Common use of CONDITIONS TO THE OFFER Clause in Contracts

CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Securities Exchange Act (relating to Purchaser's obligation to pay for or return tendered Common Shares promptly after termination or withdrawal of the Offer), pay for, and (subject to any such rules or regulations) may delay the acceptance for payment of any tendered Common Shares and (except as provided in this Agreement) amend or terminate the Offer as to any Common Shares not then paid for if (i) the condition that there shall be validly tendered and not withdrawn prior to the expiration of the Offer a number of Common Shares which represents at least 51% of the total number of issued and outstanding Common Shares on a fully diluted basis (excluding, however, shares of common stock issuable (x) upon exercise of conversion rights pursuant to the Deferral Agreement and (y) upon exercise of Company Options that are not exercisable prior to March 1, 2000), shall not each have been satisfied (the "MINIMUM CONDITION") or (ii) any applicable waiting period under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time after the date of this Agreement and before the time of payment for any Common Shares (whether or not any Common Shares have theretofore been accepted for payment or paid for pursuant to the Offer), any of the following conditions exists:

CONDITIONS TO THE OFFER. Notwithstanding any other provision provisions of the Offer, but subject to the terms and conditions of that certain Agreement and Plan of Merger, dated as of April 28, 2013 (the “Agreement”), by and among Bayer HealthCare LLC, a Delaware limited liability company (“Parent”), ▇▇▇▇▇▇ Acquisition Company, a Delaware corporation and a wholly owned subsidiary of Parent (“Purchaser”), and Conceptus, Inc., a Delaware corporation (the “Company”) (capitalized terms that are used but not otherwise defined in this Annex A shall have the respective meanings ascribed thereto in the Agreement), Purchaser shall not be required to, and Parent shall not be required to cause Purchaser to, accept for payment or, subject to any applicable rules and regulations of the SEC, SEC (including Rule 14e-1(c) promulgated under the Securities Exchange Act (relating to Purchaser's the obligation of Purchaser to pay for or return Shares tendered Common Shares in the Offer promptly after termination or withdrawal of the Offer)), pay for, and (subject to for any such rules or regulations) may delay the acceptance for payment of any Shares tendered Common Shares and (except as provided in this Agreement) amend or terminate the Offer as to any Common Shares not then paid for if (i) the condition that there shall be validly tendered and not withdrawn prior to the expiration of the Offer a number of Common Shares which represents at least 51% of the total number of issued and outstanding Common Shares on a fully diluted basis (excluding, however, shares of common stock issuable (x) upon exercise of conversion rights pursuant to the Deferral Agreement and (y) upon exercise of Company Options that are not exercisable prior to March 1, 2000), Minimum Condition shall not each have been satisfied (at the "MINIMUM CONDITION") or Expiration Date; (ii) any applicable the waiting period under the HSR Act applicable to the transactions contemplated by the Agreement shall not have expired or been terminated at or prior to the expiration of the Offer Expiration Date; or (iii) at any time after the date of this Agreement and before the time of payment for any Common Shares (whether or not any Common Shares have theretofore been accepted for payment or paid for pursuant to the Offer), any of the following conditions existsshall exist or has occurred and is continuing at the Expiration Date:

CONDITIONS TO THE OFFER. Notwithstanding any other provision of the OfferOffer or the Agreement, Purchaser in addition to (and not in limitation of) Subsidiary’s rights pursuant to the Agreement to extend and amend the Offer in accordance with the Agreement, Subsidiary shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under of the Securities Exchange Act (relating to Purchaser's obligation to Act, pay for or return tendered Common Shares promptly after termination or withdrawal of the Offer), pay for, and (subject to any such rules or regulations) may delay the acceptance for payment of or, subject to Rule 14e-1(c) of the Exchange Act, the payment for, any validly tendered shares of Company Common Shares Stock not theretofore accepted for payment or paid for, and Subsidiary may terminate or amend the Offer (except as provided in this subject to Section 1.1 of the Agreement) amend or terminate the Offer as to any Common Shares not then paid for if (i) a number of shares of Company Common Stock representing a majority of the condition total number of shares of Company Common Stock that there would be outstanding after giving effect to the exercise and conversion of all outstanding options (whether or not currently exercisable) with an exercise price at or below the Merger Consideration, vested Stock Grants (and, to the extent not previously vested, any Stock Grants that would vest pursuant to Section 4.6), warrants and securities exercisable or convertible into Company Common Stock (the “Fully Diluted Shares”), shall be not have been validly tendered and not withdrawn prior to before the expiration of the Offer a number and not withdrawn or otherwise acquired by Parent or any of Common Shares which represents at least 51% its affiliates before the expiration of the total number of issued and outstanding Common Shares on a fully diluted basis Offer (excluding, however, shares of common stock issuable (x) upon exercise of conversion rights pursuant to the Deferral Agreement and (y) upon exercise of Company Options that are not exercisable prior to March 1, 2000“Minimum Condition”), shall not each have been satisfied (the "MINIMUM CONDITION") or (ii) any applicable waiting period under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iii) at any time on or after the date of this the Agreement and before the time of payment for any acceptance of such shares of Company Common Shares (whether or not any Common Shares have theretofore been accepted Stock for payment or paid for pursuant to the Offer)payment therefor, any of the following conditions existshas occurred and continues to exist:

CONDITIONS TO THE OFFER. Notwithstanding any other provision term of the OfferOffer or this Agreement, Purchaser Acquirer shall not be required to accept for payment orpayment, or subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Securities Exchange Act (relating to Purchaser's Acquirer’s obligation to pay for or return tendered Common Shares promptly after termination or of withdrawal of the Offer), to pay for, and (subject for any Shares tendered pursuant to any such rules or regulations) may delay the acceptance for payment of any tendered Common Shares and (except as provided in this Agreement) amend or terminate the Offer as to any Common Shares not then paid for if unless (i) the condition that there shall be have been validly tendered and not withdrawn prior to the expiration of the Offer a such number of Common Shares which represents that would constitute at least 5180% of the total number Shares that are outstanding immediately prior to the Share Acceptance and are not held by any member of issued and outstanding Common Shares a Filing Group (determined on a fully diluted basis primary basis, without giving effect to the exercise or conversion of any then-outstanding options, warrants, or other rights to acquire, or securities convertible into or exercisable for, Shares) (excluding, however, shares the “Minimum Tender Condition”) and (ii) the waiting period (and any extension thereof) under any Competition Law applicable to the purchase of common stock issuable (x) upon exercise of conversion rights Shares pursuant to the Deferral Agreement and (y) upon exercise of Company Options that are not exercisable prior to March 1, 2000), Offer shall not each have been satisfied (the "MINIMUM CONDITION") or (ii) any applicable waiting period under the HSR Act shall not have expired or been terminated prior to the expiration terminated. Furthermore, notwithstanding any other term of the Offer or (iii) this Agreement, Acquirer shall not be required to accept for payment or to pay for any Shares not theretofore accepted for payment or paid for if, at any time on or after the date of this Agreement and before the time acceptance of payment for any Common such Shares (whether or not any Common Shares have theretofore been accepted for payment or paid for pursuant to the Offer)payment therefore, any of the following conditions existsexist:

CONDITIONS TO THE OFFER. Notwithstanding any other provision of the Offer, Purchaser Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) promulgated under the Securities Exchange Act (relating to PurchaserSub's obligation to pay for or return tendered Common Shares promptly after expiration or termination or withdrawal of the Offer), to pay forfor any Shares tendered, and (subject to any such rules or regulations) may delay postpone the acceptance for payment or, subject to the restriction referred to above, payment for any Shares tendered, and, subject to the terms of any tendered Common Shares and (except as provided in this Merger Agreement) , may amend or terminate the Offer as to Offer, if, before acceptance for payment of such Shares (whether or not any Common Shares not then have theretofore been purchased or paid for if for), (i) the condition that there shall be have not been validly tendered and not withdrawn prior to the expiration of time the Offer shall otherwise expire a number of Common Shares which represents at least 51% constitutes two-thirds of the total Shares outstanding on a fully-diluted basis on the date of purchase ("on a fully-diluted basis" having the meaning, as of any date: the number of issued and outstanding Common Shares on a fully diluted basis (excludingoutstanding, however, shares of common stock issuable (x) upon exercise of conversion rights together with Shares the Company is then required to issue pursuant to the Deferral Agreement and (y) upon exercise of Company Options obligations outstanding at that are not exercisable prior to March 1, 2000), shall not each have been satisfied (the "MINIMUM CONDITION"date under employee stock option or other benefit plans or otherwise) or (ii) all material regulatory and related approvals have not been obtained or made on terms reasonably satisfactory to Sub and the Company shall have obtained all consents marked with an asterisk on Schedule 4.1(c) to the Merger Agreement on terms reasonably satisfactory to Sub; (iii) any applicable waiting period periods under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer or (iiiiv) at any time on or after the date of this the Merger Agreement and before the time of payment for any Common Shares (whether or not any Common Shares have theretofore been accepted acceptance for payment of, or paid for pursuant to the Offer)payment for, such Shares any of the following conditions existsevents shall occur:

CONDITIONS TO THE OFFER. The capitalized terms used in this Annex A have the meanings set forth in the attached Agreement, except that the term “the Agreement” shall be deemed to refer to the attached Agreement. Notwithstanding any other provision of the Offer, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c14e-l(c) promulgated under the Securities Exchange Act (relating to Purchaser's ’s obligation to pay for or return tendered Common Shares promptly after termination or withdrawal of the Offer), pay for, and (subject to any such rules or regulations) may delay the acceptance for payment of or, subject to the restriction referred to above, the payment for, any tendered Common Shares Shares, and (except as provided in this subject to the provisions of the Agreement) amend or may terminate the Offer as to and not accept for payment any Common tendered Shares not then paid for if (i) the condition that there shall be not have been validly tendered (other than Shares tendered by guaranteed delivery where actual delivery has not occurred) and not validly withdrawn prior to the expiration of the Offer a that number of Common Shares which represents at least 51which, when added to the Shares owned by Parent and its Affiliates, would represent more than 50% of the total number of issued and Shares then outstanding Common Shares determined on a fully fully-diluted basis (excluding, however, shares of common stock issuable (x) upon exercise of conversion rights pursuant to the Deferral Agreement and (y) upon exercise of Company Options that are not exercisable prior to March 1, 2000“Minimum Condition”), shall not each have been satisfied (the "MINIMUM CONDITION") or (ii) any applicable waiting period under the HSR Act shall not have expired or been terminated prior to the expiration of the Offer Offer, or (iii) at any time on or after the date of this the Agreement and before the time of payment for any Common Shares (whether or not any Common Shares have theretofore been accepted for payment or paid for pursuant prior to the expiration of the Offer), any of the following conditions existsshall exist and be continuing as of the expiration of the Offer: