Common use of The Top-Up Option Clause in Contracts

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, to purchase that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing), would constitute one Share more than ninety percent (90%) of the total Shares then outstanding (calculated on a fully diluted basis and after giving effect to the issuance of the Top-Up Shares), at a price per Top-Up Share equal to the Offer Price; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after the issuance of the Top-Up Shares the number of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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 Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. (c) Parent and Merger Sub acknowledge that the Top-Up Shares 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 agree that the Top-Up Option and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned owned by Parent, Merger Sub and any other or their Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) of the total Shares then outstanding (calculated on a fully fully-diluted basis and after giving effect to (assuming the issuance of the Top-Up Shares), at a price per Top-Up Share share equal to the Offer Price. (b) The Top-Up Option shall be exercisable once, in whole and not in part, on or after the Acceptance Time (so long as the exercise of the Top-Up Option would, after issuance of such Shares, be sufficient to allow the Short Form Merger to occur; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then number of authorized but unissued Shares (including as authorized and unissued Shares, for purposes of this Section 2.9, any Shares held in the treasury of the Company) as of immediately prior to and after giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after the issuance of the Top-Up Shares; and provided further, that the Top-Up Option shall terminate upon the earlier of: (i) the tenth (10th) business day after the later of (1) the Acceptance Time and (2) the expiration of any Subsequent Offering Period; and (ii) the termination of this Agreement in accordance with its terms. The obligation of the Company to deliver Top-Up Shares upon the exercise of the Top-Up Option is subject to the conditions that (A) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Shares in respect of such exercise (excluding any rule or regulation of Nasdaq Global Market, Inc.), (B) upon exercise of the Top-Up Option, the number of Shares owned by Parent, Merger Sub and any other their Affiliates of Parent (after giving effect to the Offer Closing) will constitute constitutes one Share more than ninety percent (90%) of the number of Shares that will then be outstanding (calculated on a fully fully-diluted basisbasis immediately after the issuance of the Top-Up Shares, and (C) Merger Sub has accepted for payment all Shares validly tendered in the Offer and not withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities (other than Nasdaq Global Market, Inc.), including compliance with an applicable exemption from registration of the Top-Up Shares under the Securities Act. (bc) If there To exercise the Top-Up Option, Merger Sub shall have not been validly tendered so notify the Company in writing, and not validly withdrawn that number of Shares which, when added to shall set forth in such notice (i) the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall that will be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub and any other their Affiliates immediately preceding the purchase of Parent at the time of such notice (after giving effect to the Offer Closing). 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 Shares and (ii) the place and time for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”). The Company shall, which shall take place at the location as soon as practicable following receipt of such notice, notify Parent and Merger Sub in writing of the Closing specified in Section 2.2, number of Shares then outstanding and shall take place simultaneously with the Offer number of Top-Up Shares. At the Top-Up Closing, (i) Parent or Merger Sub shall pay to the Company in cash by wire transfer the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent Shares and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws; provided, however, at Parent’s election, the aggregate purchase price for the Top-Up Shares may be paid (A) through (i) the payment of an amount in cash equal to the aggregate par value of the Top-Up Shares and (ii) the issuance of a full-recourse promissory note by Merger Sub guaranteed by Parent in principal amount equal to the remainder, bearing simple interest at applicable federal rate per annum and due on the first anniversary of the Top-Up Closing (which promissory note may be prepaid, in whole or in part, without premium or penalty) or (B) with any other combination of cash and such a promissory note where the cash portion of the purchase price is not less than the aggregate par value of the Top-Up Shares. (cd) Parent and Merger Sub acknowledge that the Shares which Merger Sub may acquire upon exercise of the Top-Up Shares 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 agree represent and warrant to the Company that Merger Sub is, or will be upon any purchase of Top-Up Shares, an “accredited investor”, as defined in Rule 501 of Regulation D under the Securities Act. Merger Sub agrees that the Top-Up Option Option, and the Top-Up Shares to be acquired upon exercise of the Top-Up Option Option, if any, are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act). The parties agree and acknowledge that in any appraisal proceeding with respect to the Dissenting Shares and to the fullest extent permitted by applicable Law, the fair value of the Dissenting Shares shall be determined in accordance with Section 262(h) of the DGCL without regard to the Top-Up Option, the Top-Up Shares or any consideration paid or delivered by Merger Sub to the Company in payment for the Top-Up Shares.

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, to purchase that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing), would constitute one Share more than ninety percent (90%) of the total Shares then outstanding (calculated on a fully diluted basis excluding securities convertible into Shares pursuant to the Convertible Notes, Shares issuable upon the exercise or vesting of Company Stock Options, Company RSUs, Deferred Share Rights and the Company ESPP that will be extinguished in exchange for a cash payment pursuant to Section 6.10 and after giving effect to the issuance of the Top-Up Shares), at a price per Top-Up Share equal to the Offer Price; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after the issuance of the Top-Up Shares the number of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basisbasis excluding securities convertible into Shares pursuant to the Convertible Notes and Shares issuable upon the exercise or vesting of Company Stock Options, Company RSUs, Deferred Share Rights and shares that may be acquired pursuant to the Company ESPP that will be extinguished in exchange for a cash payment pursuant to Section 6.10). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basisbasis excluding securities convertible into Shares pursuant to the Convertible Notes and Shares issuable upon the exercise or vesting of Company Stock Options, Company RSUs, Deferred Share Rights and shares that may be acquired pursuant to the Company ESPP that will be extinguished in exchange for a cash payment pursuant to Section 6.10), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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”)Shares, which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent and Merger Sub, in cash or or, if permitted by the Company’s Credit Agreement (including after giving effect to any Clearance relating thereto), by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of five percent (5% %) per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time penalty and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. (c) Parent and Merger Sub acknowledge that the Top-Up Shares 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 agree that the Top-Up Option and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby irrevocably grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereofset forth in this Section 1.5, to purchase purchase, following the Acceptance Time, that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)exercise, would constitute one Share share more than ninety percent (90%) of the total Shares then outstanding (calculated determined on a fully diluted basis and after giving effect to including the issuance of the Top-Up Shares), at a price per Top-Up Share equal to the Offer Price. (b) The Top-Up Option shall be exercisable once in whole and not in part during the twenty (20) Business Day period immediately following the Acceptance Time or, if any Subsequent Offering Period is provided, during the twenty (20) Business Day period following the expiration date of such Subsequent Offering Period; provided, however, that (x) in no event shall the Top-Up Option be exercisable (i) for a number of Shares in excess of the Company’s then authorized but and unissued Shares shares of common stock (giving effect to Shares reserved for issuance under the Company Benefit Equity Plans (as defined in Section 3.2(a) hereof) and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstandingoutstanding but not giving effect to Shares reserved for issuance pursuant to the Rights, but including as authorized and unissued shares of common stock, for purposes of this Section 1.5, any shares held in the treasury of the Company); and , (yii) if the issuance of Shares upon exercise of the Top-Up Option will not be exercisable unless immediately would require approval of the Company’s stockholders under the rules and regulations of the Nasdaq Stock Market or (iii) if, after the issuance exercise of the Top-Up Option, Parent and Merger Sub would not hold a sufficient number of Shares to cause a short-form merger of the Company pursuant to Section 253 of the DGCL; provided, further, that the Top-Up Option shall automatically terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms. (c) In the event that Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall so notify the Company in writing, and shall set forth in such notice (i) the number of Shares that will be owned by Parent and Merger Sub immediately preceding the purchase of the Top-Up Shares and (ii) the number of Shares owned by Parent, Merger Sub place and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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 for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”). The Company shall, which shall take place at the location as soon as practicable following receipt of such notice, notify Parent and Merger Sub in writing of the Closing specified in Section 2.2, number of Shares then outstanding and shall take place simultaneously with the Offer number of Top-Up Shares. At the Top-Up Closing, (i) Parent or Merger Sub shall pay to the Company in cash the aggregate purchase price required to be paid for the Top-Up Shares, at Shares (calculated by multiplying the election number of Parent and Merger Sub, in cash or such Top-Up Shares by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material termsOffer Price) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. (c) Parent and Merger Sub acknowledge that ; provided, however, at Parent’s election, instead of in cash the aggregate purchase price for the Top-Up Shares may be paid through the issuance of a full-recourse promissory note by Parent and Merger Sub, bearing simple interest at five percent (5%) per annum and due on the first anniversary of the Top-Up Closing, which promissory note may be prepaid, in whole or in part, without premium or penalty. (d) Merger Sub acknowledges that the 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 agree represents and warrants to the Company that Merger Sub is, and will be upon the purchase of the Top-Up Shares, an “accredited investor,” as defined in Rule 501 of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”). Merger Sub agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company and the Company Partnership hereby grants grant to Merger Sub Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned owned by Parent, Merger Sub Purchaser and any other Affiliates of Parent collectively their respective affiliates at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share more than ninety percent (90%) the number of Shares necessary for the Company to be merged with the Purchaser pursuant to Section 253 of the total Shares then outstanding (calculated on a fully diluted basis and after giving effect to the issuance of the Top-Up Shares), DGCL at a price per Top-Up Share equal to the Offer PricePrice (a “Short Form Merger”). (b) The Top-Up Option shall be exercisable once at any time after the Acceptance Time and prior to the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement pursuant to Section 8.1; provided, however, that (x) notwithstanding anything contained in no event shall this Agreement to the contrary the Top-Up Option shall not be exercisable for a number if (i) any provision of Shares in excess any applicable Law or any judgment, injunction, order or decree of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to any Governmental Entity shall prohibit the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after or the issuance delivery of the Top-Up Option Shares in respect to such exercise, (ii) the number of Top-Up Option Shares would exceed the sum of the number of authorized but unissued Shares and any treasury shares available for issuance or (iii) after issuance of Shares pursuant to the Top-Up Option, the number of shares will be less than the amount required for Purchaser to effect the Short Form Merger and; provided, further, that the Top-Up Option shall terminate concurrently with the termination of this Agreement pursuant to Section 8.1. (c) In the event Purchaser wishes to exercise the Top-Up Option, Purchaser shall so notify the Company in writing, and shall set forth in such notice (i) the number of Shares owned by Parent, Merger Sub Purchaser and any other Affiliates their respective affiliates immediately preceding the purchase of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option Shares and on such date shall give (ii) the Company prior written notice specifying place and time for the number closing of the purchase of the Top-Up Option Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at (the time of such notice (after giving effect to the Offer “Top-Up Closing”). 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, notify Parent and Purchaser in writing of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub Purchaser shall pay to the Company or the Company Partnership, as the case may be, the aggregate purchase price required to be paid for the Top-Up SharesOption Shares by delivery of, at Purchaser’s option, (A) immediately available funds by wire transfer to an account designated by the election Company, (B) immediately available funds by wire transfer to an account designated by the Company in an amount equal to not less than the aggregate par value of Parent the Top-Up Option Shares and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple note, bearing interest at a rate of 5% per annum the USD LIBOR Rate, and shall mature due six months after the Top-Up Closing, or (6C) months following the date of execution any combination thereof, and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub Purchaser a certificate representing the Top-Up Option Shares, which certificate may include any legends required by applicable securities Laws. (c) Parent and Merger Sub acknowledge that . If the Purchaser exercises the Top-Up Option, then the parties shall cause the Short Form Merger to be consummated immediately after the issuance of the Top-Up Shares. (d) Parent and Purchaser acknowledge that the Shares which Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act U.S. securities laws and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub agree Purchaser represent and warrant to the Company that 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. 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 Parent or Merger Sub for its own account, Purchaser for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase from the Company up to that number of Shares newly issued shares of Common Stock (the “Top-Up Option Shares”) equal to the lowest aggregate number of Shares that, when added shares of Common Stock that the Company is authorized to the number issue under its certificate of Shares Beneficially Owned by Parent, Merger Sub incorporation but that are not issued and any other Affiliates of Parent collectively outstanding (and are not subscribed for or otherwise committed to be issued or reserved for issuance) at the time of exercise (after giving effect to the Offer Closing), would constitute one Share more than ninety percent (90%) of the total Shares then outstanding (calculated on a fully diluted basis and after giving effect to the issuance of the Top-Up Shares)Option, at a price in each case, for consideration per Top-Up Option Share equal to the Offer Price. (b) The Top-Up Option shall be exercisable, in whole or in part, any time at or after the Acceptance Time (the “Purchase Date”); provided, however, that (x) in no event shall the Top-Up Option shall only be exercisable for a number of Shares if the Minimum Tender Condition has been satisfied and, notwithstanding anything in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant this Agreement to the exercise of any other securities convertible into or exchangeable into Sharescontrary, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after shall terminate concurrently with the issuance termination of this Agreement in accordance with its terms. (c) In the event that Merger Sub wishes to exercise the Top-Up Shares the number of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis)Option, Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, shares of Common Stock that Merger Sub and any other Affiliates its affiliates own immediately preceding the exercise of Parent at the Top-Up Option, the manner in which Merger Sub intends to pay the applicable exercise price and the place and a time for the closing of such notice (after giving effect to the Offer Closing)purchase. The Company shall, as soon as practicable promptly following receipt of such notice (and in any event no later than the Offer Closing)notice, deliver written notice to Merger Sub specifying, based on the information provided by Merger Sub in its notice, specifying the number of Top-Up SharesOption Shares to be issued and the consideration due in exchange therefor, calculated in accordance with Section 1.4(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 Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Option Shares, at Merger Sub shall pay the election of Parent and Merger Sub, Company the consideration due in exchange for such Top-Up Option Shares either (i) in cash (by wire transfer or cashier’s check) or (ii) by delivery of cash in an amount equal to the aggregate par value of such Top-Up Option Shares (by wire transfer or cashier’s check) plus a promissory note for the balance due having full recourse to Parent (which shall bear simple Parent, bearing interest at a the rate of 5% three percent (3%) per annum and shall mature six (6) months following annum, maturing on the first anniversary of the date of execution and delivery, may be prepaid, in whole or in part, at any time delivery of such promissory note and being pre-payable without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time penalty and shall have having no other material terms) , and (ii) the Company shall cause deliver to be issued to Parent or Merger Sub a certificate representing the such Top-Up Option Shares or, upon Merger Sub’s request or otherwise if the Company does not then have certificated Shares, which certificate may include any legends required the applicable number of uncertificated Shares represented by applicable securities Laws. (c) Parent and Merger Sub acknowledge book-entry. The Company Board has determined that the Top-Up Shares will not be registered under the Securities Act and will be issued in reliance upon an exemption thereunder such consideration for transactions not involving a public offering. Parent and Merger Sub agree that the Top-Up Option Shares is adequate in accordance with the Delaware General Corporation Law (the “DGCL”) and the Top-Up Shares to be acquired otherwise taken all steps necessary such that upon exercise of issuance and delivery in accordance with this Section 1.4(c) the Top-Up Option are being Shares shall be validly issued, fully paid and will be acquired by Parent or non-assessable. (d) Notwithstanding anything to the contrary contained herein, each of Parent, Merger Sub and the Company acknowledges and agrees that, in any appraisal proceeding under Section 262 of the DGCL with respect to Shares held by Dissenting Stockholders (as defined in Section 4.1(a)), the Top-Up Option, the Top-Up Option Shares or any cash or promissory note delivered by Merger Sub to the Company in payment for its own account, for the purpose of investment and such Top-Up Option Shares shall not with a view to, or for resale be taken into account in connection with, any distribution thereof (within with the meaning determination of the Securities Act)fair value of the shares of Common Stock held by the Dissenting Stockholders in accordance with Section 262 of the DGCL.

The Top-Up Option. (a) The Company hereby irrevocably grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereofset forth in this Section 1.5, to purchase purchase, following the Acceptance Time, that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned owned by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)exercise, would constitute one Share share more than ninety percent (90%) of the total Shares then outstanding (calculated determined on a fully diluted basis and after giving effect to including the issuance of the Top-Up Shares), at a price per Top-Up Share equal to the Offer Price. (b) The Top-Up Option shall be exercisable once in whole and not in part at any time during the twenty Business Day period immediately following the Acceptance Time or if any Subsequent Offering Period is provided, during the twenty Business Day period following the expiration date of such Subsequent Offering Period; provided, however, that (x) in no event shall the Top-Up Option be exercisable (i) for a number of Shares in excess of the Company’s then authorized but and unissued Shares shares of common stock or (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to ii) if, after the exercise of any other securities convertible into or exchangeable into Sharesthe Top-Up Option, if anyParent and Merger Sub would not own a sufficient number of Shares to cause a short-form merger of the Company pursuant to Section 302A.621 of the MBCA; provided, as if such Shares were outstanding); and (y) further, that the Top-Up Option shall automatically terminate upon the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement in accordance with its terms. (c) In the event that Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall so notify the Company in writing, and shall set forth in such notice (i) the number of Shares that will not be exercisable unless owned by Parent and Merger Sub immediately after preceding the issuance purchase of the Top-Up Shares and (ii) the number of Shares owned by Parent, Merger Sub place and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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 for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”). The Company shall, which shall take place at the location as soon as practicable following receipt of such notice, notify Parent and Merger Sub in writing of the Closing specified in Section 2.2, number of Shares then outstanding and shall take place simultaneously with the Offer number of Top-Up Shares. At the Top-Up Closing, (i) Parent or Merger Sub shall pay to the Company in cash the aggregate purchase price required to be paid for the Top-Up Shares, at Shares (calculated by multiplying the election number of Parent and Merger Sub, in cash or such Top-Up Shares by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material termsOffer Price) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. (c) Parent and Merger Sub acknowledge that ; provided, however, at Parent’s election, the aggregate purchase price for the Top-Up Shares may be paid in cash, through the issuance of a full-recourse promissory note by Merger Sub, bearing simple interest at five percent (5%) per annum and due on the first anniversary of the Top-Up Closing, which promissory note may be prepaid, in whole or in part, without premium or penalty, or a combination of cash and such a promissory note. (d) Merger Sub acknowledges that the Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub agree represents and warrants to the Company that Merger Sub is, and will be upon the purchase of the Top-Up 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 Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Shares shares of Common Stock (the “Top-Up Option Shares”) equal to the lowest number of Shares shares of Common Stock that, when added to the number of Shares Beneficially Owned shares of Common Stock owned by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) of the total Shares then outstanding shares of Common Stock (calculated determined on a fully diluted basis and after giving effect to assuming the issuance of the Top-Up Option Shares), at a price per Top-Up Share share equal to the Offer Price. (b) The Top-Up Option shall only be exercisable once in whole and not in part within ten (10) business days after the date on which Merger Sub accepts for payment and pays for Shares pursuant to the Offer (the “Purchase Date”); provided, however, that (x) notwithstanding anything in no event shall this Agreement to the contrary the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will shall not be exercisable unless immediately after and shall terminate on the Purchase Date if (i) the issuance of the Top-Up Option Shares would require shareholder approval under the rules of Nasdaq or (ii) the number of Top-Up Option Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to would exceed the number of Shares Beneficially Owned by Parentauthorized but unissued shares of Common Stock; and, Merger Sub and any other Affiliates of Parentprovided, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis)further, Merger Sub shall be deemed to have exercised that the Top-Up Option and on such date shall give terminate concurrently with the termination of this Agreement in accordance with its terms. While the Top-Up Option is outstanding, the Company prior written will not issue or reserve for issuance any shares of Common Stock or any securities or other rights convertible into, or exercisable or exchangeable for, any shares of Common Stock. (c) In the event Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall so notify the Company in writing, and shall set forth in such notice specifying (i) the number of Shares directly or indirectly shares of Common Stock that will be owned by Parent, Parent and Merger Sub immediately preceding the purchase of the Top-Up Option Shares and any other Affiliates (ii) the place and time for the closing of Parent at the time purchase of such notice the Top-Up Option Shares (after giving effect to the Offer “Top-Up Closing”). The Company shall, as soon as practicable following receipt of such notice (notice, notify Parent 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, writing of the number of shares of Common Stock then outstanding and the number of Top-Up Option 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 Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent Option Shares and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Option Shares, which certificate may include any legends required by applicable securities Laws. (c) Parent and Merger Sub acknowledge that the Top-Up Shares 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 agree that the Top-Up Option and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned owned by Parent, Merger Sub and any other or their Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) of the total Shares then outstanding (calculated on a fully fully-diluted basis and after giving effect to (assuming the issuance of the Top-Up Shares), at a price per Top-Up Share share equal to the Offer Price. (b) The Top-Up Option shall be exercisable once, in whole and not in part, on or after the Acceptance Time (so long as the exercise of the Top-Up Option would, after issuance of such Shares, be sufficient to allow the Short Form Merger to occur; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of (x) the Company’s then number of authorized but unissued Shares (including as authorized and unissued Shares, for purposes of this Section 2.9, any Shares held in the treasury of the Company) or (y) 19.90% of the number of outstanding Shares or voting power of the Company, in each case as of immediately prior to and after giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after the issuance of the Top-Up Shares; and provided further, that the Top-Up Option shall terminate upon the earlier of: (i) the fifth (5th) business day after the later of (1) the Acceptance Time and (2) the expiration of any Subsequent Offering Period; and (ii) the termination of this Agreement in accordance with its terms. The obligation of the Company to deliver Top-Up Shares upon the exercise of the Top-Up Option is subject to the conditions that (A) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Shares in respect of such exercise, (B) upon exercise of the Top-Up Option, the number of Shares owned by Parent, Merger Sub and any other their Affiliates of Parent (after giving effect to the Offer Closing) will constitute constitutes one Share more than ninety percent (90%) of the number of Shares that will then be outstanding (calculated on a fully fully-diluted basis)basis immediately after the issuance of the Top-Up Shares, and (C) Sub has accepted for payment all Shares validly tendered in the Offer and not withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Shares under the Securities Act. (bc) If there To exercise the Top-Up Option, Sub shall have not been validly tendered so notify the Company in writing, and not validly withdrawn that number of Shares which, when added to shall set forth in such notice (i) the number of Shares Beneficially Owned that will be owned by Parent, Merger Sub and any other their Affiliates immediately preceding the purchase of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option Shares and on such date shall give (ii) the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub place and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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 for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”). The Company shall, which shall take place at the location as soon as practicable following receipt of such notice, notify Parent and Sub in writing of the Closing specified in Section 2.2, number of Shares then outstanding and shall take place simultaneously with the Offer number of Top-Up Shares. At the Top-Up Closing, (i) Parent or Merger Sub shall pay to the Company in cash by wire transfer the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent Shares and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. (cd) Parent and Merger Sub acknowledge that the Shares which Sub may acquire upon exercise of the Top-Up Shares 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 agree represent and warrant to the Company that Sub is, or will be upon any purchase of Top-Up Shares, an “accredited investor”, as defined in Rule 501 of Regulation D under the Securities Act. Sub agrees that the Top-Up Option Option, and the Top-Up Shares to be acquired upon exercise of the Top-Up Option Option, if any, are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned owned by Parent, Merger Sub Purchaser and any other Affiliates of Parent collectively their respective affiliates at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share more than ninety percent (90%) the number of Shares necessary for Purchaser to be merged with and into the Company pursuant to Section 253 of the total DGCL at a price per Share equal to the Offer Price (a “Short Form Merger”). (b) The Top-Up Option shall be exercisable once or multiple times at any time and from time to time after the Acceptance Time and prior to the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement pursuant to Section 8.1; provided, however, that notwithstanding anything continued in this Agreement to the contrary the Top-Up Option shall not be exercisable if (i) any provision of any applicable Law or any judgment, injunction, order or decree of any Governmental Entity shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares then outstanding in respect to such exercise, (calculated on a fully diluted basis and after giving effect to ii) the issuance of the Top-Up Shares)Option Shares would require shareholder approval under the rules of Nasdaq, at a price per (iii) the number of Top-Up Share equal Option Shares would exceed the number of authorized but unissued Shares or (iv) after issuance of Shares pursuant to the Offer PriceTop-Up Option, it will be insufficient to allow Purchaser to effect the Short Form Merger and; provided, howeverfurther, that (x) in no event shall the Top-Up Option be exercisable for a number shall terminate concurrently with the termination of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and this Agreement pursuant to Section 8.1. (c) In the event Purchaser wishes to exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after Option, Purchaser shall so notify the issuance of the Top-Up Shares Company in writing, and shall set forth in such notice (i) the number of Shares owned by Parent, Merger Sub Purchaser and any other Affiliates their respective affiliates immediately preceding the purchase of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option Shares and on such date shall give (ii) the Company prior written notice specifying place and time for the number closing of the purchase of the Top-Up Option Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at (the time of such notice (after giving effect to the Offer “Top-Up Closing”). 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, notify Parent and Purchaser in writing of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub Purchaser shall pay to the Company the aggregate purchase price required to be paid for the Top-Up SharesOption Shares by delivery of, at Purchaser’s option, (A) immediately available funds by wire transfer to an account designated by the election of Parent and Merger SubCompany, in cash or by delivery of (B) a promissory note having full recourse to Parent (which shall bear simple note, bearing interest at a rate of 5% per annum 6-Month USD LIBOR Rate, and shall mature due six months after the Top-Up Closing, or (6C) months following the date of execution any combination thereof, and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub Purchaser a certificate representing the Top-Up Option Shares, which certificate may include any legends required by applicable securities Laws. (cd) Parent and Merger Sub Purchaser acknowledge that the Shares which Purchaser may acquire upon exercise of the Top-Up Shares Option will not be registered under the Securities Act U.S. securities laws and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub agree Purchaser represent and warrant to the Company that 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. Purchaser agrees that the Top-Up Option and the Top-Up Options Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, Purchaser for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby irrevocably grants to Parent and Merger Sub an irrevocable option (the “Top-Up Option”Option “), exercisable only upon the terms and conditions hereofset forth in this Section 1.5, to purchase that number of Shares (the “Top-Up Shares”Option Shares “) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) % of the total Shares then outstanding (calculated on a fully diluted basis and after giving effect to taking into account the issuance of the Top-Up Option Shares), ) at a price per Top-Up Share share equal to the Offer Price; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares (i) that would require the Company to obtain stockholder approval under applicable Law or the rules and regulations of the New York Stock Exchange (the “NYSE “), or (ii) in excess of the Company’s then authorized but and unissued Shares shares of common stock (giving effect to Shares reserved for issuance under the Company Benefit Equity Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstandingoutstanding but not giving effect to Shares reserved for issuance pursuant to the Rights, but including as authorized and unissued shares of Common Stock, for purposes of this Section 1.5, any shares held in the treasury of the Company); and (y) . Notwithstanding any other provisions to the contrary, the Top-Up Option will shall not be exercisable unless immediately exercised in the event that it would prevent the Offer, the Merger and the LLC Merger (if any) from qualifying as a reorganization within the meaning of Section 368(a) of the Code. (b) Parent or Merger Sub may exercise the Top Up Option, in whole or in part, at any time after the issuance consummation of the Top-Offer and prior to the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms; provided, that upon exercise of the Top Up Option, Parent will directly or indirectly own one share more than 90% of the Company Shares the number of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) issuance of the Shares that will then be outstanding (calculated on a fully diluted basisTop Up Option Shares). (bc) If there In the event Parent or Merger Sub wishes to exercise the Top-Up Option, Parent or Merger Sub shall have not been validly tendered so notify the Company in writing, and not validly withdrawn that number of Shares which, when added to shall set forth in such notice (i) the number of Shares Beneficially Owned that will be owned by Parent, Parent and Merger Sub and any other Affiliates immediately preceding the purchase of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying Shares, (ii) the number of Top Up Shares directly that Parent or indirectly owned by Parent, Merger Sub intends to purchase pursuant to the Top Up Option, and any other Affiliates (iii) the place and time for the closing of Parent at the time purchase of the Top-Up Option Shares, which shall not be more than five (5) Business Days after delivery of such notice (after giving effect to the Offer Closing“Top-Up Closing “). The Company shall, as soon as practicable following receipt of such notice (notice, notify Parent 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, writing of the number of Top-Up SharesShares then outstanding. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up SharesOption Shares (calculated by multiplying the number of such Top Up Option Shares by the Offer Price), at Parent’s option, through the election of Parent and Merger Sub, in cash or by delivery issuance of a promissory note having full recourse to Parent (which shall bear note, bearing simple interest at a rate of 5% five percent per annum and shall mature six (6) months following due on the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence first anniversary of the Effective Time Top Up Closing for the purchase price of such Top Up Option Shares and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the such Top-Up Option Shares, which certificate may include any legends required by applicable securities Laws. (cd) Parent and Merger Sub acknowledge that the Shares which Parent or Merger Sub may acquire upon exercise of the Top-Up Shares 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 each of Parent and Merger Sub is, and 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. Parent and Merger Sub agree 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 Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “"Top-Up Option”"), exercisable only upon the terms and conditions hereofof this Section 1.5, to purchase that number of newly- issued Shares (the “"Top-Up Shares”") equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise such exercise, shall constitute one share more than 90% of the total Shares then outstanding (after giving effect determined on a fully diluted basis and assuming the issuance of the Top-Up Shares, but excluding from Merger Sub's ownership, but not from outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee). (b) The Top-Up Option shall be exercisable once in whole and not in part on or prior to the Offer Closing)10th Business Day after Merger Sub's acceptance for payment of Shares pursuant to the Offer, would constitute provided that the number of Shares beneficially owned by Parent or Merger Sub immediately prior to the time of exercise of the Top-Up Option constitutes at least seventy-five percent (75%) of the number of shares of Company Common Stock then outstanding (excluding from Merger Sub's ownership, but not from outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) and that Merger Sub shall own, immediately after such exercise and the issuance of Top-Up Shares pursuant thereto, one Share share more than ninety percent (90%) of the total Shares number of shares of Company Common Stock then outstanding (calculated on a fully diluted basis and after giving effect excluding from Merger Sub's ownership, but not from outstanding Shares, Shares tendered pursuant to the issuance guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of the Top-Up Sharessuch guarantee), at a price per Top-Up Share equal to the Offer Price; provided, however, that (x) in no event shall the Top-Up Option be exercisable (x) for a number of Shares in excess of the Company’s then number of authorized but unissued and unreserved Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans including as authorized and pursuant to the exercise of any other securities convertible into or exchangeable into unissued Shares, if anyfor purposes of this Section 1.5, as if such any Shares were outstandingheld in the treasury of the Company); and , (y) the Top-Up Option will not be exercisable unless immediately after if the issuance of the Top-Up Shares would require approval of the Stockholders under Rule 5635 of the NASDAQ Stock Market ("NASDAQ") listing standards and a waiver of or exemption from such requirement is not obtained from NASDAQ, or (z) any other provision of applicable Law or judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Shares. Except as otherwise provided in Section 1.5(c), the aggregate amount payable to the Company for the Top-Up Shares shall be equal to the product of the number of Top-Up Shares and the Cash Consideration (the "Top-Up Consideration"). The Top-Up Option shall terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms. (c) The Top-Up Consideration shall consist of (i) an amount equal to the par value of the Top-Up Shares, to be paid in cash, and (ii) an amount equal to the balance of the Top-Up Consideration, which may be paid (x) in cash, (y) by issuance of a promissory note (which shall be treated as payment to the extent of the principal amount thereof) with full recourse to Parent or (z) by issuance of shares of Parent Common Stock valued at the Average Trading Price, or any combination of the foregoing, at Merger Sub's election. Any such promissory note shall (A) bear interest at the rate per annum equal to the prime rate as reported in The Wall Street Journal, Midwest Edition, on the date of execution and delivery of such promissory note, (B) shall mature on the first anniversary of the date of execution and delivery of such promissory note, (C) may be prepaid without premium or penalty and (D) shall provide that the unpaid principal amount and accrued interest under the promissory note shall immediately become due and payable in the event that (x) Merger Sub fails to make any payment of interest on the promissory note as provided therein and such failure continues for a period of 30 days or (y) Merger Sub files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors. (d) In the event Merger Sub exercises the Top-Up Option, Merger Sub shall so notify the Company in writing, and shall set forth in such notice (i) the number of Shares that will be owned by Parent, Parent and Merger Sub immediately preceding the purchase of the Top-Up Shares, (ii) the place and time for the closing of the purchase of the Top-Up Shares (which, subject to applicable Law and any other Affiliates of Parent (required regulatory approvals, shall be effected as promptly as practicable and not more than 2 Business Days after giving effect date such notice is delivered to the Offer ClosingCompany), (iii) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, shares of Company Common Stock that Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed intends to have exercised purchase pursuant to the Top-Up Option and on (iv) the manner in which Merger Sub intends to pay the applicable exercise price. Such notice shall also include an undertaking signed by Parent and Merger Sub that, as promptly as practicable following such date shall give exercise of the Company prior written notice specifying the number of Shares directly or indirectly owned by ParentTop-Up Option, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). The Company shall, and Parent shall cause Merger Sub to, as soon promptly as practicable following receipt after such exercise and the delivery by the Company 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, consummate the Mergers in accordance with the terms hereof (subject in the case of the Merger to Article VII and in the case of the Second Merger to Section 6.13). At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”)Shares, which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay cause to be delivered to the Company the aggregate purchase price consideration required to be paid delivered in exchange for the Top-Up Sharessuch shares, at the election of Parent and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Sharessuch shares, which certificate may include any legends required by applicable securities Laws. (ce) Parent and Merger Sub acknowledge understand that the Top-Up Shares 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. Each of Parent and Merger Sub agree represents and warrants that Merger Sub will be, upon the purchase of the Top-Up Shares, an "accredited investor," as defined in Rule 501 of Regulation D under the Securities Act. Each of Parent and Merger Sub represents, warrants and agrees that the Top-Up Option is being, and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be be, acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, to or for resale in connection with, with any distribution thereof (within the meaning of the Securities Act). (f) Parent and the Company shall use their respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and assist and cooperate with each other in doing, all things necessary or desirable to procure from NASDAQ or any other Governmental Entity any necessary waiver or other exemption from NASDAQ requirements or applicable Law in order to issue the Top-Up Shares without obtaining the approval of the Stockholders. (g) The parties agree that any dilutive impact on the value of the shares of Company Common Stock as a result of the existence or exercise of the Top-Up Option or the issuance of the Top-Up Shares, and any effect of the promissory note and Parent Common Stock referred to in Section 1.5(c) above, will not be taken into account in any determination of the fair value of any Dissenting Shares pursuant to Section 262 of the DGCL as contemplated by Section 3.5. (h) Except to the extent prohibited by applicable Law, Parent may cause the Company to deliver cash or shares of Parent Common Stock paid upon exercise of the Top-Up Option to the Exchange Agent as part of the Exchange Fund in satisfaction of the obligations of Parent and Merger Sub under Section 3.3(a) to deliver a corresponding amount of cash and shares of Parent Common Stock, and such amounts shall be included in the Cash Merger Consideration and Stock Merger Consideration, as applicable.

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Shares shares of Company Common Stock (the “Top-Up Shares”) equal to the lowest number of Shares shares of Company Common Stock that, when added to the number of Shares Beneficially Owned shares of Company Common Stock held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) % of the total Shares shares of Company Common Stock then outstanding (calculated determined on a fully diluted basis and after giving effect to assuming the issuance of the Top-Up Shares), at a price per Top-Up Share share equal to the Offer Price. (b) The Top-Up Option shall be exercisable once in whole and not in part, (x) following the expiration of the Offer or any Subsequent Offering Period and (y) prior to the fifth Business Day after the applicable expiration date of the Offer or any Subsequent Offering Period; provided, however, that the obligation of the Company to deliver the Top-Up Shares is subject to the conditions that (xi) in no event shall Restraint that has the effect of prohibiting the exercise of the Top-Up Option or preventing the issuance and delivery of the Top-Up Shares shall be in effect; (ii) the Top-Up Option shall not be exercisable for a number of Shares shares of Company Common Stock in excess of the Company’s then number of authorized but unissued Shares (giving effect to Shares reserved for issuance under the shares of Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding)Common Stock; and (yiii) Merger Sub has accepted for payment and paid for all shares of Company Common Stock validly tendered in the Offer and any Subsequent Offering Period and not withdrawn; provided further that the Top-Up Option will not be exercisable unless immediately after shall terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms. The parties shall cooperate to ensure that the issuance of the Top-Up Shares the number of Shares owned by Parentis accomplished consistent with applicable Law, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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 including compliance with an applicable exemption from registration of the Top-Up Shares (under the “Top-Up Closing”), which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. (c) Securities Act. Parent and Merger Sub acknowledge that the Top-Up Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act of 1933, as amended (together with the rules and regulations promulgated thereunder, the “Securities Act”), and will be issued in reliance upon an applicable exemption thereunder for transactions not involving a public offeringfrom registration under the Securities Act. Each of Parent and Merger Sub agree hereby represents and warrants to the Company that Merger Sub will be, upon the purchase of the Top-Up 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 Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act). (c) In the event Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall notify the Company in writing, and shall set forth in such notice (i) the number of shares of Company Common Stock that will be owned by Parent and Merger Sub immediately preceding the purchase of the Top-Up Shares and (ii) the place and time for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”). The Company shall, as soon as practicable following receipt of such notice, notify Parent and Merger Sub in writing of the number of shares of Company Common Stock then outstanding and the number of Top-Up Shares. At the Top-Up Closing, Merger Sub shall pay the Company the aggregate price required to be paid for the Top-Up Shares and the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. The aggregate price required to be paid for the Top-Up Shares or any portion thereof may be paid by Merger Sub either in cash or by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the aggregate cash purchase price for the Top-Up Shares. Any such promissory note (v) shall be full recourse against Parent and Merger Sub, (w) shall bear interest at the rate of interest per annum equal to the prime lending rate prevailing from time to time during such period as published in The Wall Street Journal, (x) shall mature on the first anniversary of the date of execution and delivery of such promissory note, (y) may be prepaid in whole or in part without premium or penalty and (z) shall have no other material terms.

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions hereofset forth in this Section 2.4, to purchase that number of Company Shares (the “Top-Up Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares Beneficially Owned held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of such exercise, shall constitute one share more than 90% of the total Company Shares then outstanding (determined on a fully diluted basis, which means the number of Company Shares then outstanding, together with all Company Shares that the Company would be required to issue pursuant to the conversion or exercise (of options, rights and securities that are then convertible into or exercisable for Company Shares, including after giving effect to the Offer ClosingSection 7.11), would constitute one Share more than ninety percent (90%) of the total Shares then outstanding (calculated on a fully diluted basis and after giving effect to assuming the issuance of the Top-Up SharesShares (such number, the “Short-Form Threshold”), at a price per Top-Up Company Share equal to the Offer Price. (b) The Top-Up Option shall be exercisable once in whole and not in part on or prior to the fifth Business Day after the later of Parent’s or Merger Sub’s acceptance for payment of Company Shares pursuant to the Offer or, if Merger Sub elects to extend the Offer for a subsequent offering period pursuant to Section 2.1(e), the expiration of any subsequent offering period under Section 2.1(e); provided, however, that (xi) in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s then number of authorized but unissued Company Shares (giving effect to Shares reserved for issuance under the including as authorized and unissued Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if anyfor purposes of this Section 2.4, as if such any Company Shares were outstanding); held in the treasury of the Company) and (yii) the Top-Up Option will shall not be exercisable unless immediately after such exercise and the issuance of the Top-Up Shares pursuant thereto, the number Short-Form Threshold would be reached; and provided further, that the Top-Up Option shall terminate upon the earlier to occur of Shares owned by Parent, Merger Sub (i) the Effective Time and any other Affiliates (ii) the termination of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis)this Agreement in accordance with its terms. (bc) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to In the number of Shares Beneficially Owned by Parent, event Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of exercises the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis)Top-Up Option, Merger Sub shall so notify the Company in writing, and shall set forth in such notice (i) the number of Company Shares that will be deemed owned by Parent and Merger Sub immediately preceding the purchase of the Top-Up Option Shares, (ii) the number of Company shares that Merger Sub intends to have exercised purchase pursuant to the Top-Up Option and on such date shall give (iii) the Company prior written notice specifying place and time for the number closing of the purchase of the Top-Up Option Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at (the time of such notice (after giving effect to the Offer “Top-Up Closing”). The Company shall, as soon as practicable following receipt of such notice (and in any event no later than the Offer Closing)notice, deliver written notice to Merger Sub specifying, based on the information provided by Parent and Merger Sub in its notice, writing confirming the number of Top-Up SharesOption Shares and the aggregate purchase price therefor. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall (and Parent shall cause Merger Sub to) pay to the Company the aggregate purchase price required to be paid for the Top-Up Option Shares, at the election of Parent and . Such aggregate price may be paid by Merger Sub, at its election, either (A) entirely in cash or (B) in cash in an amount equal to the aggregate par value of the purchased Top-Up Option Shares and by delivery of executing and delivering to the Company a full recourse unsecured promissory note issued by Merger Sub having full recourse a principal amount equal to Parent the remainder of such aggregate purchase price (which promissory note either shall be a demand note or shall have a stated maturity date of not more than three (3) months from the date of issue). Any such promissory note shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following equal to the prime lending rate prevailing during the period in which any portion of the principal amount of such promissory note remains outstanding, as published by The Wall Street Journal, calculated on a daily basis on the outstanding principal amount of such promissory note from the date such promissory note is originally issued until the date of execution payment in full of such promissory note, and delivery, may be prepaid, in whole or in part, at any time prepaid without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the . The Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Option Shares, which certificate may include any legends required by applicable securities Lawslaws (or, if the Company does not then issue Company Shares in certificated form, the applicable number of Company Shares in non-certificated book-entry form). (cd) Parent and Merger Sub acknowledge understand that the Company Shares which Merger Sub may acquire upon exercise of the Top-Up Shares 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 offeringSection 4(2) of the Securities Act and/or Rule 506 promulgated thereunder. Parent and Merger Sub agree 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 promulgated under the Securities Act. 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 Parent or Merger Sub for its own account, Purchaser for the purpose of investment and not with a view to, to or for resale in connection with, with any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Company Shares (the “Top-Up Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares Beneficially Owned owned by Parent, Merger Sub Parent and any other Affiliates of Parent collectively its Subsidiaries taken as a whole at the time of such exercise (after giving effect to the Offer Closing), would shall constitute one Share (1) share more than ninety percent (90%) of the total Fully Diluted Company Shares then outstanding at such date (calculated on a fully diluted basis and after giving effect to assuming the issuance of the Top-Up Shares), at a price per Top-Up Share equal to the Offer Price; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after the issuance of the Top-Up Shares the number of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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 ClosingAmount”)), which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with a price per Company Share equal to the Offer Closing, Price. (b) The Top-Up Option shall be exercisable once in whole and not in part (i) Parent following the applicable Expiration Date or, if a Subsequent Offering Period has been provided for, the expiration of such Subsequent Offering Period and (ii) prior to the fifth (5th) Business Day after the applicable Expiration Date or, if a Subsequent Offering Period has been provided for, the expiration of such Subsequent Offering Period; provided, however, that the exercisability of the Top-Up Option and the obligation of the Company to deliver the Top-Up Shares are subject to the conditions that (A) no Law, injunction, judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any Governmental Entity that has the effect of prohibiting the exercise of the Top-Up Option or preventing the issuance and delivery of the Top-Up Shares shall be in effect, (B) the Top-Up Option shall not be exercisable for a number of Company Shares in excess of the number of Company Shares authorized and unissued (treating Company Shares owned by the Company as treasury shares as unissued) and not otherwise reserved for issuance at the time of the exercise of the Top-Up Option, (C) Merger Sub shall pay to the Company the aggregate purchase price required to be has accepted for payment and paid for all Company Shares validly tendered in the Offer upon the expiration of the applicable Expiration Date or, if a Subsequent Offering Period has been provided for, the expiration of any Subsequent Offering Period and not withdrawn and (D) following the delivery of the Top-Up Shares, at the election of Parent and Merger Subits Subsidiaries would taken as a whole own a number of Company Shares equal to the Top-Up Amount; provided, in cash or by delivery further, that the Top-Up Option shall terminate upon the earlier to occur of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (61) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii2) the Company termination of this Agreement in accordance with its terms. The parties shall cause cooperate to be issued to Parent or Merger Sub a certificate representing ensure that the issuance of the Top-Up SharesShares is accomplished consistent with applicable Laws, which certificate may include any legends required by including compliance with an applicable securities Laws. (c) exemption from registration of the Top-Up Shares under the Securities Act. Parent and Merger Sub acknowledge that the Top-Up Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act Act, and will be issued in reliance upon an applicable exemption thereunder for transactions not involving a public offeringfrom registration under the Securities Act. Each of Parent and Merger Sub agree hereby represents and warrants to the Company that Merger Sub will be, upon the purchase of the Top-Up 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 Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act). If (x) the Top-Up Option is exercisable and (y) the Company Board or the Independent Committee requests in writing that Merger Sub exercise the Top-Up Option, then Parent shall cause Merger Sub to exercise the Top-Up Option prior to its expiration; provided, that Merger Sub shall not be required to exercise the Top-Up Option prior to the expiration of a Subsequent Offering Period that has been provided for pursuant to clause (i) of the last sentence of Section 1.1(b). (c) In the event Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall notify the Company in writing, and shall certify in such notice (i) the number of Company Shares owned by Parent and its Subsidiaries taken as a whole immediately preceding the exercise of the Top-Up Option and (ii) the place and time for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”). The Company shall, as soon as practicable following receipt of such notice, notify Parent and Merger Sub in writing of (A) the number of Company Shares then outstanding, (B) the number of Fully Diluted Company Shares (not assuming the issuance of the Top-Up Shares) with supporting detail and (C) the Company’s computation of the number of Top-Up Shares to be issued. At the Top-Up Closing, Merger Sub shall pay the Company the aggregate price required to be paid for the Top-Up Shares and the Company shall cause to be issued to Merger Sub a certificate (or evidence of book-entry ownership) representing the Top-Up Shares, which certificate (or evidence of book-entry ownership) may include any legends required by applicable Securities Laws. The aggregate price required to be paid for the Top-Up Shares or any portion thereof may be paid by Merger Sub either (1) entirely in cash or (2) by paying in cash an amount equal to not less than the aggregate par value of such Top-Up Shares and by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the balance of such purchase price for the Top-Up Shares. The Promissory Note (v) shall be full recourse against Parent and Merger Sub, (w) shall bear interest at the rate of interest per annum equal to the prime lending rate prevailing from time to time during such period as published in The Wall Street Journal, (x) shall mature on the first anniversary of the date of execution and delivery of the Promissory Note, (y) may be prepaid in whole or in part at any time without premium or penalty and (z) shall have no other material terms. (d) The Top-Up Option, the issuance of the Top-Up Shares or the payment by Merger Sub to the Company of any consideration, including the Promissory Note, for the Top-Up Shares shall not be taken into account in any determination of the fair value (as defined in Section 92A.320 of the Nevada Revised Statutes (“NRS”)) of any Dissenting Shares pursuant to NRS 92A.300 through 92A.500, inclusive, and none of the parties hereto shall take any position to the contrary in any appraisal proceeding commenced pursuant to NRS 92A.490.

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned owned by Parent, Merger Sub and any other Affiliates of Parent collectively their respective affiliates at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share more than ninety percent (90%) the number of Shares necessary for Merger Sub to be merged into the Company pursuant to Section 253 of the total Shares then outstanding Delaware General Corporation Law (calculated the “DGCL”), at a price per Share equal to the Offer Price ( a “Short Form Merger”). (b) The Top-Up Option shall only be exercisable once in whole and not in part within ten (10) Business Days after the Purchase Date; provided, however, that notwithstanding anything in this Agreement to the contrary the Top-Up Option shall not be exercisable and shall terminate on a fully diluted basis and after giving effect to the Purchase Date if (i) the issuance of the Top-Up Shares)Option Shares would require stockholder approval under the rules of Nasdaq, at a price per (ii) the number of Top-Up Share equal Option Shares would exceed the number of authorized but unissued Shares or (iii) after issuance of Shares pursuant to the Offer PriceTop-Up Option, it will be insufficient to allow Merger Sub to effect the Short Form Merger; and, provided, howeverfurther, that (x) in no event shall the Top-Up Option be exercisable for a number shall terminate concurrently with the termination of Shares this Agreement in excess of accordance with its terms. (c) In the Company’s then authorized but unissued Shares (giving effect event Merger Sub wishes to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after Option, Merger Sub shall so notify the issuance of the Top-Up Shares Company in writing, and shall set forth in such notice (i) the number of Shares owned by Parent, Merger Sub and any other Affiliates their respective affiliates immediately preceding the purchase of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option Shares and on such date shall give (ii) the Company prior written notice specifying place and time for the number closing of the purchase of the Top-Up Option Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at (the time of such notice (after giving effect to the Offer “Top-Up Closing”). The Company shall, as soon as practicable following receipt of such notice (notice, notify Parent 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, writing of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent Option Shares and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Option Shares, which certificate may include any legends required by applicable securities Laws. (cd) Parent and Merger Sub acknowledge that the Shares which Merger Sub may acquire upon exercise of the Top-Up Shares Option will not be registered under the Securities Act Laws and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub agree 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 Options Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Shares shares of Common Stock (the “Top-Up Shares”) equal to the lowest number of Shares shares of Common Stock that, when added to the number of Shares Beneficially Owned shares of Common Stock held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) % of the total Shares shares of Common Stock then outstanding (calculated determined on a fully diluted basis and after giving effect to assuming the issuance of the Top-Up Shares), at a price per Top-Up Common Share equal to the Offer Price. (b) The Top-Up Option shall be exercised by Merger Sub once in whole and not in part on or prior to the fifth Business Day after the later of the Acceptance Time and the expiration of any Subsequent Offering Period, if applicable, if at such time, Parent, Merger Sub and any Subsidiary of Parent or Merger Sub do not own in the aggregate at least 90% of the total shares of Common Stock then outstanding; provided, however, that the obligation of the Company to deliver the Top-Up Shares is subject to the conditions that (xi) in no event judgment, injunction, order or decree of any Governmental Authority shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Shares in respect of such exercise; (ii) the Top-Up Option shall not be exercisable for a number of Shares shares of Common Stock in excess of the Company’s then number of authorized but unissued Shares shares of Common Stock (giving effect to Shares reserved including as authorized and unissued shares of Common Stock, for issuance under purposes of this Section 1.5, any shares of Common Stock held in the Company Benefit Plans and pursuant to treasury of the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstandingCompany); and (yiii) Merger Sub has accepted for payment and paid for all shares of Common Stock validly tendered in the Tender Offer and not withdrawn; provided, further, that the Top-Up Option will not be exercisable unless immediately after shall terminate upon the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement in accordance with its terms. Upon exercise of the Top-Up Option, Parent covenants to cause the Closing to occur as promptly as reasonably practicable following the issuance of the Top-Up Shares. The parties shall cooperate to ensure that the issuance of the Top-Up Shares is accomplished as promptly as reasonably practicable following the number exercise of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date in a manner consistent with applicable Law, including compliance with an applicable exemption from registration of the Top-Up Shares under the Securities Act of 1933, as amended (the “Securities Act”). (c) If Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall give so notify the Company prior written in writing, and shall set forth in such notice specifying (i) the number of Shares directly or indirectly shares of Common Stock that will be owned by Parent, Parent and Merger Sub and any other Affiliates immediately preceding the purchase of Parent at the time of such notice (after giving effect to the Offer Closing). 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 , and (ii) the place and time for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing” and the date of such closing, “Top-Up Closing Date”), which shall take place at not later than five Business Days following the location Acceptance Time or the expiration of any Subsequent Offering Period. The Company shall, as soon as practicable following receipt of such notice (and in no event later than the Top-Up Closing Date), notify Parent and Merger Sub in writing of the Closing specified in Section 2.2, number of shares of Common Stock then outstanding and shall take place simultaneously with the Offer number of Top-Up Shares. At the Top-Up Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent Shares and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. (c) Parent and Merger Sub acknowledge that . The aggregate price required to be paid for the Top-Up Shares will not shall 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 paid by Merger Sub or Parent by (A) paying in cash, by wire transfer of readily available funds, an amount equal to not less than the aggregate par value of the Top-Up Shares and (B) executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the aggregate cash purchase price for the Top-Up Shares less the amount paid in cash pursuant to clause (A). The Promissory Note shall bear interest at the rate of interest per annum equal to the prime lending rate prevailing from time to time during such period as published in The Wall Street Journal, shall mature on the first anniversary of the date of execution and delivery of such promissory note and may be prepaid without premium or penalty. Merger Sub and the Company hereby agree that in any appraisal proceeding described in Section 3.4 hereof, that the fair value of the Dissenting Shares subject to the appraisal proceeding shall be determined in accordance with the DGCL without regard to the Top-Up Option, the Top-Up Shares or the Promissory Note. (d) Without the prior written consent of the Company, the right to exercise the Top-Up Option granted pursuant to this Agreement may be exercised only once and shall not be assigned by Merger Sub except in connection with an assignment in compliance with Section 9.16. Any attempted assignment in violation of this Section 1.5(d) shall be null and void. (e) From the Top-Up Shares date hereof until the Effective Time, the Company shall cause to be acquired upon reserved and kept available out of its authorized and unissued shares of Common Stock or any shares of Common Stock held in its treasury, the number of shares of Common Stock that will be sufficient to permit the exercise in full of the Top-Up Option are being and will be acquired pursuant to this Section 1.5 in addition to the number of shares reserved for issuance upon the exercise of outstanding options, rights or warrants or upon the conversion of any outstanding securities issued by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act)Company.

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereofof this Section 1.5, to purchase that number of newly-issued Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) of the total Shares then outstanding (calculated determined on a fully diluted basis if Merger Sub so elects and after giving effect to assuming the issuance of the Top-Up Shares, but excluding from Merger Sub’s ownership, but not from outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), at a price per . (b) The Top-Up Share equal Option shall be exercisable once in whole and not in part on or prior to the Offer Price10th Business Day after Merger Sub’s acceptance for payment of Shares pursuant to the Offer, provided that the number of Shares beneficially owned by Parent or Merger Sub immediately prior to the time of exercise of the Top-Up Option constitutes at least eighty three and one-half percent (83.5%) of the Shares then outstanding (excluding from Merger Sub’s ownership, but not from outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) and that Merger Sub shall own, immediately after such exercise and the issuance of Top-Up Shares pursuant thereto, one share more than ninety percent (90%) of the Shares then outstanding (excluding from Merger Sub’s ownership, but not from outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee); provided, howeverfurther, that (x) in no event shall the Top-Up Option be exercisable (x) for a number of Shares in excess of the Company’s then number of authorized but unissued Shares (giving effect to including as authorized and unissued Shares, for purposes of this Section 1.5, any Shares reserved for issuance under held in the treasury of the Company Benefit Plans and pursuant or subject to unexercised warrants or Company Stock Options) or (y) if any provision of applicable Law or judgment, injunction, order or decree shall prohibit the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option or the delivery of the Top-Up Shares. Except as otherwise provided in Section 1.5(c), the aggregate amount payable to the Company for the Top-Up Shares shall be equal to the product of the number of Top-Up Shares and the Offer Consideration (the “Top-Up Consideration”). The Top-Up Option shall terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms. (c) The Top-Up Consideration may be paid (x) in cash or (y) by issuance of a promissory note (which shall be treated as payment to the extent of the principal amount thereof) with full recourse to Parent, or a combination of the foregoing, at Merger Sub’s election; provided that the par value of any Shares issued pursuant to the Top-Up Option shall be paid in cash. Any such promissory note shall (A) bear interest at the rate per annum equal to the prime rate as reported in The Wall Street Journal on the date of execution and delivery of such promissory note, (B) shall mature on the first anniversary of the date of execution and delivery of such promissory note, (C) may be prepaid without premium or penalty and (D) shall provide that the unpaid principal amount and accrued interest under the promissory note shall immediately become due and payable in the event that (x) Merger Sub fails to make any payment of interest on the promissory note as provided therein and such failure continues for a period of thirty (30) days or (y) Merger Sub files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors. (d) In the event Merger Sub exercises the Top-Up Option, Merger Sub shall so notify the Company in writing, and shall set forth in such notice (i) the number of Shares that will not be exercisable unless owned by Parent and Merger Sub immediately after preceding the issuance purchase of the Top-Up Shares, (ii) the place and time for the closing of the purchase of the Top-Up Shares (which, subject to applicable Law and any required regulatory approvals, shall be effected as promptly as practicable and not more than two (2) Business Days after date such notice is delivered to the Company), (iii) the number of Top-Up Shares owned by Parent, to be purchased and (iv) the manner in which Merger Sub intends to pay the applicable exercise price. Such notice shall also include an undertaking signed by Parent and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates that, as promptly as practicable following such exercise of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the delivery by the Company prior written notice specifying of the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Merger in accordance with the terms hereof (in the case of the Merger, subject to Article VII). At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”)Shares, which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay cause to be delivered to the Company the aggregate purchase price consideration required to be paid delivered in exchange for the Top-Up Sharessuch shares, at the election of Parent and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Sharessuch shares, which certificate may shall include any legends required by applicable securities Laws. (ce) Parent and Merger Sub acknowledge understand that the offer and sale of the Top-Up Shares will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Each of Parent and Merger Sub agree represents and warrants that Merger Sub will be, upon the purchase of the Top-Up Shares, an “accredited investor,” as defined in Rule 501 of Regulation D under the Securities Act. Each of Parent and Merger Sub represents, warrants and agrees that the Top-Up Option is being, and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be be, acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, to or for resale in connection with, with any distribution thereof (within the meaning of the Securities Act). (f) Parent and the Company shall use their respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and assist and cooperate with each other in doing, all things necessary or desirable to procure from any Governmental Entity any necessary waiver or other exemption from applicable Law in order to issue the Top-Up Shares without obtaining the approval of the Stockholders. (g) The parties agree that any dilutive impact on the value of the Shares as a result of the existence or exercise of the Top-Up Option or the issuance of the Top-Up Shares, and any effect of the promissory note referred to in Section 1.5(c) above, will not be taken into account in any determination of the fair value of any Dissenting Shares pursuant to Chapter 13 of the California General Corporation Law (the “CGCL”) as contemplated by Section 3.5. (h) Except to the extent prohibited by applicable Law, Parent may cause the Company to deliver cash paid upon exercise of the Top-Up Option to the Paying Agent as part of the Exchange Fund in satisfaction of the obligations of Parent and Merger Sub under Section 3.3(a) to deliver a corresponding amount of cash, and such amounts shall be included in the Merger Consideration.

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase from the Company that number of Shares shares of Company Common Stock (the “Top-Up Shares”) equal to the lowest number of Shares shares of Company Common Stock that, when added to the number of Shares Beneficially Owned shares of Company Common Stock held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) % of the total Shares shares of Company Common Stock then outstanding (calculated determined on a fully diluted basis and after giving effect to assuming the issuance of the Top-Up Shares), at a price per Top-Up Share share equal to the Offer Price. (b) The Top-Up Option shall be exercisable once in whole and not in part, (x) following the expiration of the Offer or any Subsequent Offering Period and (y) prior to the fifth (5th) Business Day after the applicable expiration date of the Offer or any Subsequent Offering Period; provided, however, that the obligation of the Company to deliver the Top-Up Shares is subject to the conditions that (xi) in no event shall Restraint that has the effect of prohibiting the exercise of the Top-Up Option or preventing the issuance and delivery of the Top-Up Shares shall be in effect; (ii) the Top-Up Option shall not be exercisable for a number of Shares shares of Company Common Stock in excess of the Company’s then number of authorized but unissued Shares (giving effect shares of Company Common Stock that are not otherwise subscribed for or committed to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding)be issued; and (yiii) Merger Sub has accepted for payment and paid for all shares of Company Common Stock validly tendered in the Offer and any Subsequent Offering Period and not withdrawn; provided, further, that the Top-Up Option will not be exercisable unless immediately after shall terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms. The parties shall cooperate to ensure that the issuance of the Top-Up Shares the number of Shares owned by Parentis accomplished consistent with applicable Law, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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 including compliance with an applicable exemption from registration of the Top-Up Shares under the Securities Act of 1933, as amended (together with the rules and regulations promulgated thereunder, the “Top-Up ClosingSecurities Act”), which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. (c) . Parent and Merger Sub acknowledge that the Top-Up Shares that Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act Act, and will be issued in reliance upon an applicable exemption thereunder for transactions not involving a public offeringfrom registration under the Securities Act. Each of Parent and Merger Sub agree hereby represents and warrants to the Company that Merger Sub will be, upon the purchase of the Top-Up 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 Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act). (c) In the event Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall notify the Company in writing, and shall set forth in such notice (i) the number of shares of Company Common Stock that will be owned by Parent and Merger Sub immediately preceding the purchase of the Top-Up Shares and (ii) the place and time for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”). The Company shall, as soon as practicable following receipt of such notice, notify Parent and Merger Sub in writing of the number of shares of Company Common Stock then outstanding and the number of Top-Up Shares. At the Top-Up Closing, Merger Sub shall pay the Company the aggregate price required to be paid for the Top-Up Shares and the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. The aggregate price required to be paid for the Top-Up Shares or any portion thereof may be paid by Merger Sub either in cash or by executing and delivering to the Company a promissory note (the “Promissory Note”) having a principal amount equal to the aggregate cash purchase price for the Top-Up Shares. Any such promissory note (v) shall be full recourse against Parent and Merger Sub, (w) shall bear interest at the rate of interest per annum equal to the prime lending rate prevailing from time to time during such period as published in The Wall Street Journal, (x) shall mature on the first anniversary of the date of execution and delivery of such promissory note, (y) may be prepaid in whole or in part without premium or penalty and (z) shall have no other material terms. (d) Notwithstanding anything to the contrary contained herein, each of Parent, Merger Sub and the Company acknowledges and agrees that, in any appraisal proceeding under Section 262 of the DGCL with respect to Dissenting Shares, the Top-Up Option, the Top-Up Shares or any cash or Promissory Note delivered by Merger Sub to the Company in payment for such Top-Up Shares shall not be taken into account in connection with the determination of the fair value of the Dissenting Shares in accordance with Section 262 of the DGCL.

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon subject to the terms and conditions hereof, to purchase that number of Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned owned by Parent, Merger Sub and any other Affiliates of Parent collectively their respective affiliates at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share more than ninety percent (90%) the number of Shares necessary to effect the Merger without a meeting of stockholders of the total Shares then outstanding (calculated on a fully diluted basis and after giving effect to the issuance Company in accordance with Section 253 of the Top-Up Shares)DGCL, at a an exercise price per Top-Up Share equal to the Offer Price. (b) The Top-Up Option shall only be exercisable once in whole and not in part at any time within ten (10) business days following the Acceptance Date; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will shall not be exercisable unless immediately after and shall terminate on the Acceptance Date if (i) the issuance of the Top-Up Option Shares would require stockholder approval under the rules and regulations of the NASDAQ, (ii) the number of Top-Up Option Shares would exceed the number of authorized but unissued Shares or (iii) after the issuance of Shares pursuant to the Top-Up Option, it will be insufficient to allow Merger Sub to effect the Merger without a meeting of stockholders of the Company in accordance with Section 253 of the DGCL; and, provided, further, that the Top-Up Option shall terminate concurrently with the termination of this Agreement. (c) In the event Merger Sub wishes or is required to exercise the Top-Up Option, Merger Sub shall so notify the Company in writing and shall set forth in such notice (i) the number of Shares owned by Parent, Parent and Merger Sub and any other Affiliates immediately preceding the purchase of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option Shares and on such date shall give (ii) the Company prior written notice specifying place and time for the number closing of the purchase of the Top-Up Option Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at (the time of such notice (after giving effect to the Offer “Top-Up Closing”). The Company shall, as soon as practicable following receipt of such notice (notice, notify Parent 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, writing of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”), which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent Option Shares and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Option Shares. In the event that Merger Sub becomes the owner of 90% or more of the outstanding Shares, which certificate may include any legends required by applicable securities LawsParent shall promptly cause Merger Sub to consummate the Merger in accordance with Section 253 of the DGCL. (cd) Parent and Merger Sub acknowledge that the Shares which Merger Sub may acquire upon exercise of the Top-Up Shares Option will not be registered under the Securities Act Laws and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Merger Sub agree 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 Options Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Common Shares (the “Top-Up Shares”) equal to the lowest number of Common Shares that, when added to the number of Common Shares Beneficially Owned held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise such exercise, together with the number of Support Agreement Shares (after giving effect to the Offer Closing)if any) held in a voting trust in accordance with a Support Agreement, would shall constitute one Share share more than ninety percent (90%) % of the total Common Shares then outstanding (calculated determined on a fully diluted basis and after giving effect to assuming the issuance of the Top-Up Shares), at a price per Top-Up Common Share equal to the Offer Price. (b) The Top-Up Option shall be exercisable once in whole and not in part on or prior to the second (2nd) Business Day after the Acceptance Time or the expiration of any Subsequent Offering Period; provided, however, that the obligation of the Company to deliver the Top-Up Shares is subject to the conditions that (xi) in no event judgment, injunction, order or decree of any Governmental Entity shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Shares in respect of such exercise; (ii) the Top-Up Option shall not be exercisable for a number of Common Shares in excess of the Company’s then number of authorized but unissued Common Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans including as authorized and pursuant to the exercise of any other securities convertible into or exchangeable into unissued Shares, if anyfor purposes of this Section 1.5, as if such any Common Shares were outstandingheld in the treasury of the Company); and (yiii) Merger Sub has accepted for payment and paid for all Shares validly tendered in the Offer and not withdrawn; provided further, that the Top-Up Option will not be exercisable unless immediately after shall terminate upon the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement in accordance with its terms. The parties shall cooperate to ensure that the issuance of the Top-Up Shares the number of Shares owned by Parentis accomplished consistent with applicable Law, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) including compliance with an applicable exemption from registration of the Top-Up Shares that will then be outstanding (calculated on a fully diluted basis)under the Securities Act. (bc) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to In the number of Shares Beneficially Owned by Parent, event Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of wishes to exercise the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis)Top-Up Option, Merger Sub shall so notify the Company in writing, and shall set forth in such notice (i) the number of Common Shares that will be deemed to have exercised owned by Parent and Merger Sub immediately preceding the purchase of the Top-Up Option and on such date shall give the Company prior written notice specifying Shares, together with the number of Support Agreement Shares directly or indirectly owned by Parent(if any) held in a voting trust in accordance with a Support Agreement, Merger Sub and any other Affiliates of Parent at (ii) the place and time of such notice (after giving effect to the Offer Closing). 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 for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing” and the date of such closing, “Top-Up Closing Date”), which shall take place at not later than two (2) Business Days following the location Acceptance Time or the expiration of any Subsequent Offering Period. The Company shall, as soon as practicable following receipt of such notice (and in no event later than the Top-Up Closing Date), notify Parent and Merger Sub in writing of the Closing specified in Section 2.2, number of Shares then outstanding and shall take place simultaneously with the Offer number of Top-Up Shares. At the Top-Up Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent Shares and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable 5 securities Laws. (c) Parent and Merger Sub acknowledge that laws. The aggregate price required to be paid for the Top-Up Shares will not shall 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 paid by Merger Sub agree that or Parent by (A) paying in cash, by wire transfer of readily available funds, an amount equal to not less than the Top-Up Option and aggregate par value of the Top-Up Shares and (B) executing and delivering to be acquired upon exercise of the Company a promissory note (the “Promissory Note”) having a principal amount equal to the aggregate cash purchase price for the Top-Up Option are being Shares less the amount paid in cash pursuant to clause (A). The Promissory Note shall bear interest at the rate of interest per annum equal to the prime lending rate prevailing from time to time during such period as published in The Wall Street Journal, shall mature on the first anniversary of the date of execution and will delivery of such promissory note and may be acquired by Parent prepaid without premium or penalty. Merger Sub for its own accountand the Company hereby agree that in any appraisal proceeding described in Section 3.5 hereof, for that the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning fair value of the Securities Act)Dissenting Shares subject to the appraisal proceeding shall be determined in accordance with the DGCL without regard to the Top-Up Option, the Top-Up Shares or the Promissory Note.

The Top-Up Option. (a) The Immediately after Parent’s or Merger Sub’s acceptance for payment of Shares pursuant to the Offer (at which time, for the avoidance of doubt, the Minimum Condition will have been satisfied), the Company hereby grants shall grant to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, ) to purchase that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)exercise, would constitute one Share share more than ninety percent (90%) of the total Shares then outstanding (calculated determined on a fully diluted basis and after giving effect to including the issuance of the Top-Up Shares), at a price per Top-Up Share equal to the Offer Price. (b) The Top-Up Option shall be exercisable once in whole and not in part during the twenty (20) Business Day period immediately following Parent’s or Merger Sub’s acceptance for payment of Shares pursuant to the Offer (which includes, for the avoidance of doubt, any Subsequent Offering Period); provided, however, that (x) in no event shall the Top-Up Option be exercisable (i) for a number of Shares in excess of the Company’s then number of authorized but unissued Shares (giving effect to which shall include, for purposes of this Section 1.5, any Shares reserved for issuance under held in the Company Benefit Plans and pursuant to treasury of the exercise Company), or (ii) if the grant of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after or the issuance of the Top-Up Shares would violate applicable Law or require the number of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) approval of the Shares Company’s stockholders under applicable Law (including Nasdaq Stock Market rules and regulations, including Nasdaq Marketplace Rule 4350); and provided, further, that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option shall terminate upon the earlier to occur of (i) the Effective Time and on such date (ii) the termination of this Agreement in accordance with its terms. (c) In the event that Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall give so notify the Company prior written in writing, and shall set forth in such notice specifying (i) the number of Shares directly or indirectly that will be owned by Parent, Parent and Merger Sub and any other Affiliates immediately preceding the purchase of Parent at the time of such notice (after giving effect to the Offer Closing). 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 Shares and (ii) the place and time for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”). The Company shall, which shall take place at the location as soon as practicable following receipt of such notice, notify Parent and Merger Sub in writing of the Closing specified in Section 2.2, number of Shares then outstanding and shall take place simultaneously with the Offer number of Top-Up Shares. At the Top-Up Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent and Merger Sub’s election, (A) entirely in cash or by (B) through the issuance of a full recourse promissory note (and the delivery of an executed, unconditional continuing guarantee thereof by Parent, in a promissory note having full recourse form acceptable to Parent (which shall bear the Company), bearing simple interest at a rate of five percent (5% %) per annum and shall mature six (6) months following due on the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence first anniversary of the Effective Time Top Up Closing for the purchase price of such Top-Up Shares, and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Lawslaws. (c) Parent and Merger Sub acknowledge that the Top-Up Shares 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 agree that the Top-Up Option and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, to purchase that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing), would constitute one Share more than ninety percent (90%) of the total Shares then outstanding (calculated on a fully diluted basis excluding securities convertible into Shares pursuant to the Convertible Notes, Shares issuable upon the exercise or vesting of Company Stock Options, Company RSUs, Deferred Share Rights and the Company ESPP that will be extinguished in exchange for a cash payment pursuant to Section 6.10 and after giving effect to the issuance of the Top-Up Shares), at a price per Top-Up Share equal to the Offer Price; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after the issuance of the Top-Up Shares the number of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basisbasis excluding securities convertible into Shares pursuant to the Convertible Notes and Shares issuable upon the exercise or vesting of Company Stock Options, Company RSUs, Deferred Share Rights and shares that may be acquired pursuant to the Company ESPP that will be extinguished in exchange for a cash payment pursuant to Section 6.10). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basisbasis excluding securities convertible into Shares pursuant to the Convertible Notes and Shares issuable upon the exercise or vesting of Company Stock Options, Company RSUs, Deferred Share Rights and shares that may be acquired pursuant to the Company ESPP that will be extinguished in exchange for a cash payment pursuant to Section 6.10), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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”)Shares, which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent and Merger Sub, in cash or or, if permitted by the Company’s Credit Agreement (including after giving effect to any Clearance relating thereto), by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of five percent (5% %) per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time penalty and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Laws. (c) Parent and Merger Sub acknowledge that the Top-Up Shares 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 agree that the Top-Up Option and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof (within the meaning of the Securities Act).

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereofof this Section 1.5, to purchase that number of newly-issued Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) of the total Shares then outstanding (calculated determined on a fully diluted basis if Merger Sub so elects and after giving effect to assuming the issuance of the Top-Up Shares, but excluding from Merger Sub's ownership, but not from outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), at a price per . (b) The Top-Up Share equal Option shall be exercisable once in whole and not in part on or prior to the Offer Price10th Business Day after Merger Sub's acceptance for payment of Shares pursuant to the Offer, provided that the number of Shares beneficially owned by Parent or Merger Sub immediately prior to the time of exercise of the Top-Up Option constitutes at least eighty three and one-half percent (83.5%) of the Shares then outstanding (excluding from Merger Sub’s ownership, but not from outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) and that Merger Sub shall own, immediately after such exercise and the issuance of Top-Up Shares pursuant thereto, one share more than ninety percent (90%) of the Shares then outstanding (excluding from Merger Sub's ownership, but not from outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee); provided, howeverfurther, that (x) in no event shall the Top-Up Option be exercisable (x) for a number of Shares in excess of the Company’s then number of authorized but unissued Shares (giving effect to including as authorized and unissued Shares, for purposes of this Section 1.5, any Shares reserved for issuance under held in the treasury of the Company Benefit Plans and pursuant or subject to unexercised warrants or Company Stock Options) or (y) if any provision of applicable Law or judgment, injunction, order or decree shall prohibit the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option or the delivery of the Top-Up Shares. Except as otherwise provided in Section 1.5(c), the aggregate amount payable to the Company for the Top-Up Shares shall be equal to the product of the number of Top-Up Shares and the Offer Consideration (the “Top-Up Consideration”). The Top-Up Option shall terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms. (c) The Top-Up Consideration may be paid (x) in cash or (y) by issuance of a promissory note (which shall be treated as payment to the extent of the principal amount thereof) with full recourse to Parent, or a combination of the foregoing, at Merger Sub’s election; provided that the par value of any Shares issued pursuant to the Top-Up Option shall be paid in cash. Any such promissory note shall (A) bear interest at the rate per annum equal to the prime rate as reported in The Wall Street Journal on the date of execution and delivery of such promissory note, (B) shall mature on the first anniversary of the date of execution and delivery of such promissory note, (C) may be prepaid without premium or penalty and (D) shall provide that the unpaid principal amount and accrued interest under the promissory note shall immediately become due and payable in the event that (x) Merger Sub fails to make any payment of interest on the promissory note as provided therein and such failure continues for a period of thirty (30) days or (y) Merger Sub files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors. (d) In the event Merger Sub exercises the Top-Up Option, Merger Sub shall so notify the Company in writing, and shall set forth in such notice (i) the number of Shares that will not be exercisable unless owned by Parent and Merger Sub immediately after preceding the issuance purchase of the Top-Up Shares, (ii) the place and time for the closing of the purchase of the Top-Up Shares (which, subject to applicable Law and any required regulatory approvals, shall be effected as promptly as practicable and not more than two (2) Business Days after date such notice is delivered to the Company), (iii) the number of Top-Up Shares owned by Parent, to be purchased and (iv) the manner in which Merger Sub intends to pay the applicable exercise price. Such notice shall also include an undertaking signed by Parent and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates that, as promptly as practicable following such exercise of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on such date shall give the delivery by the Company prior written notice specifying of the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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, Merger Sub shall, and Parent shall cause Merger Sub to, consummate the Merger in accordance with the terms hereof (in the case of the Merger, subject to Article VII). At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”)Shares, which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay cause to be delivered to the Company the aggregate purchase price consideration required to be paid delivered in exchange for the Top-Up Sharessuch shares, at the election of Parent and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Sharessuch shares, which certificate may shall include any legends required by applicable securities Laws. (ce) Parent and Merger Sub acknowledge understand that the offer and sale of the Top-Up Shares will not be registered under the Securities Act of 1933, as amended (the “Securities Act”) and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Each of Parent and Merger Sub agree represents and warrants that Merger Sub will be, upon the purchase of the Top-Up Shares, an “accredited investor,” as defined in Rule 501 of Regulation D under the Securities Act. Each of Parent and Merger Sub represents, warrants and agrees that the Top-Up Option is being, and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be be, acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, to or for resale in connection with, with any distribution thereof (within the meaning of the Securities Act). (f) Parent and the Company shall use their respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, and assist and cooperate with each other in doing, all things necessary or desirable to procure from any Governmental Entity any necessary waiver or other exemption from applicable Law in order to issue the Top-Up Shares without obtaining the approval of the Stockholders. (g) The parties agree that any dilutive impact on the value of the Shares as a result of the existence or exercise of the Top-Up Option or the issuance of the Top-Up Shares, and any effect of the promissory note referred to in Section 1.5(c) above, will not be taken into account in any determination of the fair value of any Dissenting Shares pursuant to Chapter 13 of the California General Corporation Law (the “CGCL”) as contemplated by Section 3.5. (h) Except to the extent prohibited by applicable Law, Parent may cause the Company to deliver cash paid upon exercise of the Top-Up Option to the Paying Agent as part of the Exchange Fund in satisfaction of the obligations of Parent and Merger Sub under Section 3.3(a) to deliver a corresponding amount of cash, and such amounts shall be included in the Merger Consideration.

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions hereofset forth in this Section 2.4, to purchase that number of Shares shares of Company Common Stock (the “Top-Up Shares”) equal to the lowest number of Shares shares of Company Common Stock that, when added to the number of Company Shares Beneficially Owned held by Parent, Parent and Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one Share share more than ninety percent (90%) % of the total Company Shares then outstanding (calculated on a fully diluted basis outstanding, and after giving effect to assuming the issuance of the Top-Up SharesShares (such number, the “Short-Form Threshold”), at a price per Top-Up Share share of Company Common Stock equal to the Offer Price. (b) The Top-Up Option shall be exercisable once in whole and not in part on or prior to the third Business Day after the later of Parent’s or Merger Sub’s acceptance for payment of Company Shares pursuant to the Offer or, if Merger Sub elects to extend the Offer for a subsequent offering period pursuant to Section 2.1(e), the expiration of any subsequent offering period under Section 2.1(e); provided, however, that (xi) 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 then number of authorized but unissued Shares shares of Company Common Stock, (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (yii) the Top-Up Option will shall not be exercisable unless immediately after such exercise and the issuance of the Top-Up Shares pursuant thereto, the number Short-Form Threshold would be reached and (iii) the Top-Up Option shall not be exercisable if the issuance of the Top-Up Shares owned by Parent, would result in the issuance of Company Shares equal to or greater than 19.9% of the Company Shares issued and outstanding as of immediately prior to the Agreement Date unless Parent or Merger Sub and any other Affiliates of Parent (after giving effect certifies to the Offer ClosingCompany in writing that within three (3) will constitute one Share more than ninety percent (90%) Business Days following the exercise of the Shares Top-Up Option, Parent shall consummate the Merger without a meeting of the Company Shareholders in accordance with RCW 23B.11.040 (in which case, the Top-Up Option may be exercised without regard to this clause (iii); and provided, further, that will then be outstanding the Top-Up Option shall terminate upon the earlier to occur of (calculated on a fully diluted basis)x) the Effective Time and (y) the termination of this Agreement in accordance with its terms. (bc) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added to In the number of Shares Beneficially Owned by Parent, event Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of exercises the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis)Top-Up Option, Merger Sub shall so notify the Company in writing, and shall set forth in such notice (i) the number of Company Shares that will be deemed owned by Parent and Merger Sub immediately preceding the purchase of the Top-Up Shares, (ii) the number of shares of Company Common Stock that Merger Sub intends to have exercised purchase pursuant to the Top-Up Option and on such date shall give (iii) the Company prior written notice specifying the number of Shares directly or indirectly owned by Parent, Merger Sub place and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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 for the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”). The Company shall, which shall take place at as soon as practicable following receipt of such notice, deliver notice to Parent and Merger Sub in writing confirming the location number of Top-Up Shares and the Closing specified in Section 2.2, and shall take place simultaneously with aggregate purchase price therefor. At the Offer Top-Up Closing, (i) Parent or Merger Sub shall (and Parent shall cause Merger Sub to) pay to the Company the aggregate purchase price required to be paid for the Top-Up Shares, at the election of Parent and which may be paid by Merger Sub, at its election, either (A) entirely in cash or (B) in cash in an amount equal to the aggregate par value of the purchased Top-Up Shares and by delivery of executing and delivering to the Company a full recourse unsecured promissory note issued by Merger Sub having full recourse a principal amount equal to Parent the remainder of such aggregate purchase price. Any such promissory note shall have a stated maturity date of not more than three (which shall 3) months from the date of issue, bear simple interest at a rate of 5% per annum and shall mature six (6) months following equal to the prime lending rate prevailing during the period in which any portion of the principal amount of such promissory note remains outstanding, as published by The Wall Street Journal, calculated on a daily basis on the outstanding principal amount of such promissory note from the date such promissory note is originally issued until the date of execution and deliverypayment in full of such promissory note, may be prepaid, in whole or in part, at any time prepayable without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) . At the Top-Up Closing, the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up Shares, which certificate may include any legends required by applicable securities Lawslaws (or, if the Company does not then issue Company Shares in certificated form, the applicable number of Company Shares in non-certificated book-entry form). (cd) Parent and Merger Sub acknowledge understand that the shares of Company Common Stock which Merger Sub may acquire upon exercise of the Top-Up Shares 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 offeringSection 4(2) of the Securities Act and/or Rule 506 promulgated thereunder. Parent and Merger Sub agree represent and warrant to the Company that Merger Sub is, or will be upon the purchase of the Top-Up Shares, an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the Securities Act. Purchaser agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be acquired by Parent or Merger Sub for its own account, Purchaser for the purpose of investment and not with a view to, to or for resale in connection with, with any distribution thereof (within the meaning of the Securities Act). (e) In determining the fair value of any Dissenting Company Shares pursuant to Chapter 23B.13 of the WBCA in any proceedings with respect to demands for payment under Chapter 23B.13 of the WBCA in respect of Dissenting Company Shares, none of Parent, Merger Sub, the Company or the Surviving Corporation shall take into account the Top-Up Option, the Top-Up Shares or any cash paid or issued to pay any portion of the purchase price for such Top-Up Shares.

The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereofof this Section 1.04, to purchase that number of newly-issued Shares (the “Top-Up Shares”) equal to the lowest lesser of (i) the number of Shares that, when added to the number of Shares Beneficially Owned held by Parent, Merger Parent and Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing)such exercise, would shall constitute one (1) Share more than ninety percent (90%) the number of Shares necessary for Sub to be merged into the Company pursuant to Section 253 of the total Shares then outstanding DGCL (calculated on a fully diluted basis and after giving effect to the issuance of Shares pursuant to the exercise of the Top-Up SharesOption), and (ii) the aggregate number of Shares that the Company is authorized to issue under the Company Charter but that are not issued and outstanding (and are not subscribed for or otherwise committed to be issued) at a price per the time of exercise of the Top Up Option. (b) The Top-Up Share equal to Option shall be exercisable, in whole or in part at any time at or after the Offer PriceAcceptance Time; provided, however, that (x) in no event shall the Top-Up Option be exercisable (x) for a number of Shares in excess of the Company’s then number of authorized but unissued and unreserved Shares (giving effect to including as authorized and unissued Shares, for purposes of this Section 1.04, any Shares reserved for issuance under held in the Company Benefit Plans and pursuant to treasury of the Company) or (y) if any judgment, injunction, order or decree shall prohibit the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option or the delivery of the Top-Up Shares. Except as otherwise provided in Section 1.04(c), the aggregate amount payable to the Company for the Top-Up Shares shall be equal to the product of the number of Top-Up Shares and the Offer Price (the “Top-Up Consideration”). The Top-Up Option shall terminate upon the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms. (c) The Top-Up Consideration shall consist of (i) an amount equal to the par value of the Top-Up Shares, to be paid in cash, and (ii) an amount equal to the balance of the Top-Up Consideration, which may be paid in the sole discretion of Parent and Sub (x) in cash or (y) by issuance of a promissory note (which shall be treated as payment to the extent of the principal amount thereof) with full recourse to Parent, or any combination of the foregoing. Any such promissory note shall (A) accrue simple interest at the rate per annum of 5.0%, (B) shall mature on the first anniversary of the date of execution and delivery of such promissory note, (C) may be prepaid at any time and from time to time, without premium or penalty, (D) shall provide that the unpaid principal amount and accrued interest under the promissory note shall immediately become due and payable in the event that (x) Sub fails to make any payment on the promissory note as provided therein and such failure continues for a period of thirty (30) days or (y) Sub files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors, and (E) shall have no other material terms. The Company Board has determined that the Top-Up Consideration is adequate in accordance with the DGCL and otherwise taken all steps necessary such that upon issuance and delivery in accordance with this Section 1.04 the Top-Up Option Shares shall be validly issued, fully paid and non-assessable. (d) In the event Sub exercises the Top-Up Option, Sub shall so notify the Company in writing, and shall set forth in such notice (i) the number of Shares that will not be exercisable unless owned by Parent and Sub immediately after preceding the issuance purchase of the Top-Up Shares, (ii) the place and time for the closing of the purchase of the Top-Up Shares (which, subject to applicable Law and any required regulatory approvals, shall be effected as promptly as practicable and not more than two (2) business days after date such notice is delivered to the Company), (iii) the number of Shares owned by Parent, Merger shares of Company Common Stock that Sub and any other Affiliates of Parent (after giving effect intends to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis). (b) If there shall have not been validly tendered and not validly withdrawn that number of Shares which, when added purchase pursuant to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent, would constitute at least ninety percent (90%) of the total Shares outstanding at the Acceptance Time (calculated on a fully diluted basis), Merger Sub shall be deemed to have exercised the Top-Up Option and on (iv) the manner in which Sub intends to pay the applicable exercise price. Such notice shall also include an undertaking signed by Parent and Sub that Sub shall, and Parent shall cause Sub to, as promptly as practicable after such date shall give exercise of the Top-Up Option and the delivery by the Company prior written notice specifying of the number of Shares directly or indirectly owned by Parent, Merger Sub and any other Affiliates of Parent at the time of such notice (after giving effect to the Offer Closing). 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, consummate the Merger in accordance with the terms hereof. At the closing of the purchase of the Top-Up Shares (the “Top-Up Closing”)Shares, which shall take place at the location of the Closing specified in Section 2.2, and shall take place simultaneously with the Offer Closing, (i) Parent or Merger Sub shall pay cause to be delivered to the Company the aggregate purchase price required to be paid for the Top-Up SharesConsideration, at the election of Parent and Merger Sub, in cash or by delivery of a promissory note having full recourse to Parent (which shall bear simple interest at a rate of 5% per annum and shall mature six (6) months following the date of execution and delivery, may be prepaid, in whole or in part, at any time without premium or penalty, shall automatically terminate (without repayment) upon occurrence of the Effective Time and shall have no other material terms) and (ii) the Company shall cause to be issued to Parent or Merger Sub a certificate representing the Top-Up such Shares, which certificate may include any legends required by applicable securities Laws. (ce) Parent and Merger Sub acknowledge that the Top-Up Shares 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. Each of Parent and Merger Sub agree represents and warrants that Sub will be, upon the purchase of the Top-Up Shares, an “accredited investor,” as defined in Rule 501 of Regulation D under the Securities Act. Each of Parent and Sub represents, warrants and agrees that the Top-Up Option is being, and the Top-Up Shares to be acquired upon exercise of the Top-Up Option are being and will be be, acquired by Parent or Merger Sub for its own account, for the purpose of investment and not with a view to, to or for resale in connection with, with any distribution thereof (within the meaning of the Securities Act). (f) The parties agree that any dilutive impact on the value of the shares of Company Common Stock as a result of the existence or exercise of the Top-Up Option or the issuance of the Top-Up Shares, and any effect of the promissory note, will not be taken into account in any determination of the fair value of any Dissenting Shares pursuant to Section 262 of the DGCL as contemplated by Section 3.05.