth business days (as defined in Rule 14d-1 under the Exchange Act) day following the date of commencement on which Placer Dome supplies such necessary documents, information or other assistance. (c) Prior to the printing of the OfferNotice of Variation, Barrick shall provide Placer Dome and its counsel with a reasonable opportunity to review and comment on it, recognizing that whether or any subsequent scheduled expiration datenot such comments are appropriate will be determined by Barrick, ifacting reasonably. (d) Barrick agrees that, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer set out in Schedule A hereto shall have been satisfied or waived, Barrick shall take up and pay for all of the Shares tendered under the Offer promptly and in any event no later than two business days following the time at which it becomes entitled to take up such Shares under the Offer pursuant to applicable Laws. (ore) The Offer shall be made in accordance with Applicable Securities Laws and shall expire not earlier than midnight (Toronto time) on January 19, 2006 and not later than the 20th day following the Latest Mailing Time, subject to the extent permitted by this Agreementright of Barrick to extend from time to time the period during which Shares may be deposited under the Offer (such time, waived by Purchaseras it may be extended, is referred to herein as the "Expiry Time"). Barrick shall use all reasonable efforts to consummate the Offer, subject to the terms and conditions hereof and thereof. (f) but It is understood and agreed that Barrick may, in its sole discretion, modify or waive any term or condition of the Offer; provided that Barrick shall not, without the prior consent of Placer Dome, increase or decrease the Minimum Tender Condition, impose additional conditions to the Offer, decrease the consideration per Share, decrease the maximum cash consideration or maximum share consideration, decrease the number of Shares in respect of which the Offer is made, change the form of consideration payable under the Offer (other than to increase the total consideration per Share and/or add additional consideration) or otherwise vary the Offer or any terms or conditions thereof (which for greater certainty, subject to Section 2.1(g), does not include a waiver of a condition) in a manner which is adverse to the Shareholders. (g) Barrick may waive the Minimum Tender Condition only if: (i) there shall have been validly tendered deposited pursuant to the Offer and not withdrawn pursuant to at the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, Expiry Time that number of Shares which constitutes less than 90at least 60% of the Shares then outstanding, determined outstanding calculated on a fully-fully diluted basis (as defined in Section 1.1(a)), Purchaser maybasis, or at (ii) Barrick obtains such relief from the Company’s request (subject United States Securities and Exchange Commission as may be necessary to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not allow Barrick to take up Shares on more than twenty (20) Business Days following the Purchase Date, in which event Purchaser one date and there shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares have been validly deposited pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser Offer and not withdrawn at an expiry date of the funds necessary to pay for all Offer that number of Shares that Purchaser becomes so obligated to pay for pursuant to which constitutes at least 50% of the OfferShares outstanding calculated on a fully diluted basis. The Offer Price shallIn the circumstances described in clause (ii), subject to any required withholding of TaxesApplicable Securities Laws, be net Barrick will use its commercially reasonable efforts to extend the time for deposits to the sellers Offer after any such take-up to permit Shareholders holding, in cashthe aggregate, upon the terms and subject to the conditions 662/3% of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in Shares outstanding calculated on a fully diluted basis to accept the Offer. (bh) As promptly as practicable The obligation of Barrick to amend the Original Offer is conditional on the date of commencement prior satisfaction of the Offerfollowing conditions, Parent all of which conditions are included for the sole benefit of Barrick and Purchaser shall file any or all of which may be waived by Barrick in whole or in part in its sole discretion (other than the condition set out in Section 2.1(h)(iv) below, which must be waived if Barrick has failed to use its reasonable best efforts to obtain such assurances, and the condition set out in Section 2.1(h)(ix) below, which may be waived only with the SEC consent of Placer Dome) without prejudice to any other right it may have under this Agreement and which conditions shall be deemed to have been waived by the making of the amended Offer: (i) the obligations of Barrick hereunder shall not have been terminated pursuant to Section 7.1; (ii) the Barrick Common Shares to be issued to Shareholders shall have been conditionally approved for listing on the TSX and Barrick shall not have been advised that such Barrick Common Shares would not be approved for listing, subject to notice of issuance, by the NYSE; (iii) no change, effect, event, circumstance, occurrence or state of facts (other than a Tender Offer Statement change, effect, event, circumstance, occurrence or state of facts caused by Barrick, a Barrick Subsidiary or any Person acting jointly or in concert with Barrick) shall have occurred that would render it impossible for one or more of the conditions set out on Schedule TO A hereto to be satisfied; (together iv) assurances satisfactory to Barrick, acting reasonably, shall have been received by Barrick that all waivers, rulings or orders necessary for Barrick to amend the Original Offer and to mail