Common use of Exercise of Top-Up; Top-Up Closing Clause in Contracts

Exercise of Top-Up; Top-Up Closing. If there shall have not been validly tendered in the Offer, and not validly withdrawn, that number of shares of Company Common Stock (provided that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub would represent at least one share more than 90% of: (i) the outstanding shares of Company Common Stock as of the expiration of the Offer plus (ii) without duplication of clause (i), the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up (the “Short-Form Threshold”), Merger Sub shall be deemed to have exercised the Top-Up for such number of Top-Up Shares as is necessary for Merger Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub at the time of such notice (assuming that the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery procedures). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer Closing), deliver written notice to Merger Sub specifying, based on the information provided by Merger Sub in its notice, the number of Top-Up Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Merger Closing specified in Section 2.02, and shall take place simultaneously with the Offer Closing, the purchase price owed by Merger Sub to the Company to purchase the Top-Up Shares shall be paid to the Company, at Merger Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 3% per annum, (iii) shall be full recourse to Parent and Merger Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares.

Exercise of Top-Up; Top-Up Closing. If there shall have not been validly tendered in the Offer, and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub its Affiliates, would represent at least one share more than 90% of: (i) of the outstanding shares of the Company Common Stock as of the expiration of outstanding on the Offer plus (ii) without duplication of clause (i)Closing Date, the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up (the “Short-Form Threshold”), Merger Sub shall be deemed to have exercised the Top-Up for such number of Top-Up Shares as is necessary for Merger Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Subsidiaries at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer Closing), deliver written notice to Merger Sub specifying, based on the information provided by Merger Sub in its notice, the number of Top-Up Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up ClosingUpClosing”), which shall take place at the location of the Merger Closing specified in Section 2.02, and shall take place simultaneously with the Offer Closing, the purchase price owed by Merger Sub to the Company to purchase the ToptheTop-Up Shares shall be paid to the Company, at Merger Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 35% per annum, (iii) shall be full recourse to Parent and Merger Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares.. […]

Exercise of Top-Up; Top-Up Closing. If there shall have not been validly tendered in the Offer, and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) whichthat, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub its Affiliates (after giving effect to the Offer Closing), would represent at least one share more than 90% of: (i) the outstanding shares of Company Common Stock as of the expiration of Fully Diluted Shares on the Offer plus (ii) without duplication of clause (i)Closing Date, the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up (the “Short-Form Threshold”), Merger Sub shall be deemed to have exercised the Top-Up for such number of Top-Up Shares as is necessary for Merger Sub to reach the Short-Form Threshold and on such date the Offer Closing Date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Affiliates at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer Closing), deliver written notice to Merger Sub specifying, based on the information provided by Merger Sub in its notice, the number of Top-Up SharesShares and the consideration due therefor, in each case calculated in accordance with Section 1.03(a). At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Merger Closing specified in Section 2.02, and shall take place simultaneously with the Offer Closing, the purchase price owed by Merger Sub to the Company to purchase the Top-Up Shares shall be paid to the Company, at Merger Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (iA) shall be due on the first anniversary of the Top-Up Closing, (iiB) shall bear simple interest of 3% per annum, (iiiC) shall be full recourse to Parent and Merger Sub, (ivD) may be prepaid, in whole or in part, at any time without premium or penalty, and (vE) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares. The Company Board has determined that the consideration for the Top-Up Shares due under this Section 1.03 is adequate in accordance with the MBCA and otherwise taken all steps necessary such that upon issuance and delivery in accordance with this Section 1.03(b), the Top-Up Shares shall be validly issued, fully paid and non-assessable.

