Common use of Exercise of Top-Up Option Clause in Contracts

Exercise of Top-Up Option. Without the prior written consent of the Company, the Top-Up Option may be exercised by Merger Sub, in whole and not in part, only once, at any time following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by Section 1.1(d), after the expiration of such subsequent offering period); provided that, notwithstanding anything in this Agreement to the contrary, the Top-Up Option shall not be exercisable to the extent: (i) the number of Top-Up Option Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued shares of Company Common Stock, (ii) any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Authority shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority in connection with such exercise or the delivery of the Top-Up Option Shares in respect of such exercise, if such action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, or (iii) the conditions set forth in Section 7.1(c) and Section 7.1(d) are not satisfied as of the time of the issuance of the Top-Up Option Shares. The aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub pursuant to the Top-Up Option shall be determined by multiplying the number of such Top-Up Option Shares then-subject to the Top-Up Option by the Offer Price. Such purchase price shall be paid by Parent or Merger Sub, by paying in cash an amount equal to the aggregate par value of the Top-Up Option Shares and by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such purchase price. The Promissory Note (A) shall be due on the first (1st) anniversary of the Top-Up Closing, (B) shall bear simple interest of 5% per annum, (C) shall be full recourse to Parent and Merger Sub, (D) may be prepaid, in whole or in part, at any time without premium or penalty, and (D) shall have no other material terms. Notwithstanding the foregoing, Merger Sub may elect to pay (or cause to be paid) all or a portion of the aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub in cash.

Exercise of Top-Up Option. Without Upon the prior written consent exercise of the Company, the Top-Up Option may be exercised by Merger Sub, in whole and not in part, only once, at any time following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by accordance with Section 1.1(d1.4(a), after the expiration Parent shall so notify the Company and shall set forth in such notice (i) the number of such subsequent offering period); provided thatShares that are expected to be owned by the Parent, notwithstanding anything in this Agreement to the contrary, Purchaser or any wholly owned Subsidiary of the Parent or the Purchaser immediately preceding the purchase of the Top-Up Option Shares and (ii) a place and time for the closing of the purchase of the Top-Up Option Shares (which, subject to applicable Law and any required regulatory approvals, shall be effected as promptly as practicable and not be exercisable more than two (2) Business Days after date such notice is delivered to the extent: (i) Company). Such notice shall also include an undertaking signed by the Parent and the Purchaser that, as promptly as practicable following such exercise of the Top-Up Option, the Purchaser shall, and the Parent shall cause the Purchaser to, as promptly as practicable after such exercise and the delivery by the Company of the Top-Up Option Shares, consummate the Merger in accordance with the terms hereof. The Company shall, as soon as practicable following receipt of such notice, notify the Parent and the Purchaser of the number of Shares then outstanding and the number of Top-Up Option Shares issuable upon exercise Shares. At the closing of the purchase of the Top-Up Option would exceed Shares, the number of authorized but unissued shares of Company Common Stock, (ii) any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Authority shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority in connection with such exercise Parent or the delivery of Purchaser, as the case may be, shall pay the Company the aggregate price required to be paid for the Top-Up Option Shares in respect of such exerciseShares, if such actionand the Company shall cause to be issued to the Parent or the Purchaser, consentas applicable, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, or (iii) the conditions set forth in Section 7.1(c) and Section 7.1(d) are not satisfied as of the time of the issuance of a certificate representing the Top-Up Option Shares. The aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub pursuant to the Top-Up Option shall be determined by multiplying the number of such Top-Up Option Shares then-subject to the Top-Up Option by the Offer Price. Such purchase price shall may be paid by the Parent or Merger Sub, by paying the Purchaser (i) in cash an amount equal to the aggregate par value of the Top-Up Option Shares and or (ii) by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such purchase price. The Promissory Note (A) shall be due on the first (1st) anniversary of the Top-Up Closing, (B) shall bear simple interest of 5% per annum, (C) shall be full recourse to Parent and Merger Sub, (D) may be prepaid, in whole or in part, at any time without premium or penalty, and (D) shall have no other material terms. Notwithstanding the foregoing, Merger Sub may elect to pay (or cause to be paid) all or a portion of the aggregate purchase price payable for the Top-Up Option Shares, or some combination thereof. Any such promissory note shall be on terms as provided by the Parent or the Purchaser, which terms shall be reasonably satisfactory to the Company. Upon the delivery of the appropriate exercise notice and the tender of the consideration described above, the Purchaser shall, to the extent permitted by applicable Law, be deemed to be the holder of record of the Top-Up Option Shares being purchased by Merger Sub in cashissuable upon that exercise, notwithstanding that certificates representing those Top-Up Option Shares shall not then be actually delivered to the Purchaser or the Company shall have failed to refused to designate the account described above.

Exercise of Top-Up Option. Without Upon the prior written consent of the Company, the Top-Up Option may be exercised by Merger Sub, in whole and not in part, only once, at any time following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by Section 1.1(d), after the expiration of such subsequent offering period); provided that, notwithstanding anything in this Agreement to the contrary, the Top-Up Option shall not be exercisable to the extent: (i) the number of Top-Up Option Shares issuable upon exercise of the Top-Up Option would exceed in accordance with Section 2.03(a), Purchaser shall so notify the Company and shall set forth in such notice (1) the number of authorized but unissued shares of Company Common StockShares expected to be owned, (ii) any provision of applicable Law directly or any judgmentindirectly, injunction, order by Parent or decree of any Governmental Authority shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority in connection with such exercise or Purchaser immediately preceding the delivery purchase of the Top-Up Option Shares in respect of such exercise, if such action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, or (iii2) a place and time for the conditions set forth in Section 7.1(c) and Section 7.1(d) are not satisfied as closing of the time purchase of the Top-Up Option Shares and (3) Purchaser’s agreement to (and Parent’s agreement to cause Purchaser to) consummate the Merger in accordance with the NJBCA as contemplated by this Agreement as promptly as practicable following issuance of the Top-Up Option Shares. The Company shall, as soon as practicable following receipt of such notice, notify Purchaser of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Option Shares, Purchaser shall pay the Company the aggregate purchase price payable required to be paid for the Top-Up Option Shares being purchased by Merger Sub pursuant to this Section 2.03, and the Company shall cause to be issued to Purchaser a Certificate representing the Top-Up Option shall be determined Shares, which may include any legends required by multiplying applicable securities Laws, or, if the Company does not then have certificated shares, the applicable number of such Topuncertificated shares represented by book-Up Option Shares then-subject to the Top-Up Option by the Offer Priceentry. Such purchase price shall be paid by Parent or Merger SubAt its election, by paying in cash an amount equal to the aggregate par value of the Top-Up Option Shares and by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such purchase price. The Promissory Note (A) shall be due on the first (1st) anniversary of the Top-Up Closing, (B) shall bear simple interest of 5% per annum, (C) shall be full recourse to Parent and Merger Sub, (D) Purchaser may be prepaid, in whole or in part, at any time without premium or penalty, and (D) shall have no other material terms. Notwithstanding the foregoing, Merger Sub may elect to pay (or cause to be paid) all or a portion of the aggregate purchase price payable for the Top-Up Option Shares being purchased either (A) in cash by Merger Sub wire transfer of immediately available funds to an account designated by the Company or (B) by executing and delivering to the Company a promissory note in cashform and substance reasonably satisfactory to the Company having a principal amount equal to the balance of the aggregate purchase price for the Top-Up Option Shares and a per annum interest rate of one hundred thirty percent (130%) of the short-term AFR applicable to notes issued on the date that such promissory note is issued, which promissory note shall be payable in full with accrued interest on the third (3rd) anniversary of the date such promissory note is issued and shall be full recourse against NDI and Purchaser, but shall not be recourse to any extent to Parent (the “Top-Up Option Note”). The Parties shall cooperate to ensure that any issuance of Top-Up Option Shares is accomplished consistent with all applicable Laws.

Exercise of Top-Up Option. Without the prior written consent of the Company, the The Top-Up Option may be exercised by Merger SubPurchaser, in whole and not in part, only once, at any time during the ten (10) Business Day period next following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by Section 1.1(d), after the expiration of such subsequent offering period); provided thatprovided, that notwithstanding anything in this Agreement to the contrary, contrary the Top-Up Option shall not be exercisable to the extent: extent (i) the number of Top-Up Option Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued shares of Company Common Stock, (ii) any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Authority shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority in connection with such exercise or the delivery of the Top-Up Option Shares in respect of such exercise, if such action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, made or (iii) the conditions set forth in Section 7.1(c6.1(c) and Section 7.1(d6.1(d) are not satisfied as of the time of the issuance of the Top-Up Option Shares. The aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub Purchaser pursuant to the Top-Up Option shall be determined by multiplying the number of such Top-Up Option Shares then-subject to the Top-Up Option by the Offer Price. Such purchase price shall be paid by Parent or Merger SubPurchaser, at Parent’s or Purchaser’s election, by either (1) paying in cash an amount equal to the aggregate par value of the Top-Up Option Shares which shall be allocated to the Company’s stated (or “paid-in”) capital account and by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such purchase price which balance shall be allocated to the Company’s “additional capital” account or (2) executing and delivering a Promissory Note for the full purchase price. The Promissory Note (A) shall be due on the first (1st) anniversary of the Top-Up Closing, (B) shall bear simple interest of 5% per annum, (C) shall be full recourse to Parent and Merger SubPurchaser, (D) may be prepaid, in whole or in part, at any time without premium or penalty, and (DE) shall have no other material terms. Notwithstanding the foregoing, Merger Sub Purchaser may elect to pay (or cause to be paid) all or a portion of the aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub Purchaser in cashcash and in connection therewith, the Company shall apply such cash proceeds (without the deduction of any other fee or expense) toward an Optional Redemption of the 12% Notes in the manner directed by Parent.

Exercise of Top-Up Option. Without Upon the prior written consent exercise of the Company, the Top-Up Option may be exercised by Merger Sub, in whole and not in part, only once, at any time following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by accordance with Section 1.1(d2.4(a), after Parent shall so notify the expiration Company and shall set forth in such notice (i) the number of such subsequent offering period); provided thatShares that are expected to be owned by Parent, notwithstanding anything in this Agreement to Merger Sub or any wholly owned Subsidiary of Parent or Merger Sub immediately preceding the contrary, purchase of the Top-Up Option shall not be exercisable to Shares and (ii) a place and time for the extent: (i) closing of the purchase of the Top-Up Option Shares. The Company shall, as soon as practicable following receipt of such notice, notify Parent and Merger Sub of the number of Shares then outstanding and the number of Top-Up Option Shares issuable upon exercise Shares. At the closing of the purchase of the Top-Up Option would exceed Shares, Parent or Merger Sub, as the number of authorized but unissued shares of case may be, shall pay the Company Common Stock, (ii) any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Authority shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority in connection with such exercise or the delivery of aggregate price required to be paid for the Top-Up Option Shares in respect of such exerciseShares, if such actionand the Company shall cause to be issued to Parent or Merger Sub, consentas applicable, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, or (iii) the conditions set forth in Section 7.1(c) and Section 7.1(d) are not satisfied as of the time of the issuance of a certificate representing the Top-Up Option Shares. The aggregate purchase price payable for the Top-Up Option Shares being purchased may be paid by Merger Sub pursuant to the Top-Up Option shall be determined by multiplying the number of such Top-Up Option Shares then-subject to the Top-Up Option by the Offer Price. Such purchase price shall be paid by or Parent or Merger Sub, by paying in cash an amount equal to the aggregate par value of the Top-Up Option Shares and or by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such purchase price. The Promissory Note (A) shall be due on the first (1st) anniversary of the Top-Up Closing, (B) shall bear simple interest of 5% per annum, (C) shall be full recourse to Parent and Merger Sub, (D) may be prepaid, in whole or in part, at any time without premium or penalty, and (D) shall have no other material terms. Notwithstanding the foregoing, Merger Sub may elect to pay (or cause to be paid) all or a portion of the aggregate purchase price payable for the Top-Up Option Shares being purchased by Shares, or some combination thereof. Any such promissory note shall bear interest at a rate of interest per annum equal to 3%, shall mature on the first anniversary of the date of execution and delivery of such promissory note and may be prepaid without premium or penalty. In the event that Merger Sub becomes the owner of 90.0005% or more of the outstanding shares of Common Stock, Parent shall promptly cause Merger Sub to consummate the Merger in cashaccordance with Section 253 of the DGCL.

Exercise of Top-Up Option. Without The Top-Up Option shall only be exercisable once in whole but not in part and only upon the prior written consent terms and conditions set forth in this Section 1.3(b). The parties hereto shall cooperate to ensure that the issuance and delivery of the Company, the Top-Up Option may be exercised by Merger SubShares complies with all applicable Laws, in whole and not in part, only once, at any time following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by Section 1.1(d), after the expiration including compliance with an applicable exemption from registration of such subsequent offering period); provided that, notwithstanding anything in this Agreement to the contrary, the Top-Up Option Shares under the Securities Act of 1933 (as amended, including the rules and regulations promulgated thereunder, the “Securities Act”). If the Offer Conditions have been satisfied or waived and there shall have not be exercisable been validly tendered and not validly withdrawn that number of shares of Company Common Stock which, when added to the extent: shares of Company Common Stock owned by Parent and Merger Sub, would represent at least ninety percent (i90%) of the shares of Company Common Stock outstanding on the Offer Closing Date, Merger Sub shall be deemed to have exercised the Top-Up Option on the Offer Closing Date and on such date shall give the Company written notice (the “Top-Up Exercise Notice”) specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its subsidiaries at the time of such notice (after giving effect to the Offer Closing). Such notice will also include an undertaking signed by Merger Sub and Parent that, immediately following the closing of the purchase of the Top-Up Option Shares (the “Top-Up Closing”), Merger Sub will, and Parent will cause Merger Sub to, consummate the Merger in accordance with Section 1.4, Section 1.5, Section 1.6 and the last sentence of Section 5.3. The Company shall, as soon as practicable following receipt of the Top-Up Exercise Notice on the Offer Closing Date, deliver on the Offer Closing Date (and in any event no later than the Offer Closing) written notice (the “Top-Up Notice”) to Merger Sub specifying, based on the information provided by Merger Sub in its notice, the number of Top-Up Option Shares issuable upon exercise of the Top-Up Option would exceed to be issued to Merger Sub. If the number of authorized but unissued shares of Company Common Stock, (ii) any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Authority shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority in connection with such exercise or the delivery of the Top-Up Option Shares specified in respect the Top-Up Notice is different than the number of such exerciseTop-Up Option Shares specified in the Top-Up Exercise Notice, if such actionthe Company and Merger Sub shall, consentas promptly as practicable and in any event on the Offer Closing Date, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, or (iii) reasonably agree on the conditions set forth in Section 7.1(c) and Section 7.1(d) are not satisfied as appropriate number of the time of the issuance of the Top-Up Option Shares. The aggregate purchase price payable for At the Top-Up Option Shares being purchased Closing, which shall take place simultaneously with the Offer Closing at the location specified in Section 1.5, the purchase price owed by Merger Sub pursuant to the Top-Up Option shall be determined by multiplying the number of such Top-Up Option Shares then-subject to the Top-Up Option by the Offer Price. Such purchase price Company therefor shall be paid by Parent or to the Company, at Merger Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (y) paying in cash cash, by wire transfer of same-day funds, an amount equal to or greater than the aggregate par value of the Top-Up Option Shares and by (z) executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such aggregate purchase priceprice pursuant to the Top-Up Option less the amount paid in cash pursuant to the preceding clause (y) (the “Promissory Note”). The Promissory Note (Ai) shall be due on the first (1st) anniversary of the Top-Up Closing, (Bii) shall bear simple interest of five percent (5% %) per annum, (Ciii) shall be full recourse to Parent and Merger Sub, (Div) may be prepaid, in whole or in part, at any time without premium or penalty, penalty and (Dv) shall have no other material terms. Notwithstanding At the foregoingTop-Up Closing, Merger Sub may elect to pay (or the Company shall cause to be paid) all or issued to Merger Sub a portion of the aggregate purchase price payable for certificate representing the Top-Up Option Shares being purchased by Merger Sub in cashShares.

Exercise of Top-Up Option. Without Upon the prior written consent of the Company, the Top-Up Option may be exercised by Merger Sub, in whole and not in part, only once, at any time following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by Section 1.1(d), after the expiration of such subsequent offering period); provided that, notwithstanding anything in this Agreement to the contrary, the Top-Up Option shall not be exercisable to the extent: (i) the number of Top-Up Option Shares issuable upon exercise of the Top-Up Option would exceed in accordance with Section 1.3(a), Merger Sub shall so notify the Company and shall set forth in such notice (i) the number of authorized but unissued shares of Company Common StockStock expected to be owned, (ii) any provision of applicable Law directly or any judgmentindirectly, injunction, order by Parent or decree of any Governmental Authority shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority in connection with such exercise or Merger Sub immediately preceding the delivery purchase of the Top-Up Option Shares in respect and (ii) a place and time selected by Merger Sub for the closing of the purchase of the Top-Up Option Shares with the time for the closing being not more than five Business Days after the exercise of the Top-Up Option. The Company shall, as soon as practicable following receipt of such exercisenotice, if such action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, or notify Merger Sub of the sum of (iii1) the conditions set forth in Section 7.1(cnumber of shares of Common Stock then outstanding and (2) and Section 7.1(d) the total number of shares of Common Stock that are not satisfied as issuable within ten Business Days after the scheduled closing of the time purchase of the issuance Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof. At the closing of the purchase of the Top-Up Option Shares, Merger Sub shall pay the Company the aggregate purchase price payable for the Top-Up Option Shares pursuant to this Section 1.3, and the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Option Shares. The aggregate purchase price payable for the Top-Up Option Shares being purchased by may be paid either (i) entirely in cash or (ii) at the election of Merger Sub pursuant to the Top-Up Option shall be determined by multiplying the number of such Top-Up Option Shares then-subject to the Top-Up Option by the Offer Price. Such purchase price shall be paid by Parent or Merger SubParent, by paying in cash an amount equal to not less than the aggregate par value of the Top-Up Option Shares and by Merger Sub executing and delivering to the Company a an unsecured promissory note (the “Promissory Note”) having a principal amount equal to the balance of such the aggregate purchase price. The Promissory Note (A) shall be due on the first (1st) anniversary of price for the Top-Up Closing, (B) Option Shares. Any such promissory note shall bear simple interest at the rate of 5% per annuminterest that would be payable by Parent under its commercial paper program for a similar term of borrowing as of the date of the promissory note, (C) shall be full recourse to Parent mature on the first anniversary of the date of execution and Merger Sub, (D) delivery of such promissory note and may be prepaidprepaid at any time and from time to time, in whole or in part, at any time without premium or penalty, and (D) shall have no other material terms. Notwithstanding the foregoing, Merger Sub may elect to pay (or cause to be paid) all or a portion of the aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub in cash.

Exercise of Top-Up Option. Without Upon the prior written consent exercise of the Company, the Top-Up Option may be exercised by Merger Sub, in whole and not in part, only once, at any time following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by accordance with Section 1.1(d2.03(a), after Purchaser shall so notify the expiration Company and shall set forth in such notice (1) the number of such subsequent offering period); provided thatShares expected to be owned, notwithstanding anything in this Agreement to directly or indirectly, by Parent or Purchaser immediately preceding the contrary, purchase of the Top-Up Option shall not be exercisable to the extent: Shares, (i2) the number of Top-Up Option Shares issuable upon exercise Shares, (3) a place and time for the closing of the Top-Up Option would exceed the number of authorized but unissued shares of Company Common Stock, (ii) any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Authority shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority in connection with such exercise or the delivery purchase of the Top-Up Option Shares and (4) Purchaser’s agreement to (and Parent’s agreement to cause Purchaser to) consummate the Merger in respect of such exercise, if such action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, or (iii) accordance with the conditions set forth in Section 7.1(c) and Section 7.1(d) are not satisfied DGCL as of the time of the contemplated by this Agreement as promptly as practicable following issuance of the Top-Up Option Shares. The At the closing of the purchase of the Top-Up Option Shares, which the parties hereby agree will occur on the same day such notice is delivered by Purchaser to the Company, Purchaser shall pay the Company the aggregate purchase price payable required to be paid for the Top-Up Option Shares being purchased by Merger Sub pursuant to this Section 2.03, and the Company shall cause to be issued to Purchaser a certificate representing the Top-Up Option shall be determined Shares, which may include any legends required by multiplying applicable securities laws, or, if the Company does not then have certificated shares, the applicable number of such Topuncertificated shares represented by book-Up Option Shares then-subject to the Top-Up Option by the Offer Priceentry. Such purchase price shall be paid by Parent or Merger SubAt its election, by paying in cash an amount equal to the aggregate par value of the Top-Up Option Shares and by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such purchase price. The Promissory Note (A) shall be due on the first (1st) anniversary of the Top-Up Closing, (B) shall bear simple interest of 5% per annum, (C) shall be full recourse to Parent and Merger Sub, (D) Purchaser may be prepaid, in whole or in part, at any time without premium or penalty, and (D) shall have no other material terms. Notwithstanding the foregoing, Merger Sub may elect to pay (or cause to be paid) all or a portion of the aggregate purchase price payable for the Top-Up Option Shares being purchased either (A) in cash by Merger Sub wire transfer of immediately available funds to an account designated by the Company, (B) by executing and delivering to the Company a promissory note in cashform and substance reasonably satisfactory to the Company having a principal amount equal to the balance of the aggregate purchase price for the Top-Up Option Shares and an interest rate of three percent (3%) per annum, which promissory note shall be payable in full with accrued interest immediately at the Effective Time or (C) by a combination of the methods set forth in the preceding clauses (A) and (B); provided that payment of the par value of any Top-Up Option Shares must be in cash in accordance with the preceding clause (A). The Parties shall cooperate to ensure that any issuance of Top-Up Option Shares is accomplished consistent with all applicable laws.

Exercise of Top-Up Option. Without the prior written consent of the Company, the Top-Up Option may be exercised by Merger Sub, in whole and not in part, only once, at any time following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by Section 1.1(d), after the expiration of such subsequent offering period)thereafter; provided that, notwithstanding anything in this Agreement to the contrary, the Top-Up Option shall not be exercisable to the extent: (i) the number of Top-Up Option Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued shares of Company Common StockStock (giving effect to the Company Common Stock issuable pursuant to all then-outstanding Company Stock Options, under the Company ESPP and any other rights to acquire Company Common Stock as if such shares were outstanding), (ii) any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Authority Entity shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority Entity in connection with such exercise or the delivery of the Top-Up Option Shares in respect of such exercise, if such action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, or (iii) the conditions set forth in Section 7.1(c) and Section 7.1(d7.01(d) are not satisfied as of the time of the issuance of the Top-Up Option Shares. The aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub pursuant to the Top-Up Option shall be determined by multiplying the number of such Top-Up Option Shares then-subject to the Top-Up Option by the Offer Price. Such purchase price shall be paid by Parent or Merger Sub, by paying in cash an amount equal to the aggregate par value of the Top-Up Option Shares and by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such purchase price. The Promissory Note (A) shall be due on the first (1st) anniversary of the Top-Up Closing, (B) shall bear simple interest of 5% per annum, (C) shall be full recourse to Parent and Merger Sub, (D) may be prepaid, in whole or in part, at any time without premium or penalty, and (DE) shall have no other material terms. Notwithstanding the foregoing, Merger Sub may elect to pay (or cause to be paid) all or a portion of the aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub in cash.

Exercise of Top-Up Option. Without Upon the prior written consent exercise of the Company, the Top-Up Option may be exercised by Merger Sub, in whole and not in part, only once, at any time following the Offer Closing until the tenth (10th) Business Day thereafter (and if there shall have been commenced a subsequent offering period as contemplated by accordance with Section 1.1(d1.4(a), after the expiration Parent shall so notify the Company and shall set forth in such notice (i) the number of such subsequent offering period); provided thatShares that are expected to be owned by the Parent, notwithstanding anything in this Agreement to the contrary, Purchaser or any wholly owned Subsidiary of the Parent or the Purchaser immediately preceding the purchase of the Top-Up Option Shares and (ii) a place and time for closing of the purchase of the Top-Up Option Shares (which, subject to applicable Law and any required regulatory approvals, shall be effected as promptly as practicable and not be exercisable more than two (2) Business Days after date such notice is delivered to the extent: (i) Company). Such notice shall also include an undertaking signed by the Parent and the Purchaser that, as promptly as practicable after such exercise and the delivery by the Company of the Top-Up Option Shares, to consummate the Merger in accordance with the terms hereof. The Company shall, as soon as practicable following receipt of such notice, notify the Parent and the Purchaser of the number of Shares then outstanding and the number of Top-Up Option Shares issuable upon exercise Shares. At the closing of the purchase of the Top-Up Option would exceed Shares, the number of authorized but unissued shares of Company Common Stock, (ii) any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Authority shall prohibit such exercise, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Authority in connection with such exercise Parent or the delivery of Purchaser, as the case may be, shall pay the Company the aggregate price required to be paid for the Top-Up Option Shares in respect of such exerciseShares, if such actionand the Company shall cause to be issued to the Parent or the Purchaser, consentas applicable, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, or (iii) the conditions set forth in Section 7.1(c) and Section 7.1(d) are not satisfied as of the time of the issuance of a certificate representing the Top-Up Option Shares. The aggregate purchase price payable for the Top-Up Option Shares being purchased by Merger Sub pursuant to the Top-Up Option shall be determined by multiplying the number of such Top-Up Option Shares then-subject to the Top-Up Option by the Offer Price. Such purchase price shall be paid by the Parent or Merger Sub, by paying in cash an amount the Purchaser as follows: (i) the portion of the aggregate purchase price equal to the aggregate par value of the Top-Up Option Shares shall be paid in cash, and (ii) the balance of the remaining aggregate purchase price may be paid (x) in cash or (y) by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such purchase price. The Promissory Note (A) shall be due on the first (1st) anniversary of the Top-Up Closing, (B) shall bear simple interest of 5% per annum, (C) shall be full recourse to Parent and Merger Sub, (D) may be prepaid, in whole or in part, at any time without premium or penalty, and (D) shall have no other material terms. Notwithstanding the foregoing, Merger Sub may elect to pay (or cause to be paid) all or a portion of the aggregate purchase price payable for the Top-Up Option Shares, or some combination thereof. Any such promissory note shall be on terms as provided by the Parent or the Purchaser, which terms shall include the following: (i) the principal amount and accrued interest under the promissory note shall be payable upon the demand of the Company, (ii) the unpaid principal amount of the promissory note will accrue simple interest at the per annum of 1.0%, (iii) the promissory note may be prepaid in whole or in part at any time, without penalty or prior notice and (iv) the unpaid principal amount and accrued interest under the promissory note shall be immediately become due and payable in the event that (x) Purchaser fails to make any payment of interest on the promissory note as provided therein and such failure continues for a period of 30 days or (y) Purchaser files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors. Upon the delivery of the appropriate exercise notice and the tender of the consideration described above, the Purchaser shall, to the extent permitted by applicable Law, be deemed to be the holder of record of the Top-Up Option Shares being purchased by Merger Sub in cashissuable upon that exercise, notwithstanding that certificates representing those Top-Up Option Shares shall not then be actually delivered to the Purchaser or the Company shall have failed to refused to designate the account described above.