to the Shareholders the Notice of Variation have been or will be obtained from all applicable securities commissions or other regulatory authorities; (v) the Placer Dome Board of Directors shall have unanimously recommended that Shareholders accept the Offer and shall not have withdrawn such recommendation or changed, modified or qualified such recommendation in a manner that has substantially the same effect or taken any other action or made any other public statement in connection with the Offer inconsistent with such recommendation; (vi) the Placer Dome Board of Directors shall have prepared and approved in final form, printed for distribution to Shareholders and delivered to Barrick for mailing with the Notice of Variation an amended directors' circular (the "Directors' Circular") unanimously recommending that Shareholders accept the Offer; (vii) Placer Dome shall have complied in all amendmentsrespects with its covenants in Section 6.2 and in all material respects with its other covenants in this Agreement; (viii) all representations and warranties of Placer Dome set forth in this Agreement shall be true and correct in all material respects at the time of the making of the amended Offer; and (ix) no cease trade order, supplements and exhibits thereto, injunction or other prohibition at Law shall exist against Barrick making the “Schedule TO”) with respect to Offer or taking up or paying for Shares deposited under the Offer. The Schedule TO Prior to printing the Directors' Circular, Placer Dome shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together provide Barrick with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In additionon it, Parent and Purchaser shall provide the Company and its counsel with any comments recognizing that Parent whether or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any not such comments are appropriate will be determined by Placer Dome, acting reasonably. The Directors' Circular shall include a copy of the written fairness opinion of each of CIBC World Markets Inc., Xxxxxx Xxxxxxx & Co. Incorporated and provide the Company with copies of all such responsesXxxxxxx, Sachs & Co. referred to below. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided As promptly as practicable (and in any event within seven Business Days after the date hereof; provided that this Agreement shall not have been terminated if the Company fails to satisfy its obligations under Section 1.2(b) in accordance with Article VII and none of a timely manner to allow for the events or circumstances set forth in clause (iii) of Annex A hereto Purchaser to reasonably meet such seven Business Day deadline, then Purchaser shall have occurred and be existing (and shall not have been waived by Purchasera reasonable additional period of time in which to commence the Offer as promptly as practicable after receiving the information from the Company under Section 1.2(b)), the Purchaser shall (and Parent shall cause Purchaser to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) , the Offer to purchase all of the outstanding Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement Price. The consummation of the Offer. The obligation , and the obligations of the Purchaser to accept for payment and pay for the Shares tendered pursuant to the Offer shall be subject only to to: (xi) the satisfaction of the condition that at the expiration of the Offer there be being validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the Expiration Date that number of Shares which, when taken together with the number of Shares (if any) then owned of record by Parent or any of its Subsidiariesthe Purchaser or with respect to which Parent or the Purchaser otherwise has, directly or indirectly, sole voting power (other than pursuant to the Support Agreement), represents more than 50% at least a majority of the Shares then outstanding determined on a fully-fully diluted basis (on and in any event no less than a “fully-diluted basis” meaning majority of the number voting power of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as capital stock of the date hereof, by Company then outstanding on a fully diluted basis and entitled to vote upon the Company Preferred Stockholders) or similar obligations regardless adoption of the conversion or exercise price, the vesting schedule or other terms and conditions thereofthis Agreement) (collectively, the “Minimum Condition”), ; and (yii) the satisfaction (satisfaction, or waiver by Parent or the Purchaser) , of the other conditions set forth in Annex A hereto. Purchaser expressly reserves I. (b) Subject to the right to waive any satisfaction of such conditions (other than the Minimum Condition)Condition and the satisfaction, to increase or waiver by Parent or the price per Share payable in the Offer and to make any other changes in the terms Purchaser, of the Offer; provided, however, that no change may be made without the prior written consent of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the other conditions set forth in Annex A heretoI, waives the Minimum Condition or makes any other changes in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause the Purchaser to) accept for payment and pay for all Shares validly tendered and not properly withdrawn pursuant to the Offer as promptly as practicable after it the Purchaser is legally permitted to do so under applicable Laws Law. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest, subject to any withholding of Taxes required by applicable Law in accordance with Section 2.7. (but c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in no event later than two (2) Business Days after such expiration date accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. Parent and the Purchaser expressly reserve the right to increase the Offer Price or to make any other changes in the terms and conditions of the Offer). In addition; provided, ifhowever, at that unless otherwise contemplated by this Agreement or as previously approved by the expiration date Company in writing, the Purchaser shall not (i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer except in the situation where Parent or Purchaser adds new additional consideration to the Offer, (iii) reduce the maximum number of Shares to be purchased in the Offer, (iv) amend or waive the Minimum Condition, (v) amend any of the Offerother conditions to the Offer set forth in Annex I in a manner adverse to the holders of Shares, or (vi) extend the Expiration Date in a manner other than in accordance with this Agreement. (d) Unless extended in accordance with the terms of this Agreement, the Offer shall expire at midnight (New York City time) on the date that is 20 Business Days following the commencement of the Offer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, the “Initial Expiration Date”) or, if the Initial Expiration Date has been extended in accordance with this Agreement, the date and time on which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). (e) If on or prior to any then scheduled Expiration Date, all of the conditions to the Offer (including the Minimum Condition and the other conditions and requirements set forth in Annex I) have not been satisfied (orsatisfied, to the extent permitted by this Agreement, or waived by Parent or the Purchaser) but , the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause the Purchaser to) (A) give extend the required notice Offer on one or more occasions for successive periods of up to 20 Business Days each, the length of each such period to be determined by Parent in its sole discretion, in order to permit the satisfaction of such subsequent offering period conditions until the satisfaction, or, where permitted by applicable Law and this Agreement, waiver by Parent or the Purchaser of such conditions; provided, however, that the Purchaser shall not be required to extend the Offer if any condition to the Offer has not been satisfied on or prior to the date that is ninety days (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” Outside Date”), beyond the Outside Date; provided, however, that if as of the Outside Date either the HSR Condition or the CFIUS Condition shall not have been satisfied or any of the Other Required Governmental Approvals shall not have been obtained or any waiting period (or extension thereof) shall not have lapsed, then the Outside Date shall be extended for ninety days (the extended period being the “Outside Date”). Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Purchaser to terminate this Agreement pursuant to Article 7 hereof. In addition, the Purchaser shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the U.S. Securities and immediately accept Exchange Commission (the “SEC”) or its staff. (f) Notwithstanding the foregoing, only if necessary to obtain sufficient Shares (after taking into account and promptly pay including Shares issuable upon the exercise of the Top-Up Option) to reach the Short Form Threshold, the Purchaser shall (and Parent shall cause the Purchaser to) provide for all Shares tendered during any a “subsequent offering period,” in each case (and one or more extensions thereof) in accordance with Rule 14d-11 under the Exchange ActAct of up to 10 Business Days, the length of the initial “subsequent offering period” and each extension thereof to be determined by the Purchaser in its sole discretion. On Subject to the terms and conditions of this Agreement and the Offer, the Purchaser shall (and Parent shall cause the Purchaser to) immediately accept for payment, and pay for, all Shares that are validly tendered pursuant to the Offer during such “subsequent offering period”. The Offer Documents will provide for the possibility of a “subsequent offering period” in a manner consistent with the terms of this Section 1.1(f). (g) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is terminated pursuant to Article 7. If this Agreement is terminated pursuant to Article 7, the Purchaser shall (and Parent shall cause the Purchaser to) promptly (and in any event within 24 hours of such termination), irrevocably and unconditionally terminate the Offer. If the Offer is terminated or withdrawn by the Purchaser, or this Agreement is terminated prior to the date that Purchaser becomes obligated to pay for purchase of Shares pursuant to in the Offer, Parent the Purchaser shall provide or promptly return, and shall cause any depositary acting on behalf of the Purchaser to be provided to Purchaser the funds necessary to pay for return, in accordance with applicable Law, all tendered Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offerregistered holders thereof. (bh) As promptly soon as practicable on the date of the commencement of the Offer, Parent and the Purchaser shall file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer). The Schedule TO shall contain or incorporate by reference an offer include, as exhibits, the Offer to purchase and forms Purchase, a form of the related letter of transmittal and all other ancillary Offer documents a form of summary advertisement (collectively, together with all amendments, any amendments and supplements and exhibits thereto, the “Offer Documents”). Parent and the Purchaser shall agree to cause the Offer Documents to be disseminated to the holders of the Shares Shares, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderthe Exchange Act. Parent and the Purchaser, on the one hand, and the Company, on the other hand, shall agree to promptly correct any information provided by them it for use in the Offer Documents Documents, if and to the extent that it shall be or shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and the Purchaser shall agree to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of the Shares, in each case, case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderthe Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and comment upon the Offer Documents before they are filed with the SEC SEC, and disseminated Parent and the Purchaser shall give due consideration to holders of Sharesthe reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent or Parent, the Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after the receipt of such comments, consult with and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and Parent and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsescounsel. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.

The Offer. (a) Provided Subject only to any Laws or Orders preventing commencement of the Offer, provided that this Agreement shall not have been terminated in accordance with Article VII ARTICLE 8 hereof and none of that the events or circumstances Company complies with its covenants set forth in clause this Agreement, then Acquisition Corp. shall, as promptly as practicable, but not later than the tenth (iii10th) of Annex A hereto shall have occurred and be existing Business Day after the date hereof (and shall not have been waived by Purchaserunless due to a Force Majeure Event), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder amended (the “Exchange Act”"EXCHANGE ACT")) an offer (the Offer "OFFER") to purchase all of the Common Shares at the Offer Price a price of $9.60 per share in cash (such price, or such higher price per Common Share as promptly as reasonably practicable, but may be paid in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser , the "OFFER PRICE"), subject to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the holders of Common Shares have validly tendered and not withdrawn prior to the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that a number of Common Shares which, when taken together with the Common Shares (if any) then beneficially owned by Parent or any of its SubsidiariesAcquisition Corp., represents more than 50at least 51% of the Common Shares then outstanding determined on a fullyFully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) Diluted Basis (the “Minimum Condition”), "MINIMUM CONDITION") and (y) the satisfaction (or waiver by Purchaser) of subject to the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right Subject to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, that no change may be made without the prior written consent satisfaction of the Company which decreases the price per Share payable in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A hereto, waives the Minimum Condition and the prior satisfaction (or makes any other changes waiver in the terms of the Offer that are in any manner adverse to the holders of Shares or, except as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate this Agreement in accordance with Section 7.1, Purchaser may, and at the request of the Company shall, extend the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days (as defined in Rule 14d-1 under the Exchange Act) following the date of commencement of the Offer, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted writing by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (iAcquisition Corp.) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the other conditions of the Offer set forth in Annex A hereto A, Acquisition Corp. shall use reasonable best efforts to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of consummate the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (accordance with its terms and Parent shall cause Purchaser to) to accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer. (b) As promptly as practicable on the date of commencement of the Offer, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that it shall be or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shares, in each case, as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC and disseminated to holders of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.and

The Offer. (a) Provided that this Agreement shall not have been terminated in accordance with Article VII and none of the events or circumstances set forth in clause (iii) of Annex A hereto shall have occurred and be existing As promptly as reasonably practicable (and shall not have been waived in any event within fifteen (15) Business Days after the date of this Agreement, subject to compliance by Purchaserthe Company of its obligations pursuant to Section 1.2), the Purchaser shall (and Parent shall cause Purchaser to) commence (commence, within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) , the Offer to purchase all of the outstanding Shares for cash at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement Price. The consummation of the Offer. The , and the obligation of the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer (and any obligation of Parent to cause the Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer), shall be subject only to to: (xi) the satisfaction of the condition that at the expiration of the Offer there be being validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the Expiration Date that number of Shares which, when taken together with the number of Shares (if any) then owned by Parent or any of its wholly-owned direct or indirect Subsidiaries, including the Purchaser, represents more than 50% at least a majority of the Shares then outstanding determined on and no less than a fully-diluted basis majority of the voting power of the shares of capital stock of the Company then outstanding and entitled to vote upon the adoption of this Agreement and approval of the Merger (on a “fully-diluted basis” meaning excluding from the number of tendered Shares, but not from the number of outstanding Shares, Shares then issued and outstanding plus all shares of Company Common Stock which tendered pursuant to guaranteed delivery procedures (to the Company may be required to issue as extent such procedures are permitted by the Purchaser) that have not yet been delivered in settlement or satisfaction of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereofguarantee) (collectively, the “Minimum Condition”), ) and (yii) the satisfaction (satisfaction, or waiver by Purchaser) the Purchaser (to the extent permitted in Annex I), of each of the other conditions set forth in Annex A heretoI. For the purposes of determining the Minimum Condition, the “number of Shares then outstanding” and “number of shares of capital stock of the Company outstanding” shall mean, without duplication, (i) the aggregate number of Shares then-outstanding, plus (ii) the aggregate number Shares subject to then-outstanding vested Company RSUs and vested Company PSUs that have not yet settled into Shares that are then-outstanding, plus (iii) the aggregate number of Shares that the Company is required to issue upon conversion, settlement or exercise of all then-outstanding Company Options for which the Company has received notices of exercise or conversion and payment of the applicable aggregate exercise price prior to the expiration of the Offer and for which the Company has not yet issued Shares. Other than the Minimum Condition, and subject to Annex I, the conditions to the Offer set forth in this Section 1.1 and clause (c) of the initial paragraph of Annex I are for the sole benefit of the Purchaser and may be asserted by the Purchaser regardless of the circumstances giving rise to any such conditions (except if any breach of the Merger Agreement or other action or inaction by Parent or the Purchaser has been a proximate cause of or proximately resulted in the failure or the non-satisfaction of any such condition) and, subject to the other terms of this Agreement (including Annex I), may be waived by the Purchaser, in its sole discretion, in whole or in part at any time and from time to time. (b) Subject to the satisfaction of the Minimum Condition and the satisfaction, or waiver by the Purchaser (to the extent permitted by Annex I), of each of the other conditions set forth in Annex I, the Purchaser shall, and Parent shall cause the Purchaser to, upon the Expiration Date, cause the Acceptance Time to occur, and the Purchaser shall, and the Parent shall cause the Purchaser to, accept for payment all Shares validly tendered and not properly withdrawn pursuant to the Offer upon the occurrence of the Acceptance Time and pay for such Shares as promptly as practicable (and in any event not more than two (2) Business Days) following the Acceptance Time. The Offer Price payable in respect of each Share validly tendered and not properly withdrawn pursuant to the Offer shall be paid, without interest, subject to any applicable withholding taxes. To the extent any such amounts are so withheld and paid to the applicable Governmental Authority, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person to whom such amounts would otherwise have been paid. (c) The Offer shall be made by means of an offer to purchase (the “Offer to Purchase”) that describes the terms and conditions of the Offer in accordance with this Agreement, including the Minimum Condition and the other conditions set forth in Annex I. The Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and Price or to make any other changes in the terms and conditions of the Offer; provided, however, that no change may be made without that, notwithstanding anything herein to the prior written consent of contrary, except as approved in advance by the Company which decreases in writing, the price per Share payable in Purchaser shall not, and Parent shall cause Purchaser not to, (i) decrease the OfferOffer Price, changes (ii) change the form of consideration payable in the OfferOffer (other than adding consideration), reduces (iii) reduce the maximum number of Shares sought to be purchased in the Offer, imposes (iv) amend or waive the Minimum Condition or the condition set forth in clauses (a), (b), (c)(ii), or (c)(viii) of Annex I, (v) add to or amend any of the other conditions to the Offer in addition to, or modifies or amends, the conditions set forth in Annex A heretoI, waives the Minimum Condition or makes any other changes (vi) except as provided in the terms of Section 1.1(e), extend the Offer that are or (vii) otherwise amend the Offer in any manner that is adverse to the holder of Shares. Notwithstanding anything to the contrary in this Agreement, the Offer Price shall be adjusted appropriately to reflect the effect of any stock split, reverse stock split, stock dividend (including any dividend or distribution of securities convertible into Shares), cash dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like change with respect to the Shares, occurring on or after the date of this Agreement and prior to the Acceptance Time, and such adjustment to the Offer Price shall provide to the holders of Shares or, except the same economic effect as provided below, extends the expiration date of the Offer. Notwithstanding the foregoing, subject to the right of the parties to terminate contemplated by this Agreement prior to such action; provided, that nothing in this sentence shall be construed to permit the Company to take any action with respect to its securities that is not permitted by the terms of this Agreement. (d) Unless extended in accordance with Section 7.1the terms of this Agreement, Purchaser may, and the Offer shall initially expire at midnight (New York City time) at the request end of the Company shall, extend day on the Offer (i) beyond the initial scheduled expiration date, which shall be date that is