Common use of Company Top-Up Shares Clause in Contracts

Company Top-Up Shares. (a) If in respect of the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable (i) all the Conditions are not satisfied on or prior to the Initial Closing Date or, in respect of any Additional Forward Sale Agreement entered into pursuant to Section 2(b)(iii) hereof, all the Additional Conditions are not satisfied on or prior to the related Option Closing Date, if any, as the case may be, and the Forward Seller elects, pursuant to Section 2(c) or 2(d) hereof, as the case may be, not to deliver the Forward Underwritten Shares or the Forward Option Shares, as applicable, otherwise deliverable by such Forward Seller, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement the full number of shares of Common Stock equal to the number of the Forward Underwritten Shares or the Forward Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller would incur a Stock Loan Fee (as defined under the Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 basis points per annum to do so, then, in each case, the Company shall issue and sell to the Underwriter, pursuant to Section 2(b)(ii) or 2(b)(iv) hereof, as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Forward Underwritten Shares or Forward Option Shares, as the case may be, that the Forward Seller does not so deliver and sell to the Underwriter. In connection with any such issuance and sale by the Company, the Company or the Underwriter shall have the right to postpone the Initial Closing Date or the related Option Closing Date, as the case may be, for a period not exceeding two business days in order to effect any required changes in any documents or arrangements. The shares of Common Stock sold by the Company to the Underwriter pursuant to this Section 12 in lieu of Forward Underwritten Shares are referred to herein as the “Company Top-Up Underwritten Shares,” and the shares of Common Stock sold by the Company to the Underwriter pursuant to this Section 12(a) in lieu of Forward Option Shares are referred to herein as the “Company Top-Up Option Shares.” (b) Neither the Forward Purchaser nor the Forward Seller shall have any liability whatsoever for any Forward Shares underlying the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable, that the Forward Seller does not deliver and sell to the Underwriter or any other party if (i) all of the Conditions are not satisfied on or prior to the Initial Closing Date, in the case of Forward Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the related Option Closing Date, in the case of Forward Option Shares, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Forward Underwritten Shares or the Forward Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller would incur a Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 basis points per annum to do so, and in the case of (i), (ii) or (iii), the Forward Seller elects, pursuant to Section 2(c) or 2(d) hereof, as the case may be, not to deliver and sell to the Underwriter the Forward Underwritten Shares or the Forward Option Shares, as applicable, (or a portion thereof) otherwise deliverable by the Forward Seller.

Company Top-Up Shares. (a) If in respect of In the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable event that (i) all the Conditions are not satisfied on or prior to the Initial Closing Date or, in respect of any Additional Forward Sale Agreement entered into pursuant to Section 2(b)(iii) hereof2(b)(i), all the Additional Conditions are not satisfied on or prior to the related Option any Additional Closing Date, if any, as the case may be, and the Forward Seller elects, pursuant to Section 2(c) or Section 2(d) hereof, as the case may be, not to deliver the Forward Borrowed Underwritten Shares or the Borrowed Option Shares deliverable by the Forward Option SharesSeller, as applicable, otherwise deliverable by such Forward Seller, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement the full number of shares of Common Stock equal to the number of the Forward Underwritten Shares or the Forward Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller would incur a Stock Loan Fee (as defined under the Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 basis points per annum to do so, then, in each case, the Company shall issue and sell to the Underwriter, pursuant to Section 2(b)(ii) or 2(b)(iv) hereof, as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Forward Underwritten Shares or Forward Option Shares, as the case may be, that the Forward Seller does not so deliver and sell to the Underwriter. In connection with any such issuance and sale by the Company, the Company or the Underwriter shall have the right to postpone the Initial Closing Date or the related Option Closing Date, as the case may be, for a period not exceeding two business days in order to effect any required changes in any documents or arrangements. The shares of Common Stock sold by the Company to the Underwriter pursuant to this Section 12 in lieu of Forward Underwritten Shares are referred to herein as the “Company Top-Up Underwritten Shares,” and the shares of Common Stock sold by the Company to the Underwriter pursuant to this Section 12(a) in lieu of Forward Option Shares are referred to herein as the “Company Top-Up Option Shares.” (b) Neither the Forward Purchaser nor the Forward Seller shall have any liability whatsoever for any Forward Shares underlying the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable, that the Forward Seller does not deliver and sell to the Underwriter or any other party if (i) all of the Conditions are not satisfied on or prior to the Initial Closing Date, in the case of Forward Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the related Option Closing Date, in the case of Forward Option Shares, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Forward Borrowed Underwritten Shares or the Forward Borrowed Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller would incur a Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) stock loan cost of more than a rate equal to 25 75 basis points per annum to do so, and then, in the case of (i), (ii) or (iii)each case, the Forward Seller electsCompany shall issue and sell to the Underwriters, pursuant to Section 2(c) 2 hereof, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Borrowed Underwritten Shares or 2(d) hereofBorrowed Option Shares, as the case may be, that the Forward Seller does not to so deliver and sell to the Underwriter Underwriters. In connection with any such issuance and sale by the Forward Company, the Company or the Representatives shall have the right to postpone the Closing Date or the relevant Additional Closing Date, as the case may be, for a period not exceeding three business days in order to effect any required changes in any documents or arrangements. The shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 8(a) in lieu of Borrowed Underwritten Shares or are referred to herein as the Forward “Company Top-Up Underwritten Shares,” and the shares of Common Stock sold by the Company to the Underwriters pursuant to this Section 8(a) in lieu of Borrowed Option Shares are referred to herein as the “Company Top-Up Option Shares, as applicable, (or a portion thereof) otherwise deliverable by the Forward Seller.”

Company Top-Up Shares. (a) If in respect of the any Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable (i) all the Conditions are not satisfied on or prior to the Initial Closing Date or, in respect of any Additional Forward Sale Agreement entered into pursuant to Section 2(b)(iii2(c)(iii) hereof, all the Additional Conditions are not satisfied on or prior to the related Option Closing Date, if any, as the case may be, and the Forward Seller affiliated with the Forward Purchaser party to such Forward Sale Agreement and/or Additional Forward Sale Agreement, as applicable, elects, pursuant to Section 2(c2(d) or 2(d2(e) hereof, as the case may be, not to deliver the Forward Underwritten Shares or the Forward Option Shares, as applicable, otherwise deliverable by such Forward Seller, (ii) in the such Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller it or its affiliate is unable to borrow and deliver for sale under this Underwriting Agreement the full number of shares of Common Stock equal to the number of the Forward Underwritten Shares or the Forward Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the its affiliated Forward Seller hereunder or (iii) in the such Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller its affiliate would incur a Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 200 basis points per annum to do so, then, in each case, the Company shall issue and sell to the UnderwriterUnderwriters, pursuant to Section 2(b)(ii2(c)(ii) or 2(b)(iv2(c)(iv) hereof, as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Forward Underwritten Shares or Forward Option Shares, as the case may be, that the such Forward Seller does not so deliver and sell to the UnderwriterUnderwriters. In connection with any such issuance and sale by the Company, the Company or the Underwriter Underwriters shall have the right to postpone the Initial Closing Date or the related Option Closing Date, as the case may be, for a period not exceeding two business days in order to effect any required changes in any documents or arrangements. The shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12 in lieu of Forward Underwritten Shares are referred to herein as the “Company Top-Up Underwritten Shares,” and the shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12(a) in lieu of Forward Option Shares are referred to herein as the “Company Top-Up Option Shares.” (b) Neither the No Forward Purchaser nor the or Forward Seller shall have any liability whatsoever for any Forward Shares underlying the its Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable, that the such Forward Seller does not deliver and sell to the Underwriter Underwriters or any other party if (i) all of the Conditions are not satisfied on or prior to the Initial Closing Date, in the case of Forward Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the related Option Closing Date, in the case of Forward Option Shares, (ii) in the such Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller it or its affiliate is unable to borrow and deliver for sale under this Underwriting Agreement a number of shares of Common Stock equal to the number of the Forward Underwritten Shares or the Forward Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the its affiliated Forward Seller hereunder or (iii) in the such Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller its affiliate would incur a Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 200 basis points per annum to do so, and in the case of (i), (ii) or (iii), the such Forward Seller elects, pursuant to Section 2(c2(d) or 2(d2(e) hereof, as the case may be, not to deliver and sell to the Underwriter Underwriters the Forward Underwritten Shares or the Forward Option Shares, as applicable, (or a portion thereof) otherwise deliverable by the such Forward Seller.

Company Top-Up Shares. In the event that (ai) If all of the conditions to effectiveness set forth in respect Section 3 of the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable (i) all the Conditions are not satisfied on or prior to the Initial Closing Date or, in respect of any Additional Forward Sale Agreement to be entered into pursuant to Section 2(b)(iii3(b)(i) hereof, all the Additional Option Conditions are not satisfied on or prior to the related Option relevant Additional Closing Date, if any, as the case may be, and the Forward Seller elects, pursuant to Section 2(c3(c) or 2(dSection 3(d) hereof, as the case may be, not to deliver and sell to the Forward Underwriters the Borrowed Underwritten Shares or the Forward Borrowed Option Shares, as applicable, otherwise deliverable by such Forward Seller, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement the full number of shares of Common Stock equal to the number all of the Forward Borrowed Underwritten Shares or the Forward Borrowed Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward PurchaserSeller’s good faith and commercially reasonable judgment, either it is impracticable to do so borrow and deliver for sale under this Agreement all of the Borrowed Underwritten Shares or Borrowed Option Shares, as applicable, or (iv) in the Forward Seller Seller’s commercially reasonable judgment, it would incur a Stock Loan Fee (as defined under the Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) stock loan cost in excess of more than a rate equal to 25 70 basis points per annum to do soborrow and deliver for sale under this Agreement all of the Borrowed Underwritten Shares or Borrowed Option Shares, as applicable, then, in each case, the Company shall issue and sell to the UnderwriterUnderwriters, pursuant to Section 2(b)(ii) or 2(b)(iv) 3 hereof, as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Forward Borrower Underwritten Shares or Forward Borrowed Option Shares, as the case may be, that the Forward Seller does not so deliver and sell to the UnderwriterUnderwriters. In connection with any such issuance and sale by the Company, the Company or the Underwriter Representatives shall have the right to postpone the Initial Closing Date or the related Option relevant Additional Closing Date, as the case may be, for a period not exceeding two one business days day in order to effect any required changes in any documents or arrangements. The shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12 10(a) in lieu of Forward Borrowed Underwritten Shares are referred to herein as the “Company Top-Up Underwritten Shares,” and the shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12(a10(a) in lieu of Forward Borrowed Option Shares are referred to herein as the “Company Top-Up Option Shares.” (b) Neither the Forward Purchaser nor the Forward Seller shall have any liability whatsoever for any Forward Shares underlying the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable, that the Forward Seller does not deliver and sell to the Underwriter or any other party if (i) all of the Conditions are not satisfied on or prior to the Initial Closing Date, in the case of Forward Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the related Option Closing Date, in the case of Forward Option Shares, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Forward Underwritten Shares or the Forward Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller would incur a Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 basis points per annum to do so, and in the case of (i), (ii) or (iii), the Forward Seller elects, pursuant to Section 2(c) or 2(d) hereof, as the case may be, not to deliver and sell to the Underwriter the Forward Underwritten Shares or the Forward Option Shares, as applicable, (or a portion thereof) otherwise deliverable by the Forward Seller.

Company Top-Up Shares. (a) If in respect of In the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable event that (i) all the Conditions are not satisfied on or prior to the Initial First Closing Date or, in respect of any Additional Forward Sale Agreement entered into pursuant to Section 2(b)(iii) hereof4(b)(i)(A), all the Additional Conditions are not satisfied on or prior to the related Option relevant Optional Closing Date, if any, as the case may be, and the a Forward Seller elects, pursuant to Section 2(c4(a)(ii) or 2(d) hereofSection 4(b)(ii), as the case may be, not to deliver the Forward Underwritten Borrowed Firm Shares or the Forward Option Shares, as applicable, otherwise Borrowed Optional Shares deliverable by such Forward Seller, as applicable, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgmentPurchaser (or its affiliated Forward Seller, the Forward Seller as applicable) is unable to borrow and deliver for sale under this Agreement the full a number of shares of Common Stock equal to the number of the Forward Underwritten Borrowed Firm Shares or the Forward Option Borrowed Optional Shares, as applicable, to be otherwise borrowed and delivered for sale sold by the Forward Seller it hereunder or (iii) in the a Forward Purchaser’s good faith and faith, commercially reasonable judgment, either it is impracticable to do so or the such Forward Seller Purchaser (or, if applicable, its affiliated Forward Seller) would incur a Stock Loan Fee (as defined under in the Forward Sale Agreement or Additional applicable Forward Sale Agreement, as applicable) of more than a rate equal to 25 basis points per annum to do soborrow and deliver for sale under this Agreement a number of shares of Stock equal to the number of the Borrowed Firm Shares or the Borrowed Optional Shares, as applicable, to be sold by it hereunder, then, in each case, the Company shall issue and sell to the UnderwriterUnderwriters, pursuant to Section 2(b)(ii) or 2(b)(iv) hereof, as the case may be4, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Forward Underwritten Borrowed Firm Shares or Forward Option Borrowed Optional Shares, as the case may be, that the such Forward Seller does not so deliver and sell to the UnderwriterUnderwriters. In connection with any such issuance and sale by the Company, the Company or Representatives, the Underwriter Forward Sellers and the Forward Purchasers shall have the right to postpone the Initial First Closing Date or the related Option relevant Optional Closing Date, as the case may be, for a period not exceeding two one business days day in order to effect any required changes in any documents or arrangements. The shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12 11(a) in lieu of Forward Underwritten Borrowed Firm Shares are referred to herein as the “Company Top-Up Underwritten Firm Shares,” and the shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12(a11(a) in lieu of Forward Option Borrowed Optional Shares are referred to herein as the “Company Top-Up Option Optional Shares,” and the Company Top-Up Firm Shares and the Company Top-Up Optional Shares are referred to herein collectively as the “Company Top-Up Shares.” (b) Neither the No Forward Seller or Forward Purchaser nor the Forward Seller shall have any liability whatsoever for any Forward Borrowed Shares underlying the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable, that the such Forward Seller does not deliver and sell to the Underwriter Underwriters or any other party if (i) all of the Conditions are not satisfied on or prior to the Initial Closing Date, in the case of Forward Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the related Option Closing Date, in the case of Forward Option Shares, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Forward Underwritten any Company Top-Up Firm Shares or the Forward Option Shares, as applicable, Company Top-Up Optional Shares are required to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller would incur lieu of such Borrowed Shares as a Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) result of more than a rate equal to 25 basis points per annum to do so, and in the case of (iSection 11(a), (ii) or (iii), the Forward Seller elects, pursuant to Section 2(c) or 2(d) hereof, as the case may be, not to deliver and sell to the Underwriter the Forward Underwritten Shares or the Forward Option Shares, as applicable, (or a portion thereof) otherwise deliverable by the Forward Seller.

Company Top-Up Shares. (a) If in respect of In the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable event that (i) all the Conditions are not satisfied on or prior to the Initial Closing Date or, in respect of any Additional Forward Sale Agreement entered into pursuant to Section 2(b)(iii) hereof2(b)(i), all the Additional Conditions are not satisfied on or prior to the related Option any Additional Closing Date, if any, as the case may be, and the a Forward Seller elects, pursuant to Section 2(c) or Section 2(d) hereof, as the case may be, not to deliver the Forward Borrowed Underwritten Shares or the Forward Borrowed Option Shares, as applicable, otherwise deliverable by such Forward SellerSeller hereunder, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the such Forward Seller is unable to borrow and deliver for sale under this Agreement the full a number of shares of Common Stock equal to the number of the Forward Underwritten Shares or the Forward number of Option SharesShares to be purchased by the Underwriters on the relevant Additional Closing Date, as applicable, to be otherwise borrowed and delivered for sale deliverable by the such Forward Seller hereunder or (iii) the related Forward Purchaser determines in the good faith, in such Forward Purchaser’s good faith and commercially reasonable judgment, either it is either impracticable to do so or the that such Forward Seller would incur a Stock Loan Fee (as defined under the Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 200 basis points per annum to do so, then, in each case, the Company shall issue and sell to the UnderwriterUnderwriters, pursuant to Section 2(b)(ii) or 2(b)(iv) 2 hereof, as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Forward Underwritten Shares or Forward Option Shares, as the case may be, deliverable by such Forward Seller hereunder that the such Forward Seller does not so deliver and sell to the UnderwriterUnderwriters. In connection with any such issuance and sale by the Company, the Company or the Underwriter Representatives shall have the right to postpone the Initial Closing Date or the related Option relevant Additional Closing Date, as the case may be, for a period not exceeding two one business days day in order to effect any required changes in any documents or arrangements. The shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12 10(a) in lieu of Forward any Borrowed Underwritten Shares are referred to herein as the “Company Top-Up Underwritten Shares,” and the shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12(a10(a) in lieu of Forward any Borrowed Option Shares are referred to herein as the “Company Top-Up Option Shares.” (b) Neither the Forward Purchaser nor the Forward Seller shall have any liability whatsoever for any Forward Shares underlying the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable, that the Forward Seller does not deliver and sell to the Underwriter or any other party if (i) all of the Conditions are not satisfied on or prior to the Initial Closing Date, in the case of Forward Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the related Option Closing Date, in the case of Forward Option Shares, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Forward Underwritten Shares or the Forward Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller would incur a Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 basis points per annum to do so, and in the case of (i), (ii) or (iii), the Forward Seller elects, pursuant to Section 2(c) or 2(d) hereof, as the case may be, not to deliver and sell to the Underwriter the Forward Underwritten Shares or the Forward Option Shares, as applicable, (or a portion thereof) otherwise deliverable by the Forward Seller.

Company Top-Up Shares. (a) If in respect of In the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable event that (i) all the Conditions are not satisfied on or prior to the Initial Closing Date or, in respect of any Additional Forward Sale Agreement entered into pursuant to Section 2(b)(iii) hereof2(b)(i), all the Additional Conditions are not satisfied on or prior to the related Option any Additional Closing Date, if any, as the case may be, and the Forward Seller elects, pursuant to Section 2(c) or Section 2(d) hereof, as the case may be, not to deliver the Forward total number of Borrowed Underwritten Shares or the Forward Borrowed Option Shares, as applicable, otherwise deliverable by such the Forward Seller, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller or an affiliate thereof is unable to borrow and deliver for sale under this Agreement the full a number of shares of Common Stock equal to the total number of the Forward Borrowed Underwritten Shares or the Forward Borrowed Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward Purchaser’s good faith and commercially reasonable judgment, either it is either impracticable to do so borrow and deliver for sale under this Agreement the total number of Borrowed Underwritten Shares or Borrowed Option Shares, as applicable, or the Forward Seller or its affiliate would incur a Stock Loan Fee (as defined under the Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 200 basis points per annum to do soborrow and deliver for sale under this Agreement the total number of Borrowed Underwritten Shares or Borrowed Option Shares, as applicable, then, in each case, the Company shall issue and sell to the UnderwriterUnderwriters on the Closing Date or the relevant Additional Closing Date, pursuant to Section 2(b)(ii) or 2(b)(iv) 2 hereof, as the case may be, in whole but not in part, an aggregate number of shares of Common Stock equal to the number of Forward Borrowed Underwritten Shares or Forward Borrowed Option Shares, as the case may be, that the Forward Seller does not so deliver and sell to the UnderwriterUnderwriters. In connection with any such issuance and sale by the Company, the Company or the Underwriter Representatives shall have the right to postpone the Initial Closing Date or the related Option relevant Additional Closing Date, as the case may be, for a period not exceeding two one business days in order to effect any required changes in any documents or arrangements. The shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12 9(a) in lieu of Forward any Borrowed Underwritten Shares are referred to herein as the “Company Top-Up Underwritten Shares,” and the shares of Common Stock sold by the Company to the Underwriter Underwriters pursuant to this Section 12(a9(a) in lieu of Forward any Borrowed Option Shares are referred to herein as the “Company Top-Up Option Shares.” (b) Neither the Forward Purchaser nor the Forward Seller shall have any liability whatsoever for any Forward Shares underlying the Forward Sale Agreement and/or any Additional Forward Sale Agreement, as applicable, that the Forward Seller does not deliver and sell to the Underwriter or any other party if (i) all of the Conditions are not satisfied on or prior to the Initial Closing Date, in the case of Forward Underwritten Shares, or all of the Additional Conditions are not satisfied on or prior to the related Option Closing Date, in the case of Forward Option Shares, (ii) in the Forward Purchaser’s good faith and commercially reasonable judgment, the Forward Seller is unable to borrow and deliver for sale under this Agreement a number of shares of Common Stock equal to the number of the Forward Underwritten Shares or the Forward Option Shares, as applicable, to be otherwise borrowed and delivered for sale by the Forward Seller hereunder or (iii) in the Forward Purchaser’s good faith and commercially reasonable judgment, either it is impracticable to do so or the Forward Seller would incur a Stock Loan Fee (as defined under the relevant Forward Sale Agreement or Additional Forward Sale Agreement, as applicable) of more than a rate equal to 25 basis points per annum to do so, and in the case of (i), (ii) or (iii), the Forward Seller elects, pursuant to Section 2(c) or 2(d) hereof, as the case may be, not to deliver and sell to the Underwriter the Forward Underwritten Shares or the Forward Option Shares, as applicable, (or a portion thereof) otherwise deliverable by the Forward Seller.