Common use of The Top-Up Option Clause in Contracts

The Top-Up Option. The Company hereby grants to Acquisition Corp. an irrevocable option (the "Top-Up Option") to purchase, subject to the terms hereof, up to that number of shares of common stock, no par value per share ("Common Stock"), of the Company (the "Top-Up Option Shares") equal to the lowest number of shares of Common Stock that, when added to the number of shares of Common Stock owned by Acquisition Corp. at the time of such exercise, shall constitute one share more than 90% of the shares of Common Stock on a Fully-Diluted Basis (assuming the issuance of the Top-Up Option Shares) at a purchase price per Top-Up Option Share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise Acquisition Corp. would own more than 90% of the shares of Common Stock then outstanding and in no event shall Acquisition Corp. have the right hereunder to purchase shares of Common Stock to the extent (but only to the extent) that the exercise of Acquisition Corp.'s right to purchase shares of Common Stock hereunder would violate the rules or regulations of the Nasdaq National Market, Inc. The Company agrees to provide Acquisition Corp. with information regarding the number of authorized shares of Common Stock available for issuance on an ongoing basis.

The Top-Up Option. The Company hereby grants to Acquisition Corp. an irrevocable option (the "Top-Up Option") to purchase, subject to the terms hereof, up to that number of shares of common stock, no par value per share ("Common Stock"), of the Company (the "Top-Up Option Shares") equal to the lowest number of shares of Common Stock that, when added to the number of shares of Common Stock owned by Acquisition Corp. at the time of such exercise, shall constitute one share more than 90% of the shares of Common Stock on a Fully-Diluted Basis (assuming the issuance of the Top-Up Option Shares) at a purchase price per Top-Up Option Share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise Acquisition Corp. would own more than 90% of the shares of Common Stock then outstanding and in no event shall Acquisition Corp. have the right hereunder to purchase shares of Common Stock to the extent (but only to the extent) that the exercise of Acquisition Corp.'s right to purchase shares of Common Stock hereunder would violate the rules or regulations of the Nasdaq National Market, Inc. Inc.). The Company agrees to provide Acquisition Corp. with information regarding the number of authorized shares of Common Stock available for issuance on an ongoing basis.