twenty (20) business days Business Days (as defined calculated in accordance with Rule 14d-1 14d-1(g)(3) under the Exchange Act) following the date of commencement of the OfferOffer (within the meaning of Rule 14d-2 under the Exchange Act) (such date and time, or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied “Initial Expiration Date”) or, to if the extent Initial Expiration Date has been extended as required by or otherwise permitted by this Agreement, the date and time to which the Offer has been so extended (the Initial Expiration Date, or such later date and time to which the Initial Expiration Date has been extended in accordance with this Agreement, the “Expiration Date”). (e) If on the then scheduled Expiration Date, any condition to the Offer (including the Minimum Condition and the other conditions set forth in Annex I) has not been satisfied, or, where permitted by applicable Law, this Agreement and Annex I, waived by the Purchaser, the Purchaser shall (and Parent shall cause the Purchaser to), extend the Offer for successive periods of ten (ii10) Business Days each in order to permit the satisfaction of such conditions until satisfied or this Agreement is terminated in accordance with its terms. In addition, the Purchaser shall (and Parent shall cause the Purchaser to) extend the Offer for any period or periods required by any ruleapplicable Law or applicable rules, regulation regulations, interpretations or interpretation positions of the U.S. United States Securities and Exchange Commission (the “SEC”) or its staff or any applicable stock exchange, including the staff thereof applicable NYSE. Notwithstanding anything to the Offer; provided that contrary in this Agreement, the Purchaser shall not be required to extend the Offer to a date later on more than two (2) occasions in the Outside Date. Each extension event that all of the conditions to the Offer have been satisfied or waived (if permitted hereunder) except for the Minimum Condition. Nothing in this Section 1.1(e) shall be deemed to impair, limit or otherwise restrict in any manner the right of Parent or the Company to terminate this Agreement pursuant to clause ARTICLE VII hereof. (if) The Purchaser shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of Company, except if this Agreement and is terminated pursuant to ARTICLE VII. If this Agreement is terminated pursuant to ARTICLE VII, the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment promptly (and pay for all Shares validly tendered in any event within 48 hours of such termination), irrevocably and not unconditionally terminate the Offer. If the Offer is terminated or withdrawn pursuant by the Purchaser, or this Agreement is terminated prior to the Offer promptly after it is permitted to do so under applicable Laws (but purchase of Shares in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than 90% of the Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give promptly return, and shall cause any depositary acting on behalf of the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case Purchaser to return, in accordance with Rule 14d-11 under the Exchange Act. On or prior applicable Law, all tendered Shares to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offerregistered holders thereof. (bg) As promptly soon as practicable on the date of the commencement of the Offer, Parent and the Purchaser shall (i) prepare and file with the SEC SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect ), which shall include, as exhibits, the Offer to the Offer. The Schedule TO shall contain or incorporate by reference an offer to purchase and forms Purchase, a form of the related letter of transmittal and all other ancillary Offer documents a form of summary advertisement (collectively, together with all any amendments, supplements and exhibits thereto, the “Offer Documents”), (ii) deliver a copy of the Schedule TO, to the Company at its principal executive offices in accordance with Rule 14d-3(a) promulgated under the Exchange Act, and (iii) give telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail a copy of the Schedule TO, to NYSE, in accordance with Rule 14d-3(a) promulgated under the Exchange Act. Parent and The Purchaser shall agrees to cause the Offer Documents to be disseminated to the holders of the Shares Shares, as and to the extent required by the Securities Act and the Exchange Act. The Company shall promptly furnish to Parent and the Purchaser in writing all information concerning the Company and its Subsidiaries and stockholders that may be required by applicable federal securities Laws and rules and regulations promulgated thereunderor reasonably requested by Parent or the Purchaser for inclusion in the Offer Documents. Parent and The Purchaser, on the one hand, and the Company, on the other hand, shall agree to promptly correct any information provided by them it for use in the Offer Documents Documents, if and to the extent that it shall be or shall have become false or misleading in any material respectrespect or as otherwise required by applicable Law, and Parent and the Purchaser shall agrees to cause the Offer Documents Documents, as so corrected corrected, to be filed with the SEC and disseminated to holders of the Shares, in each case, case as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunderthe Securities Act or the Exchange Act. Without limiting the foregoing, in the event of an Adverse Recommendation Change, Parent shall cause the Offer Documents to disclose such event. The Company and its counsel shall be given a reasonable opportunity to review and comment upon the Offer Documents before they are filed with the SEC SEC, and disseminated the Purchaser shall give due consideration to holders of Sharesthe reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition, Parent and the Purchaser shall provide the Company and its counsel with copies of any comments written comments, and shall inform them of any oral comments, that Parent or the Purchaser or their its counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with and any written or oral responses thereto. The Company and its counsel shall be given a reasonable opportunity to review any such written responses and the Purchaser shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel prior to responding to any such comments counsel. Notwithstanding the foregoing, Parent and provide the Company with copies of all such responses. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable Purchaser’s obligations pursuant to the immediately preceding three sentences shall not apply if an Adverse Recommendation Change has occurred. Parent and Purchaser shall use commercially reasonable efforts to as promptly as practicable respond to any comments of the SEC or its staff regarding the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax LawDocuments.

The Offer. As regards the Offer: (a) Provided that this Agreement shall not have been terminated in accordance the Company shall: (i) provide the Agent with Article VII and none a copy of the events Offer Press Release as soon as reasonably practicable after its release; (ii) post the Offer Document to holders of the Target Shares within 28 days after the date on which the Offer Press Release is issued (or circumstances set forth in clause such other longer period as the Panel may permit); (iii) of Annex A hereto shall have occurred and be existing (and shall not have been waived by Purchaser), Purchaser shall (and Parent shall cause Purchaser to) commence (within the meaning of Rule 14d-2 under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”)) ensure that the Offer to purchase Press Release and Offer Document contain all of the Shares at the Offer Price as promptly as reasonably practicable, but in no event later than ten (10) Business Days, after the date of this Agreement; provided, however, that such ten (10) Business Day deadline to commence the Offer will be extended to such date as the Company is ready to file the Schedule 14D-9 on the same date as the commencement of the Offer. The obligation of Purchaser to accept for payment and pay for Shares tendered pursuant to the Offer shall be subject only to (x) the satisfaction of the condition that at the expiration of the Offer there be validly tendered in accordance with the terms of the Offer and not withdrawn that number of Shares which, when taken together with Shares (if any) then owned by Parent or any of its Subsidiaries, represents more than 50% of the Shares then outstanding determined on a fully-diluted basis (on a “fully-diluted basis” meaning the number of Shares then issued and outstanding plus all shares of Company Common Stock which the Company may be required to issue as of such date pursuant to options, warrants, convertible securities (other than the shares of Series D-1 Preferred Stock owned, beneficially or of record, as of the date hereof, by the Company Preferred Stockholders) or similar obligations regardless of the conversion or exercise price, the vesting schedule or other material terms and conditions thereof) (the “Minimum Condition”), and (y) the satisfaction (or waiver by Purchaser) of the other conditions set forth in Annex A hereto. Purchaser expressly reserves the right to waive any of such conditions (other than the Minimum Condition), to increase the price per Share payable in the Offer and to make any other changes in the terms of the Offer; provided, however, and (iv) ensure that no change may be made without the prior written consent of the Company which decreases the price per Share payable Offer Document corresponds in the Offer, changes the form of consideration payable in the Offer, reduces the maximum number of Shares sought to be purchased in the Offer, imposes conditions all material respects to the Offer in addition to, or modifies or amends, the terms and conditions set forth in Annex A hereto, waives the Minimum Condition or makes any other changes in the terms of the Offer that are as contained in any manner adverse the Offer Press Release (save for such changes as may be required by the Panel or which may be necessary to ensure compliance with the Code); (v) use all reasonable endeavours to ensure that, as soon as reasonably practicable after the Unconditional Date where acceptances of the Offer have been received from holders of Shares or, except as provided below, extends the expiration date at least 90% of the Offer. Notwithstanding Target Shares to which the foregoing, subject to the right of the parties to terminate this Agreement Offer relates (as that expression is construed in accordance with Section 7.1, Purchaser may, and at the request 979 of the Company shallCompanies Act 2006) and, extend in the case where the Target Shares to which the Offer (i) beyond the initial scheduled expiration date, which shall be twenty (20) business days relates are voting shares (as defined that expression is construed in Rule 14d-1 under the Exchange Act) following the date of commencement accordance with Section 979 of the OfferCompanies Act 2006), or any subsequent scheduled expiration date, if, at the scheduled expiration of the Offer, any of the conditions to Purchaser’s obligation to accept for payment and to pay for Shares tendered shall not be satisfied or, to the extent permitted by this Agreement, waived and (ii) for any period required by any rule, regulation or interpretation of the U.S. Securities and Exchange Commission (the “SEC”) or the staff thereof applicable to the Offer; provided that Purchaser shall not be required to extend the Offer to a date later than the Outside Date. Each extension of the Offer pursuant to clause (i) of the preceding sentence shall not exceed ten (10) Business Days (or such longer period as the Company and Purchaser may agree in writing in any particular instance) or such fewer number of days that Purchaser reasonably believes are necessary to cause the conditions of the Offer set forth in Annex A hereto to be satisfied. Subject to the terms of this Agreement and the satisfaction or earlier waiver of all the conditions of the Offer set forth in Annex A hereto as of any expiration date of the Offer, Purchaser shall (and Parent shall cause Purchaser to) accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer promptly after it is permitted to do so under applicable Laws (but in no event later than two (2) Business Days after such expiration date of the Offer). In addition, if, at the expiration date of the Offer, all of the conditions to the Offer acceptances have been satisfied (or, to the extent permitted by this Agreement, waived by Purchaser) but the number received from holders of Shares validly tendered and not withdrawn pursuant to the Offer, when taken together with Shares, if any, then owned by Parent and its Subsidiaries, constitutes less than at least 90% of the voting rights carried by such Target Shares, the Compulsory Acquisition Procedure is implemented in respect of the holders of those Target Shares then outstanding, determined on a fully-diluted basis (as defined in Section 1.1(a)), Purchaser may, or at the Company’s request (subject who have yet to applicable Laws) shall, provide for one or more “subsequent offering periods” (as contemplated by Rule 14d-11 under the Exchange Act) for at least three (3) but not more than twenty (20) Business Days following the Purchase Date, in which event Purchaser shall (and Parent shall cause Purchaser to) (A) give the required notice of such subsequent offering period and (B) immediately accept and promptly pay for all Shares tendered during the “initial offering period” and immediately accept and promptly pay for all Shares tendered during any “subsequent offering period,” in each case in accordance with Rule 14d-11 under the Exchange Act. On or prior to the date that Purchaser becomes obligated to pay for Shares pursuant to the Offer, Parent shall provide or cause to be provided to Purchaser the funds necessary to pay for all Shares that Purchaser becomes so obligated to pay for pursuant to the Offer. The Offer Price shall, subject to any required withholding of Taxes, be net to the sellers in cash, upon the terms and subject to the conditions of the Offer. The Company agrees that no shares of Company Common Stock held by the Company or any of its Subsidiaries will be tendered in the Offer.; (b) As promptly as practicable on the date Company shall not without the consent of commencement all of the Lenders: (i) amend or vary, in whole or in part, any material term or condition of the Offer in any respect (ii) waive, withdraw, decide not to or fail to enforce, in whole or in part, any material term or condition of the Offer; or (iii) declare, Parent and Purchaser shall file with the SEC a Tender Offer Statement on Schedule TO (together with all amendments, supplements and exhibits thereto, the “Schedule TO”) with respect to the Offer. The Schedule TO shall contain accept or incorporate by reference an offer to purchase and forms treat as satisfied any condition of the related letter of transmittal and all other ancillary Offer documents (collectively, together with all amendments, supplements and exhibits thereto, the “Offer Documents”). Parent and Purchaser shall cause the Offer Documents to be disseminated to the holders of the Shares as and to the extent required by applicable federal securities Laws and rules and regulations promulgated thereunder. Parent and Purchaser, on the one hand, and the Company, on the other hand, shall promptly correct any information provided by them for use in the Offer Documents if and to the extent that where it shall be is not actually satisfied or shall have become false or misleading in any material respect, and Parent and Purchaser shall cause the Offer Documents as so corrected to be filed with the SEC and disseminated to holders of the Shareshas not been complied with, in each case, case other than (1) as and to the extent required by the Code or the Panel or any applicable federal securities Laws and rules and regulations promulgated thereunderlaw, regulation or regulatory body or (2) in respect of the waiver of any Condition which the Company determines (acting on the advice of its legal advisers) that it is not entitled to invoke pursuant to Rule 13.5(a) of the Code. The Company and its counsel shall be given a reasonable opportunity Notwithstanding the above it is agreed that Lenders consent is not required to review and comment upon any of the following: (A) if the consideration payable under the Offer Documents before they are filed with is increased and such increase is funded from a Permitted Transaction under paragraph (b) of that definition; or (B) if the SEC and disseminated to holders consideration is reduced; or (C) if the threshold for acceptance of Shares. In addition, Parent and Purchaser shall provide the Company and its counsel with any comments that Parent or Purchaser or their counsel may receive from time to time from the SEC or its staff with respect to the Offer Documents promptly after the receipt of such comments, consult with the Company and its counsel prior to responding to any such comments and provide the Company with copies of all such responsesis waived or reduced. (c) Purchaser shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to the Offer (or in connection with any subsequent offering period) any such amounts as are required to be deducted and withheld with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or under any provision of state, local or foreign Tax Law.