Common use of Top-Up Option Clause in Contracts

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer Price, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share Share equal to the Offer Price, a up to such number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser or and Merger Sub and any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at Merger Sub immediately prior to the time of exercise of the Top-Up Option, constitutes one Common Share more than 9080% of the number of Common Shares that will be outstanding on a fully diluted basis immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may will be exercised by the Purchaser, in whole, at any time on Parent or Merger Sub immediately after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and Acceptance Time if following such Acceptance Time, Parent or Merger Sub do not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later own 80% of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actoutstanding Shares; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no 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 in respect of such exercise, (iiiii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares will not cause the Company to have more Shares outstanding than are authorized by the Restated Articles of Incorporation of the Company, and (viii) the Purchaser Merger Sub has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser an irrevocable a non-transferable, non-assignable option (the “Top-Up Option”) ), exercisable from and after the Acceptance Time only upon the terms and subject to purchasethe conditions set forth herein, to purchase from the Company, at a cash price per share equal to the value of the Offer PricePrice (with the value of the Per Share Exchange Ratio calculated as the dollar amount determined by multiplying such ratio by the closing price of a share of Parent Common Stock on NASDAQ on the last trading day prior to the exercise of the Top-Up Option), a an aggregate number of newly-issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes constitute one Common Share share more than 90% of the number of shares of Company Common Shares that will be Stock outstanding immediately after the issuance of all shares of Company Common Stock subject to the Top-Up Option; provided, however, that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of shares of Company Common Stock pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares) and all of the conditions to the Merger would be satisfied or waived, as applicable; and provided, further, that in no event shall the Top-Up Option be exercisable for a number of shares of Company Common Stock in excess of the Company’s then total authorized and unissued Shares. Upon the Purchaser’s request, the Company shall cause its transfer agent to certify in writing to the Purchaser the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of shall pay the Company to deliver Top-Up Option Shares upon the exercise aggregate par value of the Top-Up Option is subject Shares in cash and the balance of the aggregate price required to be paid for the conditions that (i) the number of Top-Up Option Shares shall be paid by delivery to be issued by the Company of a non-negotiable and non-transferable promissory note (the “Promissory Note”). The Promissory Note shall be full recourse against the Purchaser, shall be guaranteed by Parent, 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 no event exceed 19.90% The Wall Street Journal, shall mature on the first anniversary of the number date of outstanding Common execution and delivery of such Promissory Note and may be prepaid without premium or penalty. Parent, the Purchaser and the Company acknowledge and agree that, in any appraisal proceeding related to this Agreement, the fair value of the Shares subject to the appraisal proceeding shall be determined in accordance with the DGCL without regard to the exercise by Parent or the voting power of the Company, in each case, as of immediately prior to the issuance Purchaser of the Top-Up Option SharesOption, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit the Shares issued upon exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActPromissory Note.

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Acquisition Sub an irrevocable option (the “Top"TOP-Up Option”UP OPTION") to purchase, at a price per share equal to the Offer PricePer Share Amount, a number of shares of Company Common Shares Stock (the “Top"TOP-Up Option Shares”UP OPTION SHARES") that, when added EXECUTION VERSION to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser Parent, Acquisition Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Acquisition Sub at the time of exercise of the Top-Up Option, constitutes one share of Company Common Share Stock more than 90% of the number Fully Diluted Number of Common Company Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the PurchaserParent or Acquisition Sub, in wholewhole or in part, at any time on or after the first date on which the Purchaser Acquisition Sub accepts any shares of Company Common Stock for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”"ACCEPTANCE DATE") and on or prior to the fifth tenth Business Day after the later of (i) the Acceptance Date and or (ii) the expiration of any subsequent offering period under Rule 14d-11 under the Exchange ActSubsequent Offering Period; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (iiA) 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 Option Shares in respect of such exercise, (iiiB) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders Company Stockholders under applicable Law or regulation (including the NYSE including, without limitation, Nasdaq rules and regulations, including Section 4350(i)(1)(D)), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (vC) the Purchaser Acquisition Sub has accepted for payment and in accordance with Section 1.1(b) paid for all shares of Company Common Shares Stock validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesLaw, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only upon the terms and subject to the conditions set forth herein and only on or after the Appointment Time, to purchase, at a price per share equal to the Offer Price, a an aggregate number of shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares directly or indirectly owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Parent, Merger Sub and their respective subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange ActShort Form Threshold; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon shall not be exercisable unless, immediately after such exercise and the exercise issuance of shares of Company Common Stock pursuant thereto, the Top-Up Option is subject to the conditions that Short Form Threshold would be reached (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior after giving effect to the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of shares of Company Common Stock in excess of the Company’s total authorized and unissued shares of Company Common Stock (treating any Shares held in the treasury of the Company as unissued). Merger Sub may pay the Company the aggregate price required to be paid for the Top-Up Shares either (i) entirely in cash or (ii) no provision of any applicable Law and no judgmentat Merger Sub’s election, injunction, order or decree shall prohibit by (x) paying in cash an amount equal to not less than the exercise aggregate par value of the Top-Up Option or Shares and (y) executing and delivering to the delivery Company a promissory note having a principal amount equal to the balance of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares aggregate purchase price pursuant to the Top-Up Option would not require approval less the amount paid in cash pursuant to the preceding clause (x) (a “Promissory Note”). Any such Promissory Note shall be full recourse against Parent and Merger Sub and (i) shall bear interest at the rate of nine percent per annum, (ii) shall mature on the first anniversary of the Company’s shareholders under applicable Law date of execution and delivery of such Promissory Note, and (iii) may be prepaid, in whole or regulation (including in part, without premium or penalty. In the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares event that will be outstanding immediately after the issuance of the Top-Up Option Shares is exercised and (v) this Agreement is then terminated in accordance with its terms, the Purchaser has accepted for payment Promissory Note will become immediately due and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actpayable.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.04, to purchase, purchase at a price per share equal to the Offer PricePrice paid in the Offer, a that number of shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than 9080% of the number of Common Fully Diluted Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Shares (the “Short Form Threshold”); provided, that the Top-Up Option may will not be exercised by exercisable unless, immediately after such exercise and the Purchaserissuance of Top-Up Shares pursuant thereto, in whole, at any time on or the Short Form Threshold would be reached (after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant giving effect to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later issuance of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange ActTop-Up Shares); provided, howeverfurther, that (i) the obligation of the Company to deliver Top-Up Option Shares upon shall not be exercisable for a number of shares of Company Common Stock in excess of the shares of Company Common Stock authorized and unissued or held in the treasury of the Company at the time of exercise of the Top-Up Option (giving effect to the shares of Company Common Stock issuable pursuant to all then-outstanding stock options, restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding) and (ii) the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to and the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of shall not be prohibited by any Law or Order. The Top-Up Option Shares pursuant shall be exercisable only once, in whole but not in part, at any time following the Offer Closing and prior to the Top-Up Option would not require approval earliest to occur of (A) the Company’s shareholders under applicable Law or regulation (including close of business on the NYSE rules and regulations)fifth Business Day following the Offer Closing, (ivB) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares Effective Time and (vC) the Purchaser has accepted for payment and paid for all Common Shares validly tendered termination of this Agreement in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent accordance with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actits terms.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.5, to purchase, purchase at a price per share equal to the Offer Pricegreater of (i) the last reported sale price of a Share on NASDAQ on the last trading day prior to the date on which the Top-Up Option is exercised or (ii) the Closing Amount, a number of Common newly issued Shares (the “Top-Up Option Shares”) so that, when added to the number of Common Shares owned by Parent or Purchaser prior to the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more than Purchaser will own at least ninety percent (90% %) of the number outstanding shares of Common Shares that will be outstanding each class of capital stock of the Company entitled to vote on the Merger immediately after the issuance of the Top-Up Shares (not including in the Shares owned by Purchaser any Shares tendered pursuant to unfulfilled guaranteed delivery procedures); provided, however, that the Top-Up Option Sharesshall not be exercisable for the number of Shares in excess of the authorized and unissued Shares less the maximum number of Shares potentially necessary for issuance with respect to Company Equity Plan Awards or other obligations of the Company. The Top-Up Option may shall be exercised by the Purchaser, in whole, exercisable once at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to following the Offer (the “Acceptance Date”) Time and on or prior to the fifth Business Day after earlier to occur of (A) the later Effective Time and (B) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actthis Agreement in accordance with its terms; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions condition that (i) immediately following the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned in the aggregate by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the and Purchaser constitutes at least one Share share more than 90% of the number of Common Shares that will be the outstanding shares of each class of capital stock of the Company entitled to vote on the Merger immediately after the issuance of the Top-Up Option Shares (not including in the Shares owned by Purchaser any Shares tendered pursuant to unfulfilled guaranteed delivery procedures) and (vii) the Minimum Condition shall have been satisfied. Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of may assign the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entitiesand its rights and obligations pursuant to this Section 1.5, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actin its sole discretion, to Parent.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 2.5, to purchase, purchase at a price per share equal to the Offer Price, a Price paid in the Offer up to that number of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than ninety percent (90% %) of the number shares of Company Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Shares; provided, however, that (i) the Top-Up Option Sharesshall not be exercisable for a number of shares of Company Common Stock in excess of the number of shares of Company Common Stock authorized and unissued (treating shares held in the treasury of the Company as unissued) and not reserved for issuance at the time of exercise of the Top-Up Option and (ii) the exercise of the Top-Up Option and the issuance and delivery of the Top-Up Shares shall not be prohibited by any Law or Order. The Top-Up Option may shall be exercised by the Purchaser, in whole, exercisable at any one time on or after following the date on which the Purchaser accepts for payment Purchase Time and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after earlier to occur of (a) the later Effective Time and (b) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the this Agreement in accordance with its terms. The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject only to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, Legal Restraint (ii) no provision other than any listing requirement of any applicable Law and no judgment, injunction, order or decree shall prohibit national securities exchange) that has the effect of preventing the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise, exercise shall be in effect and (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (ivii) upon exercise of the Top-Up Option, the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the and Purchaser constitutes at least one Share share more than ninety percent (90% %) of the number shares of Company Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawnShares. The parties hereto acknowledge and agree that, notwithstanding anything to the contrary herein, the failure to obtain approval of the Company’s stockholders of the issuance of Company Common Stock pursuant to the Top-Up Option as a result of applicable stock exchange listing requirements shall cooperate not cause any condition of the Offer not to ensure that be met. Upon Parent’s written request, the Company shall use its reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of shares of Company Common Stock issued and outstanding as of immediately prior to the exercise of the Top-Up Option after giving effect to the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities ActShares.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.04, to purchase, purchase at a price per share equal to the Offer Price, a Price paid in the Offer up to that number of newly issued, fully paid and nonassessable shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its Subsidiaries (including Merger Sub) at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than ninety percent (90% %) of the total number of shares of Company Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by , calculated on a fully diluted basis (which assumes the Purchaserconversion or exercise of all Company Stock Options and other derivative securities and the vesting and/or exercise of all other Company Stock Awards, in wholeeach case, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later regardless of the Acceptance Date conversion or exercise price, the vesting schedule or other terms and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actconditions thereof); provided, however, that (i) the obligation of the Company to deliver Top-Up Option Shares upon shall not be exercisable for a number of shares of Company Common Stock in excess of the shares of Company Common Stock authorized and unissued of the Company at the time of exercise of the Top-Up Option (giving effect to the shares of Company Common Stock issuable pursuant to all then-outstanding Company Stock Options, Company Stock Awards and/or other share options, restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding); (ii) the exercise of the Top-Up Option is subject to and the conditions that issuance and delivery of the Top-Up Shares shall not be prohibited by any Law or Order and (iiii) the number of Company has no obligation to issue shares under the Top-Up Option Shares to be issued by unless a majority of the shares of Company Common Stock then outstanding have been tendered and not withdrawn from the Offer. Upon Parent’s request, the Company shall use its best efforts to cause its transfer agent to certify in no event exceed 19.90% of writing to Parent the number of shares of Company Common Stock outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration Law (other than any Law that requires shareholder approval for the issuance of the Top-Up Shares). The Top-Up Option Shares under shall be exercisable only once, in whole but not in part, at any time following the Securities ActOffer Closing and prior to the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement in accordance with its terms.

Top-Up Option. (a) The Company hereby grants to the Parent and Purchaser an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to for the Offer Price, a number of shares of Company Common Shares Stock (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the and Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at immediately prior to the time of exercise of the Top-Up Option, constitutes one share of Company Common Share Stock more than 90% of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares up to a maximum of 6,157,423 Shares. The Top-Up Option may be exercised by the Parent or Purchaser, in wholewhole or in part, at any time on or not more than five Business Days after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange ActExpiration Time; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (iA) the number of Top-Up Option Shares to be issued owned by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of Parent and Purchaser immediately prior to the issuance time of exercise of the Top-Up Option Sharesconstitutes no less than 87.5% of the number of shares of Company Common Stock outstanding immediately prior to the time of exercise of the Top-Up Option, (iiB) the conversion of the Five Star Note shall have occurred, (C) no provision of any applicable Law and no 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 Option Shares in respect of such exercise, (iiiD) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares will not cause the Company to have more shares of Company Common Stock issued or reserved for issuance than are authorized by the Company’s certificate of incorporation, and (vE) the Purchaser has accepted for payment and paid for all shares of Company Common Shares Stock validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesAuthorities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.

Top-Up Option. (a) The Subject to the terms and conditions set forth herein, the Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the greater of (i) the closing price of a Share on NASDAQ on the last trading day prior to the exercise of the Top-Up Option or (ii) the Offer Price, a that number of Common newly issued Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately Option (after giving effect to the issuance of the Top-Up Option SharesShares but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), shall meet the Short Form Threshold. The Top-Up Option may only be exercised one time by the Purchaser, in wholewhole but not in part, at any time on or and only if clauses (i) and (ii) of the following sentence are satisfied. Parent agrees to cause Purchaser to, and Purchaser shall, exercise the Top-Up Option promptly (but in no event later than one (1) business day) after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on Time or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 a Subsequent Offering Period, as applicable, if the number of Shares owned by Purchaser at such time does not meet the Short Form Threshold, and if and only if, after giving effect to the exercise of the Top-Up Option, (i) Purchaser would own in the aggregate Shares sufficient to meet the Short Form Threshold and (ii) the number of Top-Up Shares to be issued does not exceed the number of authorized and unissued Shares available under the Exchange ActCompany’s articles of organization (and that are not subscribed for or otherwise reserved for issuance); provided, however, that the obligation of Purchaser to exercise the Top-Up Option, and the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option Option, is subject to the conditions condition that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Applicable Law and no judgment, injunction, order or decree Order shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesApplicable Law, including compliance with an applicable exemption from registration of under the Securities Act. The Top-Up Option Shares under shall terminate concurrently with the Securities Acttermination of this Agreement.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser an irrevocable option (the “Top-Up Option”), exercisable only after the acceptance by Purchaser of, and payment for, Shares tendered in the Offer, to purchase that number (but not less than that number) to purchase, at a price per share equal to the Offer Price, a number of Common Shares (the “Top-Up Option Shares”) as is equal to the lowest number of Shares that, when added to the number of Common Shares owned directly or indirectly by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of such exercise, shall constitute one share more than 90% of the total Shares then outstanding (assuming the issuance of the Top-Up Shares) at a price per Share equal to the Offer Price; provided, however, that (i) the Top-Up Option shall be exercisable only once, at such time as Parent and Purchaser, directly or indirectly, own at least 80% of the total number of Shares then outstanding and on or prior to the 10th Business Day after the Expiration Date or the expiration date of any subsequent offering period; (ii) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized and unissued shares of Common Stock (including, for purposes of this Section 1.05, as authorized and unissued shares of Common Stock any Shares held in the treasury of the Company); (iii) Purchaser shall, concurrently with the exercise of the Top-Up Option, constitutes one Common Share more than 90% give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (and Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the number of Common Shares that will be outstanding immediately after the issuance of Corporation Law as contemplated by Section 2.09; and (iv) the Top-Up Option Shares. The Top-Up Option may not be exercised by the Purchaser, in whole, at if any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of applicable law (which, for the avoidance of doubt, does not include the rules and regulations of NASDAQ which shall not apply) or any applicable Law and no judgment, injunction, order or decree shall prohibit prohibit, or require any action or consent, approval, authorization or permit of any Governmental Entity or the Company’s stockholders in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would which action, consent, approval, authorization or permit has not require approval of the Company’s shareholders under applicable Law theretofore been obtained or regulation (including the NYSE rules and regulations)made, (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actas applicable.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only upon the terms and subject to purchasethe conditions set forth in this Section 1.8, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or and the Purchaser at the time of such exercise, shall constitute one share more than 90% of the Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that the Top-Up Option shall not be exercisable unless, (i) the Minimum Condition shall have been satisfied and (ii) immediately after such exercise and the issuance of Shares pursuant thereto, the Purchaser reasonably believes that the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then total authorized and unissued Shares, excluding any Shares that are reserved or otherwise committed for issuance. Upon Parent’s request, the Company shall use commercially reasonable efforts to cause its transfer agent to certify in writing to Parent the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately Option and after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of shall pay the Company the aggregate price required to deliver be paid for the Top-Up Option Shares upon in cash for the exercise of the Top-Up Option is subject amount equal to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance aggregate par value of the Top-Up Option Shares, with the balance payable by delivery of a non-negotiable and non-transferable promissory note (ii) no provision of any applicable Law and no judgment, injunction, order or decree the “Promissory Note”). The Promissory Note shall prohibit the exercise of be secured by the Top-Up Option or Shares, be full recourse against Parent and the delivery of Purchaser, be due one year from the date the Top-Up Option Shares in respect are issued and bear interest at the rate of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law 5% per annum and may be prepaid without premium or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actpenalty.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only after the acceptance by Merger Sub of, and payment for, Shares tendered in the Offer, to purchase that number (but not less than that number) of Shares (the “Top-Up Shares”) as is equal to purchasethe lowest number of Shares that, when added to the number of Shares owned by Purchaser, Merger Sub and any Subsidiaries or Affiliates of Purchaser or Merger Sub, taken as a whole, at the time of such exercise, shall constitute one share more than 90% of the total shares of Company Common Stock then outstanding (assuming the issuance of the Top-Up Shares) at a price per share equal to the Offer Price; provided, a number of Common Shares however, that (i) in no event shall the “Top-Up Option Shares”be exercisable (x) that, when added to the for a number of shares of Company Common Shares owned Stock in excess of the Company’s then authorized and unissued shares of Common Stock (including as authorized and unissued shares of Common Stock, for purposes of this Section 1.5, any shares of Company Common Stock held in the treasury of the Company), or (y) if the issuance of shares of Company Common Stock by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary Company in connection with the exercise of Parent or the Purchaser at Top-Up Option by Merger Sub would violate applicable Nasdaq rules, (ii) Merger Sub shall, concurrently with the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% give written notice to the Company that as promptly as practicable following such exercise, Merger Sub shall (and Purchaser shall cause Merger Sub to) consummate the Merger in accordance with Section 253 of the number of Common Shares that will be outstanding immediately after the issuance of Delaware GCL as contemplated by this Agreement, and (iii) the Top-Up Option Shares. The Top-Up Option may not be exercised by the Purchaser, in whole, at if any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of applicable law or any applicable Law and no judgment, injunction, order or decree of any federal, state, provincial, local and foreign government, governmental, quasi-governmental, supranational, regulatory or administrative authority, agency, commission or any court, tribunal, or judicial or arbitral body (each, a “Governmental Entity”) shall prohibit prohibit, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Entity or the Company’s stockholders in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would which action, consent, approval, authorization or permit, action, filing or notification has not require approval of the Company’s shareholders under applicable Law theretofore been obtained or regulation (including the NYSE rules and regulations)made, (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actas applicable.

Top-Up Option. (a) The Subject to this Section 2.3, the Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) to purchase, purchase at a price per share of Company Common Stock equal to the Offer Per Share Amount (the “Top-Up Share Price”), a number (but not less than that number) of Common newly issued Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares beneficially owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares, provided, that in no event will such number of Shares exceed the number of authorized and unissued Shares not otherwise reserved for issuance for outstanding Company Stock Options or Company Restricted Share Units or other obligations of the Company. The Top-Up Option may be exercised by the Purchaserexercised, in wholewhole but not in part, at any one time on or after the date on which the Purchaser accepts for payment Acceptance Date and pays for all Common Shares validly tendered and not validly withdrawn pursuant prior to the Offer earliest to occur of (i) the “Acceptance Date”Effective Time, (ii) and on the termination of this Agreement in accordance with Article VIII, or prior to (iii) the occurrence of the fifth Business Day after following the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange ActExpiration Date; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (iiA) no provision of any applicable Law law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of any Governmental Authority prohibits such exercise, (iiiB) at the issuance time of Top-Up Option Shares pursuant to the Top-Up Option would not require approval exercise, Purchaser owns more than 50% of the Company’s shareholders under applicable Law or regulation (including Fully Diluted Shares but less than 90% of the NYSE rules and regulations)Shares then-outstanding, (ivC) upon exercise of the Top-Up Option, the number of Common Shares owned owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares, (D) the number of Top-Up Option Shares issued pursuant to the Top-Up Option may in no event exceed the number of authorized and unissued Shares not otherwise reserved for issuance for outstanding Company Stock Options or other obligations of the Company, and (vE) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only upon the terms and subject to the conditions set forth herein and only on or after the Appointment Time, to purchase, at a price per share equal to the Offer Price, a an aggregate number of shares of Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares directly or indirectly owned by Parent or the Parent, Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and their respective Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than ninety percent (90% %) of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares on a fully diluted basis; provided, however, that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of shares of Common Stock pursuant thereto, the Short Form Threshold would be reached (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate after giving effect to ensure that the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of shares of Common Stock in excess of the Company’s total authorized and unissued shares of Common Stock (treating any Shares is accomplished consistent with all applicable legal requirements held in the treasury of all Governmental Entitiesthe Company as unissued). Purchaser may pay the Company the aggregate price required to be paid for the Top-Up Shares either (i) entirely in cash or (ii) at Purchaser’s election, including compliance with by (x) paying in cash an applicable exemption from registration amount equal to not less than the aggregate par value of the Top-Up Shares and (y) executing and delivering to the Company a promissory note having a principal amount equal to the balance of the aggregate purchase price pursuant to the Top-Up Option Shares under less the Securities Actamount paid in cash pursuant to the preceding clause (x) (a “Promissory Note”). Any such Promissory Note shall be full recourse against Parent and Purchaser and (i) shall bear interest at the rate of nine percent (9%) per annum, (ii) shall mature on the first (1st) anniversary of the date of execution and delivery of such Promissory Note and (iii) may be prepaid, in whole or in part, without premium or penalty.

Top-Up Option. (a) The Company hereby grants to the Purchaser MergerSub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer Price, a number (but not less than that number) of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) that, when added to the number of shares of Company Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser Parent, MergerSub or any direct or indirect wholly owned Subsidiary of the other Parent or the Purchaser Subsidiaries, at the time of exercise of the Top-Up Option, constitutes one share of Company Common Share Stock more than ninety percent (90% %) of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaserexercised, in wholewhole but not in part, at any one time on or after the date on which the Purchaser MergerSub accepts for payment and pays for all shares of Company Common Shares Stock validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after earlier to occur of (1) the later Effective Time and (2) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actthis Agreement in accordance with Section 8.01; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (ivA) upon exercise of the Top-Up Option, the number of shares of Company Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser MergerSub constitutes one Share share of Company Common Stock more than ninety percent (90% %) of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares and (vB) the Purchaser has accepted for payment and paid for all Common number of Top-Up Option Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate issued pursuant to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements shall in no event exceed the number of all Governmental Entities, including compliance with an applicable exemption from registration authorized and unissued shares of the Top-Up Option Shares under the Securities ActCompany Common Stock not otherwise reserved for issuance.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only once and only upon the terms and subject to purchasethe conditions set forth in this Section 1.4, and only for so long as this Agreement has not been terminated pursuant to Section 7.1, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of validly issued, fully paid and nonassessable shares of Company Common Shares Stock (the “Top-Up Option Shares”) that, when added equal to up to the number of then-available authorized and unissued shares of Company Common Stock; provided, however, that the Top-Up Option shall not be deemed to be exercised (i) to purchase an amount of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Company as treasury stock as unissued) at the time of exercise of the Top-Up OptionOption (treating shares of Company Common Stock issuable pursuant to all then-outstanding stock options, constitutes one restricted stock units and any other rights to acquire Company Common Share more than 90% of the number of Common Shares that will be outstanding Stock as if such shares were outstanding), (ii) unless immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment such exercise and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, Purchaser and Parent shall, when added to the shares of Company Common Stock owned by Purchaser and Parent, own at least 90% of the shares of the Company Common Stock outstanding (iiexcluding from the calculation of the number of shares of Company Common Stock Purchaser and Parent then owns, but not from the calculation of then-outstanding shares of Company Common Stock, the Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) no provision of any applicable Law and no judgmentimmediately after the Acceptance Time (the “Short-Form Threshold”), injunction(iii) unless the Acceptance Time shall have occurred, order or decree shall prohibit the exercise (iv) unless Purchaser irrevocably commits upon acquisition of the Top-Up Option or Shares to immediately effect the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares Merger pursuant to Section 2.3 and (v) if the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance and delivery of the Top-Up Option Shares and compliance with this Section 1.4 shall be prohibited by any outstanding order or Law (v) excluding any rules of Nasdaq that require stockholder approval). Purchaser shall pay the Purchaser has accepted for payment and Company the aggregate purchase price required to be paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actas set forth in Section 1.4(b).

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.3, to purchase, purchase at a price per share equal to the Offer Price, a Price paid in the Offer up to that number of Common newly issued Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Common Company Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Buyer and its Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than 90% of the number of Common Company Shares that will be outstanding immediately after the issuance of the Top-Up Shares on a “fully diluted basis” (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof); provided, however, that (i) the Top-Up Option Sharesshall not be exercisable for a number of Company Shares in excess of the Company Shares authorized (whether unissued or held in the treasury of the Company) at the time of exercise of the Top-Up Option (giving effect to the Company Shares issuable pursuant to all then-outstanding stock options, restricted stock units and any other rights to acquire Company Shares as if such shares were outstanding) and (ii) the exercise of the Top-Up Option and the issuance and delivery of the Top-Up Shares shall not be prohibited by any Law (which, for the avoidance of doubt, shall not include the rules of NASDAQ) or judgment, order, writ, injunction, decree or award of any Governmental Entity. The Top-Up Option may shall be exercised by the Purchaser, in whole, exercisable at any one time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to following the Offer (the “Acceptance Date”) Closing and on or prior to the fifth Business Day after earlier to occur of (a) the later Effective Time and (b) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the this Agreement in accordance with its terms. The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject only to the conditions condition that no Legal Restraint (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision other than any listing requirement of any applicable Law and no judgment, injunction, order or decree shall prohibit national securities exchange) that has the effect of preventing the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exerciseexercise shall be in effect. The parties hereto acknowledge and agree that, (iii) notwithstanding anything to the contrary herein, the failure to obtain approval of the Company’s shareholders of the issuance of Top-Up Option Company Shares pursuant to the Top-Up Option would as a result of applicable stock exchange listing requirements shall not require approval cause any condition of the CompanyOffer not to be met. Upon Buyer’s shareholders under applicable Law or regulation (including written request, the NYSE rules Company shall use its reasonable best efforts to cause its transfer agent to certify in writing to Buyer the number of Company Shares issued and regulations), (iv) upon outstanding as of immediately prior to the exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately Option after giving effect to the issuance of the Top-Up Option Shares. Subject to the terms and conditions hereof, and for so long as this Agreement has not been terminated pursuant to the provisions hereof, the Company agrees that it shall maintain out of its existing authorized capital, free from preemptive rights, sufficient authorized but unissued Company Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate issuable pursuant to ensure this Agreement so that the issuance of the Top-Up Option may be exercised, after giving effect to the Company Shares is accomplished consistent with issuable pursuant to all applicable legal requirements of all Governmental Entitiesother then-outstanding stock options, including compliance with an applicable exemption from registration of the Top-Up Option restricted stock units and any other rights to acquire Company Shares under the Securities Actas if such shares were outstanding.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only upon the terms and subject to purchasethe conditions set forth herein, to purchase from the Company at a price per share equal to the Offer Price, a Price an aggregate number of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or and the Purchaser at the time of such exercise, shall constitute one share more than 90% of the Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that the Top-Up Option shall not be exercisable unless, (i) the Minimum Condition shall have been satisfied and (ii) immediately after such exercise and the issuance of shares of Company Common Stock pursuant thereto, the Purchaser reasonably believes that the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then total authorized and unissued Shares. Upon Parent’s request, the Company shall use commercially reasonable efforts to cause its transfer agent to certify in writing to Parent the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately Option and after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of shall pay the Company to deliver Top-Up Option Shares upon the exercise aggregate par value of the Top-Up Option is subject Shares in cash and the balance of the aggregate price required to be paid for the conditions that (i) the number of Top-Up Option Shares by delivery of a promissory note (the “Promissory Note”). The Promissory Note shall be full recourse against Parent and Purchaser, be due one year from the date the Top-Up Option Shares are issued and bear interest at a per annum rate equal to the prime lending rate prevailing from time to time during such period as published in The Wall Street Journal and may be issued by prepaid at any time without premium or penalty. Parent, the Purchaser and the Company shall acknowledge and agree that, in no event exceed 19.90% any appraisal proceeding related to this Agreement, the fair value of the number of outstanding Common Shares subject to the appraisal proceeding shall be determined in accordance with the DGCL without regard to the exercise by Parent or the voting power of the Company, in each case, as of immediately prior to the issuance Purchaser of the Top-Up Option SharesOption, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit the Shares issued upon exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActPromissory Note.

Top-Up Option. (a) The Subject to Sections 1.6(b) and 1.6(c), the Company hereby grants to the Purchaser Acquisition Sub an irrevocable option (the “Top-Up Option”) ), exercisable subject to purchaseand upon the terms and conditions set forth in this Section 1.6 and for so long as this Agreement has not been terminated pursuant to Section 7, to purchase from the Company at a price per share equal to the Offer Price, a that number of Common authorized and unissued Company Shares (the “Top-Up Option Company Shares”) equal to the number of Company Shares that, when added to the number of Common Company Shares directly or indirectly owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Acquisition Sub at the time of exercise of the Top-Up Optionsuch exercise, constitutes shall constitute one Common Share share more than 90% of the number of Common then outstanding Company Shares that will be outstanding immediately after (taking into account the issuance of the Top-Up Option Company Shares. The Top-Up Option may be exercised by the Purchaser, ); provided that in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of no event shall the Top-Up Option is subject to the conditions that (i) the be exercisable for a number of Top-Up Option Company Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power excess of the Company, in each case, as of immediately prior ’s then authorized and unissued Company Shares (giving effect to Company Shares reserved for issuance under the issuance Company Stock Plans and for conversion of the Top-Up Option SharesCompany Convertible Notes as if such shares were outstanding) or if any Legal Requirement (not including NYSE rules and regulations) shall prohibit, (ii) no provision of or require any applicable Law and no judgmentaction, injunctionconsent, order approval, authorization or decree shall prohibit permit of, action by, or filing with or notification to, any Governmental Entity in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Company Shares pursuant to the Top-Up Option would in respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not require approval of the Company’s shareholders theretofore been obtained or made, as applicable (other than notice filings that may be required under applicable Law federal or regulation (including the NYSE rules and regulationsstate securities laws), (iv) upon exercise of . The aggregate purchase price for the Top-Up Option, Option Company Shares purchased by Acquisition Sub pursuant to the number of Common Shares owned Top-Up Option shall be paid by Parent the Acquisition Sub or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or Parent, either (i) entirely in cash or, at its election, (ii) by paying in cash an amount equal to not less than the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance aggregate par value of the Top-Up Option Company Shares and (v) by executing and delivering to the Purchaser has accepted for payment and paid for all Common Shares validly tendered in Company a promissory note having a principal amount equal to the Offer and not validly withdrawn. The parties shall cooperate aggregate purchase price pursuant to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements Option. Any such promissory note shall bear interest at the rate of all Governmental Entities3% per annum, including compliance with an applicable exemption from registration shall mature on the first anniversary of the Top-Up Option Shares under date of execution and delivery of such promissory note and may be prepaid, in whole or in part, without premium or penalty. Notwithstanding the Securities Actforegoing sentence, the terms and provisions of the promissory note shall be such that the promissory note can be sold to an unrelated third party without a discount.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.04, to purchase, purchase at a price per share equal to the Common Offer Price, a Price paid in the Offer up to that number (but not less than that number) of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub and their respective Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute no less than one Common Share share more than 90% of the number shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may shall be exercised by the Purchaserexercisable only once, in wholewhole but not in part, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to following the Offer (the “Acceptance Date”) Closing and on or prior to the fifth Business Day after earlier to occur of (A) the later Effective Time and (B) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actthis Agreement in accordance with its terms; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of shares of Company Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes Merger Sub and their respective Subsidiaries shall constitute no less than one Share share more than 90% of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares and Shares; (vii) the Purchaser has Top-Up Option shall not be exercisable for a number of shares of Company Common Stock in excess of the shares of Company Common Stock authorized and unissued or held in the treasury of the Company at the time of exercise of the Top-Up Option (giving effect to the shares of Company Common Stock issuable pursuant to all then-outstanding restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding); (iii) Merger Sub shall have accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that ; and (iv) the issuance exercise of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration and the issuance and delivery of the Top-Up Option Shares under the Securities Actshall not be prohibited by any Law or Order.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser an irrevocable option (option, exercisable from and after the “Top-Up Option”) Acceptance Time only upon the terms and subject to purchasethe conditions set forth herein, to purchase from the Company, at a price per share equal to the Offer Price, a an aggregate number of newly-issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes constitute one Common Share share more than 90% of the number of shares of Company Common Shares that will be Stock outstanding immediately after the issuance of all shares of Company Common Stock subject to the Top-Up Option (the “Top-Up Option”); provided, however, that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of shares of Company Common Stock pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of shares of Company Common Stock in excess of the Company’s then total authorized and unissued Shares. Upon the Purchaser’s request, the Company shall cause its transfer agent to certify in writing to the Purchaser the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of shall pay the Company to deliver Top-Up Option Shares upon the exercise aggregate par value of the Top-Up Option is subject Shares in cash and the balance of the aggregate price required to be paid for the conditions that (i) the number of Top-Up Option Shares by delivery of a non-negotiable and non-transferable promissory note (the “Promissory Note”). The Promissory Note shall be full recourse against the Purchaser, shall be guaranteed by Parent, 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 issued by prepaid without premium or penalty. Parent, the Purchaser and the Company shall acknowledge and agree that, in no event exceed 19.90% any appraisal proceeding related to this Agreement, the fair value of the number of outstanding Common Shares subject to the appraisal proceeding shall be determined in accordance with the DGCL without regard to the exercise by Parent or the voting power of the Company, in each case, as of immediately prior to the issuance Purchaser of the Top-Up Option SharesOption, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit the Shares issued upon exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActPromissory Note.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.04, to purchase, purchase at a price per share equal to the Offer Price, a Price paid in the Offer up to that number (but not less than that number) of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub and their respective Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute no less than one Common Share share more than 90% of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may shall be exercised by the Purchaserexercisable only once, in wholewhole but not in part, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to following the Offer (the “Acceptance Date”) Closing and on or prior to the fifth Business Day after earlier to occur of (A) the later Effective Time and (B) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actthis Agreement in accordance with its terms; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of shares of Company Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes Merger Sub and their respective Subsidiaries shall constitute no less than one Share share more than 90% of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares and Shares; (vii) the Purchaser has Top-Up Option shall not be exercisable for a number of shares of Company Common Stock in excess of the shares of Company Common Stock authorized and unissued or held in the treasury of the Company at the time of exercise of the Top-Up Option (giving effect to the shares of Company Common Stock issuable pursuant to all then-outstanding stock options, restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding), (iii) at the time of exercise, Merger Sub shall have accepted for payment and paid for all shares of Company Common Shares Stock validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that , and (iv) the issuance exercise of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration and the issuance and delivery of the Top-Up Option Shares under the Securities Actshall not be prohibited by any Law or Order.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only upon the terms and subject to the conditions set forth herein, to purchase, at a price per share equal to the Offer Price, a an aggregate number of newly issued shares of Common Shares Stock (the “Top-Up Option Shares”) equal to the lesser of (i) one (1) share less than twenty percent (20%) of the shares of Common Stock issued and outstanding immediately prior to the exercise of the Top-Up Option and (ii) the lowest number of shares of Common Stock that, when added to the number of shares of Common Shares Stock then owned by Parent or the Parent, Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and their respective Subsidiaries and affiliates at the time of exercise such exercise, shall constitute ten thousand (10,000) shares more than ninety percent (90%) of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be Stock then outstanding immediately on a fully diluted basis (after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior giving effect to the issuance of the Top-Up Option Shares); provided, however, that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of shares of Common Stock pursuant thereto, the Short Form Threshold would be reached (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit after giving effect to the exercise issuance of the Top-Up Option or Shares); provided, further, that in no event shall the delivery Top-Up Option be exercisable for a number of shares of Common Stock in excess of the Company’s total authorized but unissued shares of Common Stock. The Purchaser may pay the Company the aggregate price required to be paid for the Top-Up Option Shares either (i) entirely in respect of such exercisecash or (ii) at the Purchaser’s election, by (iiix) paying in cash an amount equal to not less than the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance aggregate par value of the Top-Up Option Shares and (vy) executing and delivering to the Purchaser has accepted for payment and paid for all Common Shares validly tendered in Company a promissory note having a principal amount equal to the Offer and not validly withdrawn. The parties shall cooperate aggregate purchase price pursuant to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements less the amount paid in cash pursuant to the preceding clause (x) (a “Promissory Note”). Any such Promissory Note shall be full recourse against Parent and the Purchaser and (i) shall bear interest at the rate of all Governmental Entitiessix percent (6%) per annum, including compliance with an applicable exemption from registration (ii) shall mature on the first (1st) anniversary of the Top-Up Option Shares under the Securities Actdate of execution and delivery of such Promissory Note and (iii) may be prepaid, in whole or in part, without premium or penalty.

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer Per Share Amount (the “Per Common Share Price”), a up to that number of newly issued shares of Common Shares Stock (the “Top-Up Option Shares”) that, when added not to exceed 19.9% of the number of shares of Common Shares owned Stock outstanding on the Acceptance Date such that the sum of (A) the number of shares of Common Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option (excluding shares of Common Stock tendered in the Offer pursuant to guaranteed delivery procedures as to which delivery has not been completed as of the time of exercise of the Top-Up Option, constitutes ) and (B) such number of Top-Up Option Shares equals one share of Common Share Stock more than 90% of the sum of (x) the total number of shares of Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Option SharesShares and (y) the total number of shares of Common Stock that are issuable within ten Business Days after the issuance of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof but not giving effect to any shares of Common Stock reserved for issuance pursuant to the Rights, to the extent the Rights Agreement is then in effect. The Top-Up Option may be exercised by once during the Purchaser, in whole, at any time on or after 20 Business Day period following the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iiiii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of by the Company’s shareholders stockholders under applicable Law or regulation (including the NYSE rules and regulations)Law, (iviii) upon immediately after the exercise of the Top-Up Option and issuance of the Top-Up Option Shares, the number of shares of Common Stock owned, directly or indirectly, by Parent or Merger Sub (excluding shares of Common Stock tendered in the Offer pursuant to guaranteed delivery procedures as to which delivery has not been completed as of the time of exercise of the Top-Up Option, the number ) constitutes one share of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share Stock more than 90% of the total outstanding shares of Common Stock and (iv) the number of Common Top-Up Option Shares that will be outstanding immediately after the issuance of issued pursuant to the Top-Up Option Shares shall in no event exceed the number of authorized and (v) unissued shares of Common Stock not otherwise reserved for issuance for outstanding Company Stock Options or other obligations of the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawnCompany. The parties Parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesLaws, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act of 1933, as amended (the “Securities Act”). Parent and Merger Sub acknowledge that the shares of Common Stock 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 each agree that the Top-Up Option and the Top-Up Option Shares are being and will be acquired by 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).

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only from and after the Acceptance Time upon the terms and subject to purchasethe conditions set forth herein, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares owned Stock owned, directly or indirectly, by Merger Sub or Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of such exercise, shall constitute one share more than 90% of the shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of shares of Company Common Stock pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of shares of Company Common Stock in excess of the Company’s then total authorized and unissued shares of Company Common Stock (treating shares of Company Common Stock owned by the Company as treasury stock as unissued). Upon Parent’s request, the Company shall use commercially reasonable efforts to cause its transfer agent to certify in writing to Parent the number of shares of Company Common Stock issued and outstanding as of immediately prior to the exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately Option and after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of Merger Sub shall pay the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 aggregate par value of the Top-Up Option Shares in respect of such exercise, (iii) cash and the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval balance of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will aggregate price required to be outstanding immediately after the issuance of paid for the Top-Up Option Shares and by delivery of a promissory note (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn“Promissory Note”). The parties Promissory Note shall cooperate be full recourse against Merger Sub, shall be guaranteed by Parent and shall bear interest at the rate of interest per annum equal to ensure that the issuance 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 Top-Up Option Shares is accomplished consistent with all applicable legal requirements date of all Governmental Entitiesexecution and delivery of such Promissory Note and may be prepaid without premium or penalty; provided, including compliance with an applicable exemption from registration however, upon any event of the Top-Up Option Shares default under the Securities ActPromissory Note, all principal and accrued interest thereunder shall immediately become due and payable.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.04, to purchase, at a price per share equal to the Offer PricePrice paid in the Offer, up to a number of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) which is equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or Parent, Merger Sub and any direct or indirect wholly owned Subsidiary subsidiary of Parent (other than treasury shares or shares in trust accounts, managed accounts and the Purchaser like, or otherwise held in a fiduciary or agency capacity for the benefit of customers or clients) immediately prior to the exercise of the Top-Up Option, shall constitute one share more than eighty percent (80%) of the shares of Company Common Stock outstanding immediately after the issuance of the Top-Up Shares on a fully diluted basis (meaning, for this purpose, assuming the conversion, exchange or exercise of all then-outstanding warrants, options, securities, rights or other instruments convertible or exchangeable into, or exercisable for, shares of Company Common Stock, whether or not then convertible, exchangeable or exercisable, regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) but not less than one share more than eighty percent (80%) of the number of shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Shares); provided, however, that (i) the Top-Up Option shall not be exercisable for a number of shares of Company Common Stock in excess of the shares of Company Common Stock authorized and unissued or held in the treasury of the Company at the time of exercise of the Top-Up OptionOption (giving effect to the shares of Company Common Stock issuable pursuant to all then-outstanding stock options, constitutes one restricted stock, performance shares and any other rights to acquire Company Common Share more than 90% of Stock as if such shares were outstanding) and (ii) the number of Common Shares that will Top-Up Option shall not be outstanding immediately after exercisable if either the issuance exercise of the Top-Up Option Sharesand the issuance and delivery of the Top-Up Shares shall be prohibited by any applicable law. The Top-Up Option may be exercised by the Purchaser, in wholewhole or in part, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to following the Offer (the “Acceptance Date”) Closing and on or prior to the fifth Business Day after the later earlier to occur of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (iA) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, Effective Time and (ii) 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 Option Shares in respect of such exercise, (iiiB) the issuance termination of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered this Agreement in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent accordance with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actits terms.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser an irrevocable a non-transferable, non-assignable option (the “Top-Up Option”) ), exercisable from and after the Acceptance Time only upon the terms and subject to purchasethe conditions set forth herein, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned of record by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of such exercise, shall constitute one (1) share more than 90% of the Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares) and all of the conditions to the Merger would be satisfied; provided, further, that in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then total authorized and unissued Shares. Upon the Purchaser’s request, the Company shall cause its transfer agent to certify in writing to the Purchaser the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately Option and after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of shall pay the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 aggregate par value of the Top-Up Option Shares in respect of such exercise, (iii) cash and the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval balance of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will aggregate price required to be outstanding immediately after the issuance of paid for the Top-Up Option Shares and shall be paid by delivery to the Company of a promissory note (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered “Promissory Note”). The Promissory Note shall be substantially in the Offer form of Exhibit A hereto and not validly withdrawn. shall be full recourse against the Purchaser, shall be guaranteed by Parent and U.S. Parent, 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 parties Wall Street Journal, shall cooperate to ensure that mature on the issuance first anniversary of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements date of all Governmental Entities, including compliance with an applicable exemption from registration execution and delivery of the Top-Up Option Shares under the Securities Actsuch Promissory Note and may be prepaid without premium or penalty.

Top-Up Option. (a) The Company hereby grants has granted to the Purchaser an irrevocable option (the “Top-Up Option”) to purchase, at purchase from the Company a price per share number of newly issued Shares equal to the Offer Price, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Parent, Purchaser or and any direct or indirect of their wholly owned Subsidiary of Parent or the Purchaser subsidiaries at the time of exercise of the Top-Up Option, constitutes one Common Share more than constitutes, (x) if the Minimum Condition is applicable, at least 90% of the number of Common Shares that will be issued and outstanding immediately after the issuance of the Top-Up Option Shareson a fully-diluted basis (including all Shares issuable in respect of the Company’s options or warrants) or (y) if the Lowered Minimum Condition is applicable, the number of unissued Shares that the Company is authorized to issue as of the date Purchaser accepts the Shares tendered in the Offer and which are not reserved for issuance pursuant to the exercise of Company options or warrants and which will constitute not less than 90% of the number of Shares that will be issued and outstanding upon the acceptance for payment by Purchaser of the Shares tendered in the Offer (including the shares issuable pursuant to the Top-Up Option). The Top-Up Option may not be exercised by the Purchaser, in whole, at if any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of applicable law or any applicable Law and no judgment, injunction, order or decree shall prohibit of any governmental entity prohibits the exercise of the Top-Up Option or the delivery of the Shares to be purchased under the Top-Up Option Shares in respect Option. The exercise of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of by Purchaser is subject to certain conditions set forth in the Company’s shareholders under applicable Law Merger Agreement. The Top-Up Option may be exercised by Purchaser, in whole or regulation in part, at any time within five (including 5) business days following the NYSE rules and regulations), (iv) upon Expiration Date. Upon exercise of the Top-Up Option, if required, Purchaser shall consummate the number Merger as a short-form merger pursuant to Section 253 of Common the DGCL. The Merger. The Merger Agreement provides that, at the Effective Time, as defined below, Purchaser will be merged (the “Merger”) with and into the Company and the Company will continue as the surviving corporation (the “Surviving Corporation”). Following the Merger, the Surviving Corporation will be a wholly owned subsidiary of Parent. In the Merger, each outstanding Share (other than Shares held in the treasury of the Company or owned by Parent or the Purchaser or Parent, which will automatically be cancelled) will automatically be cancelled and, other than Shares with respect to which appraisal rights are properly exercised, will be converted into and become a right to receive the Offer Price, to the seller in cash without interest thereon, less any direct or indirect wholly owned Subsidiary of Parent or required withholding taxes. The Merger Agreement further provides that the Purchaser constitutes one Share more than 90% closing of the number of Common Shares that Merger (the “Closing”) will take place on a date to be specified by Parent and the Company (the “Closing Date”), which will be outstanding immediately no later than the first business day after satisfaction or waiver of certain conditions under the issuance Merger Agreement or such later date as determined by Parent and the Company. At the Closing, Parent and the Company shall cause a certificate of merger (the “Certificate of Merger”), be filed with the Secretary of State of the Top-Up Option Shares State of Delaware and (v) will make all other filings or recordings required 34 Table of Contents under the Purchaser DGCL to effect the Merger. The Merger will become effective when such Certificate of Merger has accepted for payment been duly filed or at such later date or time as may be agreed by Parent and paid for all Common Shares validly tendered the Company and specified in the Offer and not validly withdrawn. The parties shall cooperate to ensure that Certificate of Merger in accordance with the issuance DGCL (the effective time of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of Merger being thereinafter referred to as the Top-Up Option Shares under the Securities Act“Effective Time”).

Top-Up Option. (a) The Company hereby grants Pursuant to the Purchaser an irrevocable terms of the HP Merger Agreement following our initial acceptance for payment of Shares pursuant to the Offer (the "Appointment Time"), if we acquire more than a majority but less than 90% of the Shares outstanding, we would have the option (the “"Top-Up Option”") to purchasepurchase from 3PAR, at a price per share equal subject to the Offer Pricecertain limitations, up to a number of Common additional Shares (the “"Top-Up Option Shares”") that, when added sufficient to the number of Common cause Purchaser to own 100 Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number Shares then outstanding, taking into account those Shares outstanding after the exercise of Common the option, calculated on a fully-diluted basis (assuming the issuance of all Shares that will issuable within 10 business days after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights). The exercise price for the Top-Up Option would equal the Offer Price and would be outstanding immediately paid in cash or by issuance by us to 3PAR of a full recourse unsecured promissory note. Pursuant to the terms of the HP Merger Agreement, the Top-Up Option would be exercisable at any one time after the Appointment Time and prior to the earlier to occur of (i) the effective time of the Merger (the "Effective Time") and (ii) the termination of the HP Merger Agreement in accordance with its terms. Under the terms of the HP Merger Agreement, the parties would agree to use their reasonable best efforts to consummate the Merger in accordance with the short-form merger provisions of Section 253 of the DGCL (as described below) as close in time as possible to the issuance of the Top-Up Option Shares. The Moreover, the HP Merger Agreement provides that the Top-Up Option may would not be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant exercisable to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, extent that the obligation number of the Company to deliver Top-Up Option Shares issuable upon the exercise of the Top-Up Option is subject to the conditions that (i) would exceed the number of Top-Up Option authorized but unissued and unreserved Shares. We could also acquire additional Shares to be issued by the Company shall in no event exceed 19.90% after completion of the number of outstanding Common Shares or the voting power of the CompanyOffer through other means, in each casesuch as open market purchases. In any event, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than if we acquire at least 90% of the number of Common issued and outstanding Shares that will be outstanding immediately after entitled to vote on the issuance adoption of the TopHP Merger Agreement, we would effect the Merger under the "short-Up Option form" merger provisions of the DGCL. Stockholders who have not sold their Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate would have certain appraisal rights with respect to ensure that the issuance merger under the applicable provisions of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesDGCL, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actif those rights are perfected.

Top-Up Option. (a) The Company hereby grants O’Charley’s has also granted to Parent and the Purchaser an irrevocable option right (the “Top-Up Option”) ), which Parent or the Purchaser may exercise following consummation of the Offer, if necessary, to purchasepurchase from O’Charley’s, at a price per share equal to the Offer Price, payable in cash or by the issuance of a promissory note in the form attached as an exhibit to the Merger Agreement, up to that number of Common newly-issued Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser (or any direct or indirect wholly owned Subsidiary of Parent or its subsidiaries, including the Purchaser Purchaser) at the time of exercise of the Top-Up Option, constitutes would constitute one Common Share more than 90% of the number of Common Shares that will be then outstanding immediately on a fully-diluted basis (as defined in the Merger Agreement) after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior giving effect to the issuance of the Top-Up Shares (excluding from Parent’s (and its subsidiaries’, including the Purchaser’s) ownership, but not from the Shares outstanding, those Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of that guarantee). The Merger Agreement provides that the Top-Up Option Shares, (ii) no provision may not be exercised if: • the number of Shares subject to the Top-Up Option exceeds the number of authorized and unissued Shares available for issuance; • any applicable Law and no judgment, injunction, temporary restraining order or decree shall prohibit preliminary or permanent injunction or other order by any federal or state court or other tribunal of competent jurisdiction (collectively, “Restraints”) or applicable law prohibits the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) Shares; • immediately after the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after Option and the issuance of the Top-Up Option Shares, Parent (and its subsidiaries, including the Purchaser) would not own more than 90% of the Shares and then outstanding on a fully-diluted basis (v) as defined in the Merger Agreement); or • the Purchaser has not accepted for payment and paid for all Common the Shares validly tendered in the Offer (or during any subsequent offering period) and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby grants to the Purchaser Sub an irrevocable option (the “Top-Up Option”), exercisable only on the terms and conditions set forth in this Section 2.4 following the Acceptance Time (which, for clarity purposes, requires the satisfaction or waiver (subject to the limitations in the proviso in Section 2.1(b)) of the Tender Offer Conditions), to purchase, purchase at a price per share equal to the Offer Price, a Price that number of newly issued, fully paid and nonassessable shares of Class A Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Class A Common Stock that, when added to the number of shares of Class A Common Shares Stock directly or indirectly owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and Sub at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than ninety percent (90% %) of the number shares of Class A Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Option Shares; provided that the Top-Up Option may not be exercised to the extent that the number of Top-Up Option Shares needed to satisfy the ninety percent (90%) threshold exceeds that number of shares of Class A Common Stock authorized and unissued (treating any shares of Class A Common Stock owned by the Company as treasury stock as unissued) and not reserved for issuance at the time of exercise of the Top-Up Option. The Top-Up Option may shall be exercised by the Purchaserexercisable only once, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and whole but not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the in part. The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions condition that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no judgment, injunction, order shall be in effect that has the effect of enjoining or decree shall prohibit otherwise prohibiting the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActShares.

Top-Up Option. (a) The Subject to the immediately succeeding sentence, the Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.2, to purchasepurchase from the Company, at a price per share equal to the Common Offer Price, a that number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Exercise Time (including Common Shares validly tendered into the Offer and not validly withdrawn (but not including any Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depository for the Offer in full settlement or satisfaction of such guarantee)), would represent at least ninety percent (the “Acceptance Date”90%) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of outstanding immediately prior after giving effect to the issuance of the Top-Up Shares. Merger Sub shall exercise the Top-Up Option Sharesas promptly as practicable after the Offer Acceptance Time (the date and time of such exercise, the “Top-Up Exercise Time”) if, but shall only exercise the Top-Up Option if, (i) a Triggering Event shall have occurred, (ii) no provision the Offer Acceptance Time shall have occurred, (iii) the Minimum Condition has been satisfied, and (iv) Merger Sub shall not hold Common Shares (including Common Shares validly tendered into the Offer and not validly withdrawn (but not including any Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depository for the Offer in full settlement or satisfaction of any applicable Law and no judgment, injunction, order or decree shall prohibit such guarantee)) representing at least ninety percent (90%) of the exercise Common Shares then outstanding. On the day of the Top-Up Option or Exercise Time, Merger Sub shall give the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, Company written notice specifying the number of Common Shares directly or indirectly owned by Parent or Merger Sub at the Purchaser or any direct or indirect wholly owned Subsidiary time of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and such notice (v) the Purchaser has accepted for payment and paid for all including Common Shares validly tendered in into the Offer and not validly withdrawn. The parties shall cooperate withdrawn (but not including any Common Shares tendered pursuant to ensure guaranteed delivery procedures that have not yet been received by the issuance depository for the Offer in full settlement or satisfaction of such guarantee)) and the Top-Up Option Shares is accomplished consistent with all applicable legal requirements number of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.Top-

Top-Up Option. (a) The Company hereby grants Pursuant to the Merger Agreement, the Company has irrevocably granted to Intersil and the Purchaser an irrevocable the option (the “Top-Up Option”) to purchasepurchase from the Company, at a price per share Share equal to the Offer PricePer Share Amount, a up to that number of Common newly issued Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned owned, directly or indirectly, by Parent Intersil or the Purchaser at the time of such exercise, constitutes one share more than 90% of the total outstanding Shares. At the closing of the purchase of the Top-Up Option Shares, the portion of the purchase price owing upon exercise of the Top-Up Option that equals the product of (i) the number of Shares purchased pursuant to the Top-Up Option, multiplied by (ii) the Per Share Amount, shall be paid to the Company, at the election of Intersil and Purchaser, in cash (by wire transfer or any direct cashier’s check) or indirect wholly owned Subsidiary by delivery of Parent an unsecured promissory note having full recourse to Intersil and such other terms reasonably satisfactory to the Company. The Top-Up Option shall be exercisable only once and only after the acceptance for payment for Shares pursuant to the Offer by Intersil or Purchaser as a result of which Intersil and Purchaser own beneficially at least a majority of the Purchaser outstanding Shares on a fully diluted basis, taking into account all outstanding Shares and assuming the exercise, conversion or exchange of all options, warrants, convertible securities and similar rights of the Company and the issuance of all Shares that the Company is obligated to issue thereunder. The Top-Up Option shall not be exercisable if the number of Shares subject thereto exceeds the number of authorized Shares available for issuance by the Company or held in the treasury of the Company at the time of exercise of the Top-Up OptionOption (giving effect to the Shares issuable pursuant to all then-outstanding stock options and any other rights issued by the Company to acquire Shares as if such Shares were outstanding), constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after if the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power would require approval of the Company, in each case, as ’s stockholders under any provision of immediately prior to applicable law or the issuance rules of the Top-Up Option SharesNASDAQ Stock Market, (ii) no or if any provision of any applicable Law and no judgment, injunction, order or decree shall prohibit law prohibits the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance . The purpose of Top-Up Option Shares pursuant to the Top-Up Option would not require approval is to facilitate a short-form merger, in accordance with Delaware law, following completion of the Offer. The Merger. The Merger Agreement provides that, at the effective time of the Merger (the “Effective Time”), the Purchaser will be merged with and into the Company with the Company being the surviving corporation (the “Surviving Corporation”). Following the Merger, the separate existence of the Purchaser will cease, and the Company will continue as the Surviving Corporation and an indirect, wholly-owned subsidiary of Intersil. Pursuant to the Merger Agreement, each Share then held by the Company or any direct or indirect wholly owned subsidiary of the Company (or held in the Company’s shareholders under applicable Law treasury) or regulation (including the NYSE rules and regulations)held by Intersil, (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary subsidiary of Parent or Intersil shall be canceled and shall cease to exist, and no consideration shall be delivered in exchange therefor. Each Share issued and outstanding immediately prior to the Purchaser constitutes one Effective Time (other than other than Shares to be canceled in accordance with the immediately preceding sentence and any Dissenting Shares (as defined below) shall be canceled and shall be converted automatically into the right to receive cash in an amount equal to the Per Share more than 90% Amount (the “Merger Consideration”) payable, without interest, to the holder of such Share, upon surrender of the Certificate that formerly evidenced such Share (provided, however, that, with respect to each restricted share issued under a restricted award granted under the Company’s equity based compensation plans (each, a “Company RSA”) will be exchanged at the Effective Time for a restricted stock award representing the right to receive, on substantially the same terms and conditions (including vesting) as were applicable to such RSA immediately prior to the Effective Time, the number of shares of Intersil Common Stock (rounded down to the nearest whole share) determined by multiplying the number of restricted shares subject to such RSA that are being converted by the Option Exchange Ratio). As of the Effective Time, all such Shares that will shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each Table of Contents holder of a certificate representing any such Shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration. Shares outstanding immediately after prior to the issuance Effective Time held by a holder (if any) who shall have neither voted in favor of the Top-Up Option Merger nor consented thereto in writing and who properly demands in writing appraisal for such Shares in accordance with and (v) the Purchaser has accepted for payment and paid for who complies in all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance respects with, Section 262 of the Top-Up Option DGCL (“Dissenting Shares”) shall not be converted into, or represent the right to receive, the Merger Consideration unless such holder fails to perfect or shall have waived, withdrawn or otherwise lost such holder’s right to appraisal, if any. At the Effective Time such Dissenting Shares is accomplished consistent with all applicable legal requirements of all Governmental Entitiesshall no longer be outstanding and shall automatically be cancelled and shall cease to exist, including compliance with an applicable exemption from registration and such stockholders shall be entitled to receive payment of the Top-Up Option fair value of such Dissenting Shares under held by them in accordance with the Securities Actprovisions of Section 262 of the DGCL.

Top-Up Option. (a) The Immediately prior to the Offer Closing, Parent and the Company shall confer and mutually determine, in good faith, after consulting with their respective outside legal counsel, whether the Merger remains eligible to be effected pursuant to Section 251(h) of the DGCL. Unless Parent and the Company determine that the Merger is ineligible to be effected pursuant to Section 251(h) of the DGCL (the “251(h) Inapplicable Determination”), the Merger shall be effected in accordance with Section 251(h) of the DGCL. If prior to the Effective Time, Parent and the Company make a 251(h) Inapplicable Determination then, contingent and effective upon the occurrence of the 251(h) Inapplicable Determination and the Offer Closing, the Company hereby grants to the Purchaser Acquisition Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.3, to purchase, purchase at a price per share equal to the Offer Price, a Price that number of newly issued, fully paid and nonassessable shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock directly or indirectly owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and Acquisition Sub at the time of exercise of the Top-Up OptionClosing (after giving effect to the Offer Closing), constitutes one Common Share more than shall constitute ninety percent (90% %) of the number shares of Company Common Shares Stock that will be are then issued and outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the Top-Up Option may not be exercised to the extent that the number of Top-Up Option Shares exceeds that number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not reserved for issuance at the time of exercise of the Top-Up Option. The Top-Up Option shall be exercisable only once, in whole but not in part. The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions condition that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no judgment, injunction, order shall be in effect that has the effect of enjoining or decree shall prohibit otherwise prohibiting the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActShares.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only from and after the Acceptance Time upon the terms and subject to purchasethe conditions set forth herein, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of the Parent or the Purchaser at the time of such exercise, shall constitute one share more than 90% of the Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then total authorized and unissued Shares (treating Shares owned by the Company as treasury stock as unissued). Upon the Purchaser’s request, the Company shall cause its transfer agent to certify in writing to the Purchaser the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately Option and after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of shall pay the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 aggregate par value of the Top-Up Option Shares in respect of such exercise, (iii) cash and the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval balance of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will aggregate price required to be outstanding immediately after the issuance of paid for the Top-Up Option Shares and by delivery of a promissory note (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn“Promissory Note”). The parties Promissory Note shall cooperate be full recourse against the Purchaser, shall be guaranteed by the Parent and shall bear interest at the rate of interest per annum equal to ensure that the issuance 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 Top-Up Option Shares is accomplished consistent with all applicable legal requirements date of all Governmental Entitiesexecution and delivery of such Promissory Note and may be prepaid without premium or penalty; provided, including compliance with an applicable exemption from registration however, upon any event of the Top-Up Option Shares default under the Securities ActPromissory Note, all principal and accrued interest thereunder shall immediately become due and payable.

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Acquisition Sub an irrevocable option (the “"Top-Up Option”) "), exercisable only on the terms and conditions in this Section 1.5, to purchase, purchase at a price per share equal to the Offer Acquisition Price, a number of Common Shares newly issued shares of Company common stock (the “"Top-Up Option Shares”") that, when added to the number of Common Shares owned by Parent or the Purchaser Acquisition Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Acquisition Sub at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the PurchaserParent or Acquisition Sub, in wholewhole or in part, at any time on or after the expiration date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to of the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and (i) the expiration date of the offer or (ii) the expiration date of any subsequent offering period under Rule 14d-11 under the Exchange Actperiod; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (iiA) 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 Option Shares in respect of such exercise, (iiiB) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders Company Shareholders under applicable Law or regulation (including the including, without limitation, NYSE rules and regulations), (ivC) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser Acquisition Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Acquisition Sub constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares Shares, and (vD) the Purchaser Acquisition Sub has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall will cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby grants Pursuant to the Merger Agreement, Microfluidics granted to the Purchaser an irrevocable option (the “Top-Up Option”) Option to purchase, at a price per share equal to the Offer Price, a additional Shares equal to the lowest number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or IDEX, the Purchaser or any direct or indirect wholly owned Subsidiary and their 36 Table of Parent or the Purchaser Contents subsidiaries and affiliates at the time of such exercise, shall constitute 1,000 Shares more than 90% of the Shares then outstanding (after giving effect to the issuance of the Shares pursuant to the Top-Up Option). IDEX will pay Microfluidics the aggregate par value of the Shares issued pursuant to the Top-Up Option in cash. The balance of the exercise price for the Shares issued pursuant to the Top-Up Option is to be paid by delivery of a non-negotiable and non-transferable promissory note, bearing simple interest at 9% per annum, made by the Purchaser. The promissory note will be secured by the Shares issued pursuant to the Top-Up Option and will be due and payable within one year. The Top-Up Option is not exercisable unless immediately after its exercise and the issuance of Shares pursuant to the Top-Up Option, constitutes one Common Share more than IDEX, the Purchaser and their respective subsidiaries and affiliates would hold, in the aggregate, at least 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Sharesthen issued and outstanding. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts is not exercisable for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the a number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% excess of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Microfluidics’ total authorized and unissued Shares, (ii) no provision of any . Unless applicable Law and no judgment, injunction, order or decree shall prohibit law prohibits the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to thereto, the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon Purchaser may exercise of the Top-Up Option, the number of Common Shares owned by Parent on one or more occasions after the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or accepts for payment Shares validly tendered in the Offer. The Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of may not exercise the Top-Up Option Shares and (v) after the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance completion of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesMerger, including compliance with an applicable exemption from registration or after the termination of the Top-Up Option Shares under the Securities ActMerger Agreement pursuant to its terms.

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Merger Subsidiary an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer Price, a number of shares of Company Common Shares Stock (the “Top-Up Option Shares”) that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser Merger Subsidiary or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Subsidiary at the time of exercise of the Top-Up Option, constitutes one share of Company Common Share Stock more than 90% of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares; provided that in no event shall the Top-Up Option be exercisable for more than 2,596,237 shares of Company Common Stock. The Top-Up Option may be exercised by the PurchaserParent or Merger Subsidiary, in wholewhole or in part, at any time on or after the expiration date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to of the Offer (the “Acceptance Date”) and on or prior to the fifth tenth Business Day after the later of (i) the Acceptance Date and expiration date of the Offer or (ii) the expiration of any subsequent offering period under Rule 14d-11 under the Exchange ActSubsequent Period; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (iiA) no provision of any applicable Law law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiB) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders stockholders under applicable Law law or regulation (including the NYSE including, without limitation, Nasdaq National Market rules and regulations, including Section 4350(i)(1)(D)), (ivC) upon exercise of the Top-Up Option, the number of shares of Company Common Shares Stock owned by Parent or the Purchaser Merger Subsidiary or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Subsidiary constitutes one Share share of Company Common Stock more than 90% of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares Shares, and (vD) the Purchaser Merger Subsidiary has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all any Governmental EntitiesEntity, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act of 1933, as amended (together with the rules and regulations thereunder, the “Securities Act”).

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer PricePer Share Amount, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent - 6 - or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may shall be exercised by the PurchaserParent or Merger Sub, in wholewhole or in part, at any time on or after the expiration date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to of the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of (1) the Acceptance Date and expiration date of the Offer or (ii) the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actperiod; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (iA) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to and after giving effect to the issuance of the Top-Up Option Shares, (iiB) no provision of any applicable Law law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiC) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders stockholders under applicable Law law or regulation (including the NYSE including, without limitation, New York Stock Exchange rules and regulations), (ivD) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Sub constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares Shares, and (vE) the Purchaser Merger Sub has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Act. The Top-Up Option shall be exercised (and may only be exercised) if following its exercise, the condition set forth in clause (D) above would be satisfied.

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Merger Subsidiary an irrevocable option (the “"Top-Up Option”") to purchase, at a price per share equal to the Offer Price, a number of shares of Company Common Shares Stock (the “"Top-Up Option Shares”") that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser Merger Subsidiary or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Subsidiary at the time of exercise of the Top-Up Option, constitutes one share of Company Common Share Stock more than 90% of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares; provided that in no event shall the Top-Up Option be exercisable for more than 2,596,237 shares of Company Common Stock. The Top-Up Option may be exercised by the PurchaserParent or Merger Subsidiary, in wholewhole or in part, at any time on or after the expiration date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to of the Offer (the “Acceptance Date”) and on or prior to the fifth tenth Business Day after the later of (i) the Acceptance Date and expiration date of the Offer or (ii) the expiration of any subsequent offering period under Rule 14d-11 under the Exchange ActSubsequent Period; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (iiA) no provision of any applicable Law law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiB) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders 's stockholders under applicable Law law or regulation (including the NYSE including, without limitation, Nasdaq National Market rules and regulations, including Section 4350(i)(1)(D)), (ivC) upon exercise of the Top-Up Option, the number of shares of Company Common Shares Stock owned by Parent or the Purchaser Merger Subsidiary or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Subsidiary constitutes one Share share of Company Common Stock more than 90% of the number of shares of Company Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares Shares, and (vD) the Purchaser Merger Subsidiary has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all any Governmental EntitiesEntity, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act of 1933, as amended (together with the rules and regulations thereunder, the "Securities Act").

Top-Up Option. (a) The Company hereby grants Pursuant to the terms of the Merger Agreement, ZOLL has granted to Purchaser an irrevocable option (the “Toptop-Up Optionup option”) to purchase), at a price per share equal to for so long as the Offer PriceMerger Agreement has not been terminated, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more if we acquire less than 90% of the Shares outstanding, to purchase from ZOLL, subject to certain limitations, the number of Common authorized and not outstanding Shares that will (the “top-up shares”) equal to the number of additional Shares sufficient to cause Asahi Kasei and Purchaser to own the number of shares necessary for Purchaser to be merged into ZOLL without a vote or consent of ZOLL’s shareholders, or at least 90% of the Shares then outstanding, taking into account those Shares outstanding immediately after the exercise of the top-up option, calculated on a fully diluted basis. The top-up option may be exercised by Purchaser, in whole but not in part, promptly (but in no event later than one business day) after the Acceptance Time or the expiration of a subsequent offering period, if (i) at the Acceptance Time or the expiration of a subsequent offering period Purchaser owns in the aggregate at least 80% of all of the Shares then outstanding and (ii) after giving effect to the exercise of the top-up option, Purchaser would own the number of shares necessary for Purchaser to be merged into ZOLL without a vote or consent of ZOLL’s shareholders (after giving effect to the issuance of the Toptop-Up Option up Shares). The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company ZOLL to deliver Top-Up Option issue Shares upon the exercise of the Toptop-Up Option up option is subject to the conditions that (i) no legal restraint or order that has the number effect of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit preventing the exercise of the Toptop-Up Option up option or the issuance and delivery of the Toptop-Up Option up option Shares in respect of such exercise, exercise shall be in effect; (ii) the number of top-up shares would not exceed the number of the authorized and unissued shares of the common stock of ZOLL and (iii) Purchaser irrevocably commits upon acquisition of the issuance top-up shares to effect the short-form merger. The purchase price for the top-up shares will be paid by Purchaser as follows: (x) the portion of Top-Up Option Shares pursuant the aggregate purchase price equal to the Top-Up Option would not require approval par value of the Company’s shareholders under applicable Law or regulation top-up shares will be paid in cash and (including y) the NYSE rules and regulations)balance of the remaining aggregate purchase price may be paid, by Purchaser, at its election, (ivi) in cash or (ii) by executing and delivering to ZOLL a promissory note having a principal amount equal to the balance of the remaining aggregate purchase price, or some combination thereof. Any such promissory note will be full recourse against Asahi Kasei and Purchaser, be due one year from the date the top-up shares are issued, bear interest at a rate of three percent (3%) per annum payable quarterly, may be prepaid without premium or penalty and provide that the unpaid principal and accrued interest thereunder shall immediately become due and payable (a) in the event that Purchaser fails to make any payment of interest as provided therein and such failure continues for a period of 30 days or (b) upon exercise the occurrence of the Top-Up Option, the number of Common Shares owned by Parent customary bankruptcy or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate insolvency events with respect to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActPurchaser.

Top-Up Option. (a) The Company hereby grants to GenTek granted the Purchaser an irrevocable option (to purchase from GenTek the “Top-Up Option”) to purchase, at a price per share equal to the Offer Price, a number of Common Shares shares of GenTek common stock (the “Top-Up Option Shares”) equal to the number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share share more than 90% of the number of Common Shares that will would be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall Option. The exercise price for each Share acquired in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit is equal to the exercise of Offer Price. The Merger Agreement provides that the Top-Up Option or will not be exercisable until after the delivery Acceptance Date (and satisfaction of the Minimum Condition) and unless immediately after such exercise the Purchaser and Parent would own more than 90% of the Shares then outstanding and in no event will the Top-Up Option be exercisable for a number of Shares in respect excess of such exercise, (iii) GenTek’s authorized and unissued Shares. The aggregate purchase price payable for the issuance of Top-Up Option Shares being purchased by the Purchaser pursuant to the Top-Up Option would not require approval will be payable, at the option of the Company’s shareholders under applicable Law Parent, either in cash or regulation (including the NYSE rules and regulations), (iv) upon by delivery of a promissory note. The Purchaser may exercise of the Top-Up OptionOption after the Acceptance Date if the Minimum Condition has been satisfied. The Merger. The Merger Agreement provides that, at the effective time of the Merger (the “Effective Time”), the number Purchaser will be merged with and into GenTek, with GenTek being the surviving corporation (the “Surviving Corporation”). Following the Merger, the separate existence of Common Shares the Purchaser will cease, and GenTek will continue as the Surviving Corporation, wholly-owned by Parent. The directors of the Purchaser immediately prior to the Effective Time will be the initial directors of the Surviving Corporation. Pursuant to the Merger Agreement, at the Effective Time, each Share held in treasury by GenTek or owned of record by any subsidiary of GenTek and each Share that is owned by Parent or the Purchaser or any direct or indirect wholly of their respective wholly-owned Subsidiary of Parent or Subsidiaries shall be cancelled and shall cease to exist, without any conversion thereof and no payment shall be made with respect thereto. Each Share issued and outstanding immediately prior to the Purchaser constitutes one Share more Effective Time (other than 90% Company Dissenting Shares (as defined below) and Shares to be cancelled in accordance with the preceding paragraph) shall be converted into the right to receive an amount in cash equal to the Offer Price (the “Merger Consideration”), payable to the holder thereof in accordance with the terms of the number Merger Agreement as described herein. At the Effective Time, all such Shares shall no longer be outstanding and shall automatically be cancelled and shall cease to exist, and each holder of Common any such Share immediately prior to the Effective Time shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration, without interest. Shares that will are outstanding immediately prior to the Effective Time and that are held by any person who is entitled to demand, and who properly demands, appraisal of such Shares pursuant to, and who complies in all respects with, Section 262 of the Delaware General Corporations Law (as amended, the “DGCL”) (such Section, “Section 262” and, such Shares, “Company Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration and shall instead represent the right to receive payment of the fair value of such Company Dissenting Shares in accordance with, and to the extend provided by, Section 262 (and, at the Effective Time, such Company Dissenting Shares shall no longer be outstanding immediately after and shall automatically be cancelled and shall cease to exist, and such holders shall cease to have any right with respect thereto, except the issuance right to receive the fair value of such Company Dissenting Shares in accordance with Section 262). If any such holder fails to perfect or otherwise waives, withdraws or loses the right to appraisal under Section 262, then the right of such holder to be paid the fair 18 Table of Contents value of such holder’s Company Dissenting Shares shall cease and such Company Dissenting Shares shall be deemed to have been converted as of the Top-Up Option Shares Effective Time into, and to have become exchangeable solely for, the right to receive the Merger Consideration (v) the Purchaser has accepted for payment without interest thereon and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all less any applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actwithholding taxes).

Top-Up Option. (a) The Subject to the terms and conditions set forth herein, the Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer Pricegreater of (i) the closing price of a Share on Nasdaq the last trading day prior to the exercise of the Top-Up Option or (ii) the Cash Consideration, a that number of Common newly issued Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately Option (after giving effect to the issuance of the Top-Up Option Shares but excluding from Purchaser’s ownership, but not from the outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee), constitutes one Share more than ninety percent (90%) of all outstanding Shares (assuming the issuance of the Top-Up Shares). The Top-Up Option may will only be exercised one time by Purchaser in whole but not in part, and only if clauses (x) and (y) of the following sentence are satisfied. The Top-Up Option will be exercised by the Purchaser, and Parent will cause Purchaser to exercise the Top-Up Option, promptly (but in whole, at any time on or no event later than one (1) Business Day) after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on Time or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under a Subsequent Offering Period, as applicable, if (x) at the Exchange ActAcceptance Time or the expiration of such Subsequent Offering Period, as applicable, Purchaser owns in the aggregate at least seventy-five percent (75%) of all Shares then outstanding (excluding from Purchaser’s ownership, but not from the outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) and (y) after giving effect to the exercise of the Top-Up Option, Purchaser would own in the aggregate one Share more than ninety percent (90%) of the number of outstanding Shares (after giving effect to the issuance of the Top-Up Shares but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee); provided, however, that the obligation of Purchaser to exercise the Top-Up Option and the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (iiA) no provision of any applicable Law and no judgmentapplicable order, injunction, order injunction or decree other judgment shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiB) Purchaser irrevocably commits upon acquisition of the Top-Up Shares to effect the Merger pursuant to Section 2.7, and (C) the issuance number of Top-Up Option Shares to be issued pursuant to the Top-Up Option would does not require approval exceed the number of authorized and unissued shares of Company Common Stock less the maximum number of shares of Company Common Stock potentially necessary for issuance with respect to outstanding Company Equity Awards or other obligations of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall will cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesLaws, including compliance with an applicable exemption from registration under the Securities Act. The Top-Up Option shall terminate concurrently with the termination of this Agreement. Purchaser may assign the Top-Up Option Shares under the Securities Actand its rights and obligations pursuant to this Section 1.5, in its sole discretion, to Parent.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “"Top-Up Option”") to purchase, at a price per share equal to the Offer Price, a number of newly issued shares of Common Shares Stock (the “"Top-Up Option Shares”") that, when added to the number of shares of Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one share of Common Share Stock more than 90% of the number of shares of Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaserexercised, in wholewhole or in part, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) any Expiration Date hereunder and on or prior to the fifth Business Day after the later of the Acceptance Expiration Date and or the expiration date of any subsequent offering period under Rule 14d-11 under the Exchange Actperiod; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (iiA) no provision of any applicable Law and no judgment, injunction, order or decree Restraint shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiB) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders 's stockholders under applicable Law law or regulation (including the NYSE Nasdaq Global Select Market rules and regulations), (ivC) upon exercise of the Top-Up Option, the number of shares of Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub constitutes one Share share of Common Stock more than 90% of the number of shares of Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares, (D) the number of Top-Up Option Shares issued pursuant to the Top-Up Option shall in no event exceed the number of authorized and unissued shares of Common Stock not otherwise reserved for issuance for outstanding Company Options or other obligations of the Company and (vE) the Purchaser Merger Sub has accepted for payment and paid for all shares of Common Shares Stock validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesLaws, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby grants to the Parent and Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only if, at the Expiration Date, the aggregate number of Shares validly tendered in accordance with the terms of the