Common use of Grant of Top-Up Stock Option Clause in Contracts

Grant of Top-Up Stock Option. (a) Subject to the terms and conditions set forth herein, the Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Stock Option”) to purchase that number of newly-issued shares of Company Common Stock (the “Top-Up Option Shares”) equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Merger Sub, Parent and their Subsidiaries immediately following consummation of the Offer and the issuance of such Top-Up Option Shares, shall constitute ninety percent (90%) of the total number of Fully Diluted Shares (assuming the issuance of the Top-Up Option Shares), at a purchase price per Top-Up Option Share equal to the Offer Price; provided, however, that (i) the total number of shares of Company Common Stock subject to the Top-Up Stock Option shall not exceed the number of authorized shares of Company Common Stock available for issuance by the Company at such time (giving effect to such shares of Company Common Stock reserved for issuance pursuant to outstanding Company Options or pursuant to the ESPP as though such shares of Company Common Stock were outstanding), (ii) the number of Top-Up Shares subject to the Top-Up Option shall not exceed 19.9% of the total number of shares of Company Common Stock outstanding immediately prior to such issuance and (iii) the Company shall not be required to issue shares of Company Common Stock pursuant to the Top-Up Stock Option if any temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint then in effect shall prohibit such issuance. The Company agrees to provide Parent and Merger Sub with information regarding the number of shares of Company Common Stock available for issuance on an ongoing basis, as and when requested by Parent from time to time prior to the Top-Up Termination Time (as defined below). (b) Merger Sub shall, if and only if required by the Company pursuant to Section 1.1(e) prior to the Top-Up Termination Date, promptly exercise the Top-Up Stock Option in whole, but not in part. (c) Except as provided in the last sentence of this Section 1.4(c), the “Top-Up Termination Time” shall occur upon the earliest to occur of: (i) the Effective Time, and (iii) the termination of this Agreement. The occurrence of the Top-Up Termination Time shall not affect any rights hereunder which by their terms do not terminate or expire prior to or as of such date, unless this Agreement has been terminated under Section 10 prior to the occurrence of the Top-Up Closing. (d) In the event Merger Sub is obligated pursuant to this Agreement to exercise the Top-Up Stock Option, Merger Sub shall send to the Company a written notice (a “Top-Up Exercise Notice,” the date of which notice is referred to herein as the “Top-Up Notice Date”) specifying the denominations of the certificate or certificates evidencing the Top-Up Option Shares which Merger Sub wishes to receive, the place for the closing of the purchase and sale pursuant to the Top-Up Stock Option (the “Top-Up Closing”) and a closing date not earlier than one (1) day nor later than three (3) Business Days from the Top-Up Notice Date for the Top-Up Closing. The Company shall, promptly after receipt of the Top-Up Exercise Notice, deliver a written notice to Parent and Merger Sub confirming the number of Top-Up Option Shares and the aggregate purchase price therefor.

Grant of Top-Up Stock Option. (a) Subject to the terms and conditions set forth herein, the Company hereby grants to Merger Sub Purchaser an irrevocable option (the “Top-Up Stock Option”) to purchase that number of newly-issued shares of Company Common Stock (the “Top-Up Option Shares”) equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Merger SubPurchaser, Parent and their Subsidiaries immediately following consummation of the Offer and the issuance of such Top-Up Option Shares, shall constitute ninety percent (90%) % of the total number shares of Fully Diluted Shares Company Common Stock then outstanding (assuming the issuance of the Top-Up Option Shares), at a purchase price per Top-Up Option Share equal to the Offer Price; provided, however, that (i) the total number of shares of Company Common Stock subject to the Top-Up Stock Option shall not exceed the number of authorized shares of Company Common Stock available for issuance by the Company at such time (giving effect to such shares of Company Common Stock reserved for issuance pursuant to outstanding Company Options or pursuant to the ESPP as though such shares of Company Common Stock were outstanding)time, (ii) the number of Top-Up Shares subject to the Top-Up Option shall not exceed 19.9% of the total number of shares of Company Common Stock outstanding immediately prior to such issuance and (iii) the Company shall not be required to issue shares of Company Common Stock pursuant to the Top-Up Stock Option if any temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint then in effect shall prohibit such issuance. The Company agrees to provide Parent and Merger Sub Purchaser with information regarding the number of shares of Company Common Stock available for issuance on an ongoing basis, as and when requested by Parent from time to time prior to the Top-Up Termination Time (as defined below)Date. (b) Merger Sub shallPurchaser may, if and only if required by the Company pursuant to Section 1.1(e) prior to the Top-Up Termination Dateat its election, promptly exercise the Top-Up Stock Option in whole, but not in part, at any one time after the occurrence of a Top-Up Exercise Event and prior to the Top-Up Termination Date. A "Top-Up Exercise Event" shall occur upon Purchaser’s acceptance for payment of, and payment for, shares of Company Common Stock pursuant to the Offer constituting more than 80% but less than 90% of the shares of Company Common Stock then outstanding. (c) Except as provided in the last sentence of this Section 1.4(c1.15(c), the “Top-Up Termination TimeDate” shall occur upon the earliest to occur of: (i) the Effective Time, ; (ii) the date which is five (5) Business Days after the occurrence of a Top-Up Exercise Event; and (iii) the termination of this Agreement. Notwithstanding the occurrence of the Top-Up Termination Date pursuant to clause (ii) of the definition of Top-Up Termination Date, Purchaser shall be entitled to purchase the Top-Up Option Shares if it has exercised the Top-Up Stock Option in accordance with the terms hereof prior to such occurrence. The occurrence of the Top-Up Termination Time Date shall not affect any rights hereunder which by their terms do not terminate or expire prior to or as of such date, unless this Agreement has been terminated under Section 10 7.1 prior to the occurrence of the Top-Up Closing. (d) In the event Merger Sub is obligated pursuant to this Agreement Purchaser wishes to exercise the Top-Up Stock Option, Merger Sub Purchaser shall send to the Company a written notice (a “"Top-Up Exercise Notice,” " the date of which notice is referred to herein as the “Top-Up Notice Date”) specifying the denominations of the certificate or certificates evidencing the Top-Up Option Shares which Merger Sub Purchaser wishes to receive, the place for the closing of the purchase and sale pursuant to the Top-Up Stock Option (the “"Top-Up Closing”") and a closing date not earlier than one (1) day nor later than three (3) Business Days from the Top-Up Notice Date for the Top-Up Closing. The Company shall, promptly after receipt of the Top-Up Exercise Notice, deliver a written notice to Parent and Merger Sub Purchaser confirming the number of Top-Up Option Shares and the aggregate purchase price therefor.

Grant of Top-Up Stock Option. (a) Subject to the terms and conditions set forth herein, the Company hereby grants to Merger Sub Purchaser an irrevocable option (the “Top-Up Stock Option”) to purchase that number of newly-issued shares of Company Common Stock (the “Top-Up Option Shares”) equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Merger SubPurchaser, Parent and their Subsidiaries immediately following consummation of the Offer and the issuance of such Top-Up Option Shares, shall constitute ninety percent (90%) % of the total number shares of Fully Diluted Shares Company Common Stock then outstanding (assuming the issuance of the Top-Up Option Shares), at a purchase price per Top-Up Option Share equal to the Offer Price; provided, however, that (i) the total number of shares of Company Common Stock subject to the Top-Up Stock Option shall not exceed the number of authorized shares of Company Common Stock available for issuance by the Company at such time (giving effect to such shares of Company Common Stock reserved for issuance pursuant to outstanding Company Options or pursuant to the ESPP as though such shares of Company Common Stock were outstanding)time, (ii) the number of Top-Up Shares subject to the Top-Up Option shall not exceed 19.9% of the total number of shares of Company Common Stock outstanding immediately prior to such issuance and (iii) the Company shall not be required to issue shares of Company Common Stock pursuant to the Top-Up Stock Option if any temporary restraining order, preliminary or permanent injunction or other order issued by any court of competent jurisdiction or other legal or regulatory restraint then in effect shall prohibit such issuance. The Company agrees to provide Parent and Merger Sub Purchaser with information regarding the number of shares of Company Common Stock available for issuance on an ongoing basis, as and when requested by Parent from time to time prior to the Top-Up Termination Time (as defined below)Date. (b) Merger Sub shallPurchaser may, if and only if required by the Company pursuant to Section 1.1(e) prior to the Top-Up Termination Dateat its election, promptly exercise the Top-Up Stock Option in whole, but not in part. (c) Except as provided in the last sentence of this Section 1.4(c), the “Top-Up Termination Time” shall occur upon the earliest to occur of: (i) the Effective Time, and (iii) the termination of this Agreement. The occurrence of the Top-Up Termination Time shall not affect at any rights hereunder which by their terms do not terminate or expire prior to or as of such date, unless this Agreement has been terminated under Section 10 prior to one time after the occurrence of the Top-Up Closing. (d) In the event Merger Sub is obligated pursuant to this Agreement to exercise the Top-Up Stock Option, Merger Sub shall send to the Company a written notice (a “Top-Up Exercise Notice,” the date of which notice is referred Event and prior to herein as the “Top-Up Notice Date”) specifying the denominations of the certificate or certificates evidencing the Top-Up Option Shares which Merger Sub wishes to receive, the place for the closing of the purchase and sale pursuant to the Top-Up Stock Option (the “Top-Up Closing”) and a closing date not earlier than one (1) day nor later than three (3) Business Days from the Top-Up Notice Date for the Top-Up Closing. The Company shall, promptly after receipt of the Top-Up Exercise Notice, deliver a written notice to Parent and Merger Sub confirming the number of Top-Up Option Shares and the aggregate purchase price therefor.the