Exercise of Top-Up; Top-Up Closing. If Subject to the limitations set forth in Section 2.3(a) and the satisfaction of the conditions to the Merger, including Section 9.1(b), if there shall not have not been validly tendered in the Offer, Offer and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub its Subsidiaries, would represent at least one share more than 90% of: (i) of the outstanding shares of the Company Common Stock as of the expiration of outstanding on the Offer plus (ii) without duplication of clause (i), the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up Closing Date (the “"Short-Form Threshold”"), Merger Acquisition Sub shall be deemed to have exercised the Top-Up for such number of Top-Up Shares as is necessary for Merger Acquisition Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Subsidiaries at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer ClosingClosing Date), deliver written notice to Merger Acquisition Sub specifying, based on the information provided by Merger Acquisition Sub in its notice, the number of Top-Up SharesShares to be purchased. At the closing of the purchase of the Top-Up Shares (the “"Top-Up Closing”"), which shall take place at the location of the Merger Closing specified in Section 2.02, 3.2 and shall take place simultaneously with with, or as soon as reasonably practicable after, the Offer Closing, the purchase price owed by Merger Acquisition Sub to the Company to purchase the Top-Up Shares shall be paid to the Company, at Merger Acquisition Sub’s 's option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “"Promissory Note”"). The Promissory Note (i) shall be unsecured, non-transferable and due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 35% per annumannum (payable on maturity), (iii) shall be full recourse to Parent and Merger Acquisition Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate Certificate representing the Top-Up SharesShares to be issued and delivered to Acquisition Sub, which Certificate shall include any legends that are required under applicable Law.

Exercise of Top-Up; Top-Up Closing. If there shall have not been validly tendered in the Offer, Offer and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to (x) the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub would represent at least one share more than 90% of: its Affiliates and (iy) the outstanding shares of Company Restricted Stock and shares of Company Common Stock as underlying Company Stock Options that are immediately available to be acquired by Sub pursuant to the Support Agreements immediately following the Acceptance Time, would represent at least 90% of the expiration shares of the Offer plus (ii) without duplication of clause (i), the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of on the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up Closing Date (the “Short-Form Threshold”), Merger Sub shall be deemed to have exercised the Top-Up for such number of Top-Up Shares as is necessary for Merger Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Subsidiaries at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer Closing), deliver written notice to Merger Sub specifying, based on the information provided by Merger Sub in its notice, the number of Top-Up Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Merger Closing specified in Section 2.02, and shall take place simultaneously with with, or as soon as reasonably practicable after, the Offer Closing, the purchase price owed by Merger Sub to the Company to purchase the Top-Up Shares shall be paid to the Company, at Merger Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 35% per annum, (iii) shall be full recourse to Parent and Merger Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares.

Exercise of Top-Up; Top-Up Closing. If Subject to the limitations set forth in Section 2.3(a) and the satisfaction of the conditions to the Merger, including Section 9.1(b), if there shall have not been validly tendered in the Offer, Offer and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub its Subsidiaries, would represent at least one share more than 90% of: (i) of the outstanding shares of the Company Common Stock as of the expiration of outstanding (determined on a fully diluted basis) on the Offer plus (ii) without duplication of clause (i), the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up Closing Date (the “Short-Form Threshold”), Merger Acquisition Sub shall be required to exercise, and shall be deemed to have exercised exercised, the Top-Up for such number of Top-Up Shares as is necessary for Merger Acquisition Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Subsidiaries at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer ClosingClosing Date), deliver written notice to Merger Acquisition Sub specifying, based on the information provided by Merger Acquisition Sub in its notice, the number of Top-Up SharesShares to be purchased. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Merger Closing specified in Section 2.023.2, and shall take place simultaneously with with, or as soon as reasonably practicable after, the Offer Closing, the purchase price owed by Merger Acquisition Sub to the Company to purchase the Top-Up Shares shall be AGREEMENT AND PLAN OF MERGER paid to the Company, at Merger Acquisition Sub’s option, (i) in cash, by wire transfer of same-day funds, ; or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 35% per annum, (iii) shall be full recourse to Parent and Merger Acquisition Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Acquisition Sub a certificate representing the Top-Up Shares.

Exercise of Top-Up; Top-Up Closing. If there shall have not been validly tendered in the Offer, and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub its Affiliates, would represent at least one share more than 90% of: (i) of the outstanding shares of the Company Common Stock as of the expiration of outstanding on the Offer plus (ii) without duplication of clause (i)Closing Date, the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up (the “Short-Form Threshold”), Merger Sub shall be deemed to have exercised the Top-Up for such number of Top-Up Shares as is necessary for Merger Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Subsidiaries at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer Closing), deliver written notice to Merger Sub specifying, based on the information provided by Merger Sub in its notice, the number of Top-Up Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Merger Closing specified in Section 2.02, and shall take place simultaneously with the Offer Closing, the purchase price owed by Merger Sub to the Company to purchase the Top-Up Shares shall be paid to the Company, at Merger Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 35% per annum, (iii) shall be full recourse to Parent and Merger Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares.

Exercise of Top-Up; Top-Up Closing. If On and subject to the terms and conditions hereof, if there shall have not been validly tendered in the Offer, Offer and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided provided, that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub its Subsidiaries, would represent at least one more share more than 90% of: (i) the outstanding shares of Company Common Stock as of the expiration of the Offer plus (ii) without duplication of clause (i), the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up Fully Diluted Share Number (the “Short-Form Threshold”), Merger Sub shall be deemed to have exercised the Top-Up for such number of Top-Up Shares as is necessary for Merger Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Subsidiaries at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer Closing), deliver written notice to Merger Sub specifying, based on the information provided by Merger Sub in its notice, the number of Top-Up Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Merger Closing specified in Section 2.02, and shall take place simultaneously with with, or as soon as reasonably practicable after, the Offer Closing, the purchase price owed by Merger Sub to the Company to purchase the Top-Up Shares shall be paid to the Company, at Merger Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 35% per annum, (iii) shall be full recourse to Parent and Merger Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares.

Exercise of Top-Up; Top-Up Closing. If Subject to the limitations set forth in Section 2.3(a) and the satisfaction of the conditions to the Merger, including Section 9.1(b) but, for the avoidance of doubt, excluding Section 9.1(a), if there shall not have not been validly tendered in the Offer, Offer and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub its Subsidiaries, would represent at least one share more than 90% of: (i) meet the outstanding shares of Company Common Stock as of the expiration of the Offer plus (ii) without duplication of clause (i), the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up (the “Short-Short Form Threshold”), Merger Acquisition Sub shall be deemed to have exercised the Top-Up for such number of Top-Up Shares as is necessary for Merger Acquisition Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Subsidiaries at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer ClosingClosing Date), deliver written notice to Merger Acquisition Sub specifying, based on the information provided by Merger Acquisition Sub in its notice, the number of Top-Up Shares to be purchased and, upon request of Acquisition Sub, the Company shall use commercially reasonable efforts to cause its transfer agent to certify in writing to Acquisition Sub the number of issued and outstanding shares of Company Capital Stock as of immediately prior to the exercise of the Top-Up and after giving effect to the issuance of the Top-Up Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Merger Closing specified in Section 2.02, 3.2 and shall take place simultaneously with with, or as soon as reasonably practicable after, the Offer Closing, the purchase price owed by Merger Acquisition Sub to the Company to purchase the Top-Up Shares shall be paid to the Company, at Merger Acquisition Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 35% per annum, (iii) shall be full recourse to Parent and Merger Acquisition Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At The Company Board and the Special Committee have determined that such consideration for the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up SharesShares is adequate.

Exercise of Top-Up; Top-Up Closing. If Subject to the limitations set forth in Section 2.3(a) and the satisfaction of the conditions to the Merger, including Section 9.1(c), if there shall not have not been validly tendered in the Offer, Offer and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub its Subsidiaries, would represent at least one share more than 90% of: (i) of the outstanding shares of the Company Common Stock as of the expiration of outstanding on the Offer plus (ii) without duplication of clause (i), the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up Closing Date (the “Short-Form Threshold”), Merger Acquisition Sub shall be deemed to have exercised exercise the Top-Up for such number of Top-Up Shares as is necessary for Merger Acquisition Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Subsidiaries at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer ClosingClosing Date), deliver written notice to Merger Acquisition Sub specifying, based on the information provided by Merger Acquisition Sub in its notice, the number of Top-Up SharesShares to be purchased. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Merger Closing specified in Section 2.023.2, and shall take place simultaneously with with, or as soon as reasonably practicable after, the Offer Closing, the purchase price owed by Merger Acquisition Sub to the Company to purchase the Top-Up Shares shall be paid to the Company, at Merger Acquisition Sub’s option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “Promissory Note”). The Promissory Note (i) shall be due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 35% per annum, payable in arrears at maturity, (iii) shall be full recourse to Parent and Merger Acquisition Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Acquisition Sub a certificate representing the Top-Up Shares.

Exercise of Top-Up; Top-Up Closing. If On and subject to the terms and conditions hereof, if there shall have not been validly tendered in the Offer, Offer and not validly withdrawn, withdrawn that number of shares of Company Common Stock (provided provided, that Parent and Merger Sub shall have the right to exclude for this purpose any shares tendered in the Offer pursuant to guaranteed delivery procedures) which, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Merger Sub its Subsidiaries, would represent at least one more share more than 90% of: (i) the outstanding shares of Company Common Stock as of the expiration of the Offer plus (ii) without duplication of clause (i), the aggregate number of shares of Company Common Stock issuable to holders of Company DSUs outstanding as of the expiration of the Offer plus (iii) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options outstanding as of the expiration of the Offer minus (iv) the aggregate number of shares of Company Common Stock issuable to holders of Company Stock Options for which Parent has obtained prior to the expiration of the Offer agreements (satisfactory to Parent in its sole discretion) by the holders thereof not to exercise such Company Stock Options prior to the termination of this Agreement plus (v) the aggregate number of shares of Company Common Stock issuable to the holders of Company Equity Awards (other than Company Stock Options and Company DSUs) outstanding as of the expiration of the Offer plus (vi) the number of shares to be purchased by Merger Sub under the Top-Up Fully Diluted Share Number (the “"Short-Form Threshold”"), Merger Sub shall be deemed to have exercised the Top-Up for such number of Top-Up Shares as is necessary for Merger Sub to reach the Short-Form Threshold and on such date shall give the Company prior written notice specifying the number of shares of Company Common Stock directly or indirectly owned by Parent and its Merger Sub Subsidiaries at the time of such notice (assuming that giving effect to the Offer Closing has occurred, provided that Parent and Merger Sub shall have the right to exclude for this purpose shares tendered in the Offer pursuant to guaranteed delivery proceduresClosing). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer Closing), deliver written notice to Merger Sub specifying, based on the information provided by Merger Sub in its notice, the number of Top-Up Shares. At the closing of the purchase of the Top-Up Shares (the “"Top-Up Closing”"), which shall take place at the location of the Merger Closing specified in Section 2.02, and shall take place simultaneously with with, or as soon as reasonably practicable after, the Offer Closing, the purchase price owed by Merger Sub to the Company to purchase the Top-Up Shares shall be paid to the Company, at Merger Sub’s 's option, (i) in cash, by wire transfer of same-day funds, or (ii) by (x) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up less the amount paid in cash pursuant to the preceding clause (x) (the “"Promissory Note”"). The Promissory Note (i) shall be due on the first anniversary of the Top-Up Closing, (ii) shall bear simple interest of 35% per annum, (iii) shall be full recourse to Parent and Merger Sub, (iv) may be prepaid, in whole or in part, at any time without premium or penalty, and (v) shall have no other material terms. At the Top-Up Closing, the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares.