Common use of Option to Acquire Additional Shares Clause in Contracts

Option to Acquire Additional Shares. The Company hereby grants to Merger Sub an irrevocable option (the "TOP-UP OPTION"), exercisable in accordance with this SECTION 1.3, to purchase the number of Shares (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 immediately prior to the exercise of the Top-Up Option (which such shares of Company Common Stock owned by Merger Sub shall not be less than the Minimum Tender Condition) shall constitute one share more than 80% of the number of Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares) for a purchase price per Top-Up Option Share equal to the Offer Price. The Top-Up Option may be exercised by Merger Sub in whole but not in part; PROVIDED, HOWEVER, that Merger Sub agrees that it will exercise the Top-Up Option only if doing so would allow it to consummate the Merger pursuant to Section 607.1104 of the FBCA. In no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company's then authorized and unissued Shares (including as authorized and unissued shares of Common Stock, for purposes of this SECTION 1.3, any Shares reserved for issuance, upon the exercise of any outstanding Option or with respect to any other outstanding security convertible into or exercisable or exchangeable for Shares). The Top-Up Option may be exercised by Merger Sub at any time at or after the Acceptance Time and the expiration of any subsequent offering period and on or prior to the tenth (10th) Business Day after the later of (i) the expiration date of the Offer or (ii) the expiration of any Subsequent Offering Period; PROVIDED, HOWEVER, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions, unless waived by the Company, that (A) no provision of any applicable Law, and no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by a court of competent jurisdiction or other Governmental Authority of competent jurisdiction, shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (B) after issuance of the Top-Up Option Shares upon exercise, the number of Shares owned by Parent or Merger Sub or any wholly owned Subsidiary of Parent or Merger Sub constitutes one share more than 80% of the number of Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares, and (C) upon exercise of the Top-Up Option, Merger Sub covenants to cause the Closing to occur as soon as practicable thereafter; and, provided, FURTHER, that the Top-Up Option shall terminate concurrently with the termination of this Agreement. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished in a manner consistent with all applicable Law, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act. If Merger Sub wishes to so exercise the Top-Up Option, Merger Sub shall give the Company written notice thereof specifying a place and time (which, subject to applicable Law and any required regulatory approvals, shall be at least two (2), but not more than five (5), Business Days after the date of delivery of such written notice) for the closing of such purchase. At such closing, (i) the purchase price in respect of the Top-Up Option Shares purchased upon such exercise of the Top-Up Option (which shall equal the product of (x) the number of Top-Up Option Shares being purchased pursuant to the Top-Up Option and (y) the Offer Price) shall be paid to the Company, at Merger Sub's election, either (A) in immediately available funds by wire transfer to an account designated by the Company or (B) by paying in cash an amount equal to not less than the aggregate par value of such Top-Up Option Shares and by delivering Parent's unsecured, non-negotiable, non-transferable promissory note (the "NOTE") in the principal amount of the balance of such purchase price, which promissory note shall bear interest at the rate of 3% per annum, shall mature on the first anniversary of the date thereof and may be prepaid in whole or in part without premium or penalty, and (ii) the Company shall deliver to Merger Sub a certificate or certificates representing the number of Top-Up Option Shares so purchased. Parent and Merger Sub acknowledge that the Top-Up Option Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act, and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub represent and warrant to the Company that Merger Sub is, or will be upon the purchase of the Top-Up Option Shares, an "accredited investor", as defined in Rule 501 of Regulation D under the Securities Act. Merger Sub agrees that the Top-Up Option and the Top-Up Option Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Merger Sub for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof in violation of the Securities Act.

Option to Acquire Additional Shares. The Company hereby grants to Merger Sub an irrevocable option (the "TOP“Top-UP OPTION"Up Option”), exercisable in accordance with this SECTION Section 1.3, to purchase the number of Shares (the "TOP“Top-UP OPTION SHARES"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 immediately prior to the exercise of the Top-Up Option (which such shares of Company Common Stock owned by Merger Sub shall not be less than the Minimum Tender Condition) shall constitute one share more than 80% of the number of Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares) for a purchase price per Top-Up Option Share equal to the Offer Price. The Top-Up Option may be exercised by Merger Sub in whole but not in part; PROVIDEDprovided, HOWEVERhowever, that Merger Sub agrees that it will exercise the Top-Up Option only if doing so would allow it to consummate the Merger pursuant to Section 607.1104 of the FBCA. In no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company's ’s then authorized and unissued Shares (including as authorized and unissued shares of Common Stock, for purposes of this SECTION Section 1.3, any Shares reserved for issuance, upon the exercise of any outstanding Option or with respect to any other outstanding security convertible into or exercisable or exchangeable for Shares). The Top-Up Option may be exercised by Merger Sub at any time at or after the Acceptance Time and the expiration of any subsequent offering period and on or prior to the tenth (10th) Business Day after the later of (i) the expiration date of the Offer or (ii) the expiration of any Subsequent Offering Period; PROVIDEDprovided, HOWEVERhowever, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions, unless waived by the Company, that (A) no provision of any applicable Law, and no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by a court of competent jurisdiction or other Governmental Authority of competent jurisdiction, shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (B) after issuance of the Top-Up Option Shares upon exercise, the number of Shares owned by Parent or Merger Sub or any wholly owned Subsidiary of Parent or Merger Sub constitutes one share more than 80% of the number of Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares, and (C) upon exercise of the Top-Up Option, Merger Sub covenants to cause the Closing to occur as soon as practicable thereafter; and, provided, FURTHERfurther, that the Top-Up Option shall terminate concurrently with the termination of this Agreement. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished in a manner consistent with all applicable Law, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act. If Merger Sub wishes to so exercise the Top-Up Option, Merger Sub shall give the Company written notice thereof specifying a place and time (which, subject to applicable Law and any required regulatory approvals, shall be at least two (2), but not more than five (5), Business Days after the date of delivery of such written notice) for the closing of such purchase. At such closing, (i) the purchase price in respect of the Top-Up Option Shares purchased upon such exercise of the Top-Up Option (which shall equal the product of (x) the number of Top-Up Option Shares being purchased pursuant to the Top-Up Option and (y) the Offer Price) shall be paid to the Company, at Merger Sub's ’s election, either (A) in immediately available funds by wire transfer to an account designated by the Company or (B) by paying in cash an amount equal to not less than the aggregate par value of such Top-Up Option Shares and by delivering Parent's ’s unsecured, non-negotiable, non-transferable promissory note (the "NOTE"“Note”) in the principal amount of the balance of such purchase price, which promissory note shall bear interest at the rate of 3% per annum, shall mature on the first anniversary of the date thereof and may be prepaid in whole or in part without premium or penalty, and (ii) the Company shall deliver to Merger Sub a certificate or certificates representing the number of Top-Up Option Shares so purchased. Parent and Merger Sub acknowledge that the Top-Up Option Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act, and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub represent and warrant to the Company that Merger Sub is, or will be upon the purchase of the Top-Up Option Shares, an "“accredited investor"”, as defined in Rule 501 of Regulation D under the Securities Act. Merger Sub agrees that the Top-Up Option and the Top-Up Option Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Merger Sub for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof in violation of the Securities Act.

Option to Acquire Additional Shares. (a) The Company hereby grants to Merger Sub an irrevocable option (the "TOP“Top-UP OPTION"Up Option”), exercisable in accordance with this SECTION 1.3Section 1.4, to purchase the number of Shares shares of Company Common Stock (the "TOP“Top-UP OPTION SHARES"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 in the aggregate by Parent, Merger Sub and any Subsidiary of Parent or Merger Sub immediately prior to the exercise of the Top-Up Option (which such shares of Company Common Stock owned by Merger Sub shall including all Shares validly tendered and not be less than properly withdrawn in the Minimum Tender Condition) Offer at the Acceptance Time), shall constitute one share more than 8090% of the number of Shares shares of Company Common Stock then outstanding on a Fully Diluted Basis and (after giving effect to the issuance of the Top-Up Option Shares) for a purchase price per Top-Up Option Share equal to the Offer Price. The Top-Up Option may shall only be exercised one time by Merger Sub in whole but not in part; PROVIDED. For avoidance of doubt, HOWEVER, that Merger Sub agrees that it will (i) the one time exercise the means an exercise pursuant to which Top-Up Option only if doing so would allow it Shares are actually delivered by Company to consummate Merger Sub and (ii) all or any portion of the 60 Million Shares (less the 40,000 shares designated as Company Preferred Stock) issued to Merger Sub pursuant to this Section 607.1104 of the FBCA. 1.4 shall be designated Company Common Stock. (b) In no event shall the Top-Up Option be exercisable for a number of Shares shares of Company Common Stock in excess of the Company's ’s then authorized and unissued shares of Company Common Stock (including the 60 Million Shares (designated as Company Common Stock and less any required shares to be held in reserve with respect to the Options, Restricted Shares and Warrants and including as authorized and unissued shares of Company Common Stock, for purposes of this SECTION 1.3Section 1.4, any Shares reserved for issuance, upon shares of Company Common Stock held in the exercise treasury of any outstanding Option or with respect to any other outstanding security convertible into or exercisable or exchangeable for Sharesthe Company). . (c) The Top-Up Option may shall be exercised by Merger Sub at any time at or (and Parent shall cause Merger Sub to exercise the Top-Up Option) immediately after the Acceptance Time and the expiration of any subsequent offering period and on or prior to the tenth (10th) Business Day after the later of (i) the expiration date of the Offer or (ii) the expiration of any Subsequent Offering Period, as applicable, if (i) at the Acceptance Time or expiration of a Subsequent Offering Period, as applicable, Parent, Merger Sub and any Subsidiary of Parent or Merger Sub do not own in the aggregate at least 90% of the number of shares of Company Common Stock then outstanding on a Fully Diluted Basis and (ii) after giving effect to the exercise of the Top-Up Option, and taking into account the limitations set forth in Section 1.4(b), Parent, Merger Sub and any Subsidiary of Parent or Merger Sub would own in the aggregate at least one share more than 90% of the number of shares of Company Common Stock then outstanding on a Fully Diluted Basis (after giving effect to the issuance of the Top-Up Option Shares); PROVIDEDprovided, HOWEVERhowever, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions, unless waived by the Company, that (A) no provision of any applicable Law, and no temporary restraining order, preliminary or permanent injunction or other judgment Judgment or order issued by a court of competent jurisdiction or other Governmental Authority of competent jurisdiction, shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (B) after issuance upon exercise of the Top-Up Option Shares upon exerciseOption, the number of Shares owned in the aggregate by Parent or Parent, Merger Sub or and any wholly owned Subsidiary of Parent or Merger Sub constitutes at least one share more than 8090% of the number of Shares shares of Company Common Stock that will be outstanding (on a Fully Diluted Basis) immediately after the issuance of the Top-Up Option Shares, (C) Merger Sub has accepted for payment and paid for all Shares validly tendered in the Offer (including, if applicable, during a Subsequent Offering Period) and not properly withdrawn, and (CD) upon exercise of the Top-Up Option, Merger Sub Parent covenants to cause the Closing to occur as soon promptly as practicable thereafterfollowing the issuance of the Top-Up Option Shares; and, provided, FURTHERfurther, that the Top-Up Option shall terminate concurrently with the any termination of this Agreement. . (d) The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished in a manner consistent with all applicable Law, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act. If Merger Sub wishes is required to so exercise the Top-Up Option, Merger Sub shall give the Company written notice thereof (the “Top-Up Notice”) specifying (i) a place and time for the closing of such purchase (which, subject to applicable Law and any required regulatory approvals, shall be at least two (2), but effected as promptly as practicable and not more than five one (5), 1) Business Days Day after the date of delivery of such written noticeTop-Up Notice), (ii) for the number of shares of Company Common Stock that will constitute the Top-Up Option Shares and (iii) the manner in which Parent or Merger Sub shall pay the applicable purchase price in respect of the Top-Up Option Shares. At the closing of such purchase. At such closingthe purchase of the Top-Up Option Shares, (iA) the purchase price in respect of the Top-Up Option Shares purchased upon such exercise of the Top-Up Option (which shall equal the product of (x) the number of Top-Up Option Shares being purchased pursuant to the Top-Up Option and (y) the Offer Price) shall be paid to the Company, at Merger Sub's ’s election, either (AI) in immediately available funds by wire transfer to an account designated by the Company or (BII) by paying in cash an amount equal to not less than the aggregate par value of such Top-Up Option Shares and by delivering Parent's ’s unsecured, non-negotiable, non-transferable promissory note in the form attached hereto as Exhibit C (the "NOTE"“Promissory Note”) in the principal amount of equal to the balance of such purchase price, which promissory note shall bear interest at price for the rate of 3% per annum, shall mature on the first anniversary of the date thereof and may be prepaid in whole or in part without premium or penaltyTop-Up Option Shares, and (iiB) the Company shall deliver to Merger Sub a certificate or certificates representing the number of Top-Up Option Shares so purchased. The Company represents and warrants to Parent and Merger Sub that upon delivery to Merger Sub of the Top-Up Option Shares against payment therefor in accordance herewith, such Top-Up Option Shares shall be duly authorized, validly issued, fully paid and non-assessable shares of Company Common Stock. (e) Parent and Merger Sub acknowledge that the Top-Up Option Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act, and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub represent and warrant to the Company that Merger Sub is, or will be upon the purchase of the Top-Up Option Shares, an "accredited investor", as defined in Rule 501 of Regulation D under the Securities Act. Merger Sub agrees that the Top-Up Option and the Top-Up Option Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Merger Sub for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof in violation of the Securities Act. Parent and Merger Sub represent and warrant to the Company that Merger Sub is, or will be upon the purchase of the Top-Up Option Shares, an “accredited investor”, as defined in Rule 501 of Regulation D under the Securities Act or a sophisticated purchaser under Section 4(2) under the Securities Act. Any certificates evidencing the Top-Up Option Shares shall include any legends required by applicable securities Laws. (f) To the extent applicable, Parent, Merger Sub and the Company acknowledge and agree that neither any dilutive impact on the value of the Shares of Company Common Stock as a result of the issuance of the Top-Up Shares, nor any effect of any Promissory Note delivered by Parent or Merger Sub to the Company as the Top-Up consideration, shall be taken into account in any determination of the fair value of Shares of any shareholder of the Company for any reason whatsoever or with respect to Shares of any dissenting shareholder to the fullest extent permitted by applicable Law. The Surviving Corporation shall not assert that the Top-Up Option, the Top-Up Shares or any cash or Promissory Note delivered to the Company as payment for any Top-Up Shares should be considered in the connection with the determination of the fair value of any Shares for any purpose whatsoever.

Option to Acquire Additional Shares. (a) The Company hereby grants to Merger Sub an irrevocable option (the "TOP“Top-UP OPTION"Up Option”), exercisable in accordance with this SECTION 1.3Section 1.4, to purchase the number of Shares shares of Company Common Stock (the "TOP“Top-UP OPTION SHARES"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 in the aggregate by Parent, Merger Sub and any Subsidiary of Parent or Merger Sub immediately prior to the exercise of the Top-Up Option (which such including all Shares validly tendered and not properly withdrawn in the Offer at the Acceptance Time), shall constitute 5,000 shares more than 90% of the number of shares of Company Common Stock owned by Merger Sub shall not be less than the Minimum Tender Condition) shall constitute one share more than 80% of the number of Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares) for a purchase price per Top-Up Option Share equal to the Offer Price. The Top-Up Option may shall only be exercised one time by Merger Sub in whole but not in part; PROVIDED, HOWEVER, that Merger Sub agrees that it will exercise the Top-Up Option only if doing so would allow it to consummate the Merger pursuant to Section 607.1104 of the FBCA. . (b) In no event shall the Top-Up Option be exercisable for a number of Shares shares of Company Common Stock in excess of the Company's ’s then authorized and unissued Shares shares of Company Common Stock (including as authorized and unissued shares of Company Common Stock, for purposes of this SECTION 1.3Section 1.4, any Shares shares of Company Common Stock held in the treasury of the Company and any shares of Company Common Stock reserved for issuance, issuance upon the exercise of any outstanding Option or with respect to any other outstanding security convertible into or exercisable or exchangeable for SharesCompany Securities). . (c) The Top-Up Option may shall be exercised by Merger Sub at (and Parent shall cause Merger Sub to exercise the Top-Up Option) promptly (but in any time at or after event within one (1) Business Day) following the Acceptance Time and the expiration of any subsequent offering period and on or prior to the tenth (10th) Business Day after the later of (i) the expiration date of the Offer or (ii) the expiration of any Subsequent Offering Period; PROVIDED, HOWEVERas applicable, that if (i) at the Acceptance Time or expiration of a Subsequent Offering Period, as applicable, Parent, Merger Sub and any Subsidiary of Parent or Merger Sub do not own in the aggregate at least 90% of the number of shares of Company Common Stock then outstanding and (ii) after giving effect to the exercise of the Top-Up Option, and taking into account the limitations set forth in Section 1.4(b), Parent, Merger Sub and any Subsidiary of Parent or Merger Sub would own in the aggregate at least 5,000 shares more than 90% of the number of shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares). The obligation of the Company to issue and deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions, unless waived by the Company, that (A) no provision of any applicable Law, and no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by a court of competent jurisdiction or other Governmental Authority of competent jurisdiction, shall prohibit the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise, (B) after issuance upon exercise of the Top-Up Option Shares upon exerciseOption, the number of Shares owned in the aggregate by Parent or Parent, Merger Sub or and any wholly owned Subsidiary of Parent or Merger Sub constitutes one share at least 5,000 shares more than 8090% of the number of Shares shares of Company Common Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares, (C) Merger Sub has accepted for payment and paid for all Shares validly tendered in the Offer (including, if applicable, during a Subsequent Offering Period) and not properly withdrawn and (CD) upon exercise of the Top-Up Option, Merger Sub Parent covenants to cause the Closing to occur as soon promptly as practicable thereafter; andfollowing the issuance of the Top-Up Option Shares. Notwithstanding anything to the contrary in this Agreement, provided, FURTHER, that the Top-Up Option shall terminate concurrently with the any termination of this Agreement. Upon Parent’s written request, the Company shall use its commercially reasonable efforts to cause its transfer agent to certify in writing to Parent the number of shares of Company Common Stock issued and outstanding as of immediately prior to the exercise of the Top-Up Option after giving effect to the issuance of the Top-Up Option Shares. Subject to the terms and conditions this Agreement, and for so long as this Agreement has not been terminated pursuant to Section 8.1, the Company agrees that it shall maintain out of its existing authorized capital, free from preemptive rights, sufficient authorized but unissued shares of Company Common Stock issuable pursuant to this Agreement so that the Top-Up Option may be exercised (and, for these purposes, no shares of Company Common Stock shall be deemed reserved for issuance pursuant to any other then outstanding Company Securities). (d) The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished in a manner consistent with all applicable LawLaws, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act. If Merger Sub wishes is required to so exercise the Top-Up Option, Merger Sub shall give the Company written notice thereof (the “Top-Up Notice”) specifying (i) a place and time for the closing of such purchase (which, subject to applicable Law and any required regulatory approvals, shall be at least two (2), but effected as promptly as practicable and not more than five three (5), 3) Business Days after the date of delivery of such written noticeTop-Up Notice), (ii) for the number of shares of Company Common Stock that will constitute the Top-Up Option Shares and (iii) the manner in which Parent or Merger Sub shall pay the applicable purchase price in respect of the Top-Up Option Shares. At the closing of such purchase. At such closingthe purchase of the Top-Up Option Shares, (iA) the purchase price in respect of the Top-Up Option Shares purchased upon such exercise of the Top-Up Option (which shall equal the product of (x) the number of Top-Up Option Shares being purchased pursuant to the Top-Up Option and (y) the Offer Price) shall be paid to the Company, at Merger Sub's ’s election, either (AI) in immediately available funds by wire transfer to an account designated by the Company or (BII) by paying in cash an amount equal to not less than the aggregate par value of such Top-Up Option Shares and by delivering Parent's Merger Sub’s unsecured, non-negotiable, non-transferable promissory note in the form attached hereto as Exhibit B (the "NOTE"“Promissory Note”) and in the principal amount of the balance of such purchase price, which promissory note shall bear interest at the rate of 3% per annum, shall mature on the first anniversary of the date thereof and may be prepaid in whole or in part without premium or penalty, and (iiB) the Company shall deliver to Merger Sub a certificate or certificates representing the number of Top-Up Option Shares so purchased. . (e) Parent and Merger Sub acknowledge that the Top-Up Option Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act, and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub represent and warrant to the Company that Merger Sub is, or will be upon the purchase of the Top-Up Option Shares, an "accredited investor", as defined in Rule 501 of Regulation D under the Securities Act. Merger Sub agrees that the Top-Up Option and the Top-Up Option Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Merger Sub for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof in violation of the Securities Act. Parent and Merger Sub represent and warrant to the Company that Merger Sub is, or will be upon the purchase of the Top-Up Option Shares, an “accredited investor”, as defined in Rule 501 of Regulation D under the Securities Act. Any certificates evidencing the Top-Up Option Shares shall include any legends required by applicable securities Laws.

Option to Acquire Additional Shares. (a) The Company hereby grants to Merger Sub Purchaser an irrevocable option (the "TOP“Top-UP OPTION"Up Option”), exercisable in accordance with this SECTION 1.3Section 1.4, to purchase the number of Shares (the "TOP“Top-UP OPTION SHARES"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 Purchaser immediately prior to the exercise of the Top-Up Option (which such shares of Company Common Stock owned by Merger Sub shall not be less than the Minimum Tender Condition) Option, shall constitute one share more than 8090% of the number of Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares) for a purchase price per Top-Up Option Share equal to the Offer Price. The Top-Up Option may be exercised by Merger Sub in whole but not in part; PROVIDEDprovided, HOWEVERhowever, that Merger Sub agrees that it will exercise (i) the Top-Up Option shall be exercisable only if doing so would allow it to consummate the Merger pursuant to Section 607.1104 once, at such time as Parent and Purchaser, directly or indirectly, own at least 50% of the FBCA. In total number of Shares then outstanding and on or prior to the 20th business day after the Expiration Date and has otherwise purchased all Shares validly tendered in the Offer; (ii) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the lesser of (x) the Company's ’s then authorized and unissued Shares (including excluding as authorized and unissued shares of Common Stock, for purposes of this SECTION 1.3Section 1.4, any Shares reserved for issuance, upon ) or (y) the exercise maximum number of any outstanding Option or with respect Shares issuable without shareholder approval pursuant to any other outstanding security convertible into or exercisable or exchangeable for Shares). The Top-Up Option may be exercised by Merger Sub at any time at or after NASDAQ National Market rules then applicable the Acceptance Time and the expiration of any subsequent offering period and on or prior to the tenth Company; (10thiii) Business Day after the later of (i) the expiration date of the Offer or (ii) the expiration of any Subsequent Offering Period; PROVIDEDPurchaser shall, HOWEVER, that the obligation of the Company to deliver Top-Up Option Shares upon concurrently with the exercise of the Top-Up Option is subject Option, give written notice to the conditionsCompany that as promptly as practicable following such exercise, unless waived by Purchaser intends to consummate the Merger; (iv) the Top-Up Option may not be exercised if any provision of applicable law or any judgment, injunction, order or decree of any Governmental Entity shall prohibit, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Entity or the Company, that (A) no provision of any applicable Law, and no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by a court of competent jurisdiction or other Governmental Authority of competent jurisdiction, shall prohibit ’s shareholders in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable; and (Bv) after issuance of the Top-Up Option Shares upon exercisemay not be exercised unless, the number of Shares owned by Parent or Merger Sub or any wholly owned Subsidiary of Parent or Merger Sub constitutes one share more than 80% of the number of Shares that will be outstanding immediately after the such exercise and issuance of the Top-Up Option Shares, and (C) upon exercise Purchaser will hold at least one share more than 90% of the Top-Up Option, Merger Sub covenants to cause the Closing to occur as soon as practicable thereafter; and, provided, FURTHER, that the number of Shares then outstanding. The Top-Up Option shall terminate concurrently with the termination of this Agreement. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished in a manner consistent with all applicable Lawlaw, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act. . (b) If Merger Sub Purchaser wishes to so exercise the Top-Up Option, Merger Sub Purchaser shall give send written notice to the Company written notice thereof specifying a the place and time (which, subject to applicable Law and any required regulatory approvals, shall be at least two (2), but not more than five (5), Business Days after the date of delivery of such written notice) for the closing of such purchase. At such closing, (i) the purchase price in respect of the Top-Up Option Shares purchased upon (the “Top-Up Closing”), and a date not earlier than one business day or later than five business days after the date of such exercise of notice. At the Top-Up Option Closing, subject to the terms and conditions of this Agreement, (which shall equal the product of (xi) the Company shall deliver to Purchaser a certificate or certificates indicating the applicable number of Top-Up Option Shares being purchased pursuant to Shares, and (ii) Purchaser shall purchase each Top-Up Option Share from the Company at the Offer Price. Payment by Purchaser of the purchase price for the Top-Up Option and (y) the Offer Price) shall Shares will be paid to the Company, at Merger Sub's election, either (A) in made by delivery of immediately available funds by wire transfer to an account designated by the Company or Company. (Bc) by paying in cash an amount equal to not less than the aggregate par value of such Top-Up Option Shares and by delivering Parent's unsecured, non-negotiable, non-transferable promissory note (the "NOTE") in the principal amount of the balance of such purchase price, which promissory note shall bear interest at the rate of 3% per annum, shall mature on the first anniversary of the date thereof and may be prepaid in whole or in part without premium or penalty, and (ii) the Company shall deliver to Merger Sub a certificate or certificates representing the number of Top-Up Option Shares so purchased. Parent and Merger Sub Purchaser acknowledge that the Top-Up Option Shares that Merger Sub Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act, and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub Purchaser represent and warrant to the Company that Merger Sub Purchaser is, or will be upon the purchase of the Top-Up Option Shares, an "“accredited investor"”, as defined in Rule 501 of Regulation D under the Securities Act. Merger Sub Purchaser agrees that the Top-Up Option and the Top-Up Option Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Merger Sub Purchaser for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof in violation of the Securities Act.

Option to Acquire Additional Shares. (a) The Company hereby grants to Merger Sub Acquisition an irrevocable option (the "TOP-UP OPTIONOption"), exercisable in accordance with this SECTION 1.3, ) to purchase the up to that number of newly issued Shares (the "TOP-UP OPTION SHARESOption Shares") equal to the number of shares of Company Common Stock thatShares, that when added to the number of shares of Company Common Stock Shares owned by Merger Sub Purchaser and its affiliates immediately prior to the exercise following consummation of the Top-Up Option (which such shares of Company Common Stock owned by Merger Sub shall not be less than the Minimum Tender Condition) Offer, shall constitute one share more than 8090% of the number of Shares then outstanding on a fully diluted basis (after giving effect to the issuance of the Top-Up Option Shares) for a purchase price consideration per Top-Up Option Share equal to the Offer Price. The Top-Up Option may be exercised by Merger Sub in whole but not in partPer Share Amount; PROVIDED, HOWEVER, that Merger Sub agrees the number of Option Shares shall not exceed that it will exercise the Top-Up Option only if doing so would allow it number equal to consummate the Merger pursuant to Section 607.1104 19.9% of the FBCA. In no event shall Shares outstanding on the Top-Up Option be exercisable for a number of Shares in excess of the Company's then authorized and unissued Shares (including as authorized and unissued shares of Common Stock, for purposes date of this SECTION 1.3, any Shares reserved for issuance, upon the exercise of any outstanding Option or with respect to any other outstanding security convertible into or exercisable or exchangeable for Shares). Agreement. (b) The Top-Up Option may be exercised by Merger Sub Acquisition at any time at or after the Acceptance Time and the expiration acceptance for payment by Acquisition of any subsequent offering period and on or prior Shares pursuant to the tenth Offer in accordance with the terms of this Agreement. In the event Acquisition wishes to exercise the Option, Acquisition shall give written notice (10ththe "Notice") Business Day after the later of (i) the expiration date of the Offer or (ii) the expiration of any Subsequent Offering Period; PROVIDED, HOWEVER, that the obligation of the Company to deliver Top-Up Option Shares upon the its exercise of the Top-Up Option is subject to the conditions, unless waived by the Company, that (A) no provision of any applicable Law, and no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by a court of competent jurisdiction or other Governmental Authority of competent jurisdiction, shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (B) after issuance of the Top-Up Option Shares upon exercise, the number of Shares owned by Parent or Merger Sub or any wholly owned Subsidiary of Parent or Merger Sub constitutes one share more than 80% of specifying the number of Shares that are or will be outstanding owned by Acquisition and its affiliates immediately after the issuance following consummation of the Top-Up Option Shares, Offer and (C) upon exercise of the Top-Up Option, Merger Sub covenants to cause the Closing to occur as soon as practicable thereafter; and, provided, FURTHER, that the Top-Up Option shall terminate concurrently with the termination of this Agreement. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished in a manner consistent with all applicable Law, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act. If Merger Sub wishes to so exercise the Top-Up Option, Merger Sub shall give the Company written notice thereof specifying a place and a time (which, subject to applicable Law and any required regulatory approvals, shall which may be at least two (2), but not more than five (5), Business Days after concurrent with the date consummation of delivery of such written noticethe Offer) for the closing of such purchase. The Company shall, as soon as possible following receipt of the Notice, deliver written notice to Acquisition specifying the number of Option Shares. (c) At such closingthe closing of the purchase of the Option Shares, (i) the purchase price in respect of the Top-Up Option Shares purchased upon such exercise of the Top-Up Option (which shall equal the product of (x) the number of Top-Up Option Shares being purchased pursuant to the Top-Up Option and (y) the Offer Price) shall be paid to the Company, at Merger Sub's election, either (A) in immediately available funds by wire transfer to an account designated by the Company or (B) by paying in cash an amount equal to not less than the aggregate par value of such Top-Up Option Shares and by delivering Parent's unsecured, non-negotiable, non-transferable promissory note (the "NOTE") in the principal amount of the balance of such purchase price, which promissory note shall bear interest at the rate of 3% per annum, shall mature on the first anniversary of the date thereof and may be prepaid in whole or in part without premium or penalty, and (ii) the Company shall will deliver to Merger Sub Acquisition a certificate or certificates representing the number of Top-Up Option Shares so purchased. Parent purchased and Merger Sub acknowledge that the Top-Up Option Shares that Merger Sub may acquire upon exercise of the Top-Up Option (ii) Acquisition will not be registered under the Securities Act, and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub represent and warrant make payment to the Company that Merger Sub is, or will be upon the purchase of the Top-Up aggregate price for the Option Shares, an "accredited investor"Shares being purchased, as defined stated in Rule 501 the Notice, by check or wire transfer in an amount equal to the product of Regulation D under (x) the Securities Act. Merger Sub agrees that Per Share Amount and (y) the Top-Up Option and the Top-Up total number of Option Shares to delivered at the closing. The Company shall pay all expenses, and any and all United States Federal, state and 1ocal taxes and other charges, that may be acquired upon exercise of the Top-Up Option are being and will be acquired by Merger Sub for the purpose of investment and not with a view to, or for resale payable in connection withwith the preparation, any distribution thereof in violation issuance and delivery of the Securities Actstock certificates under this Section 1.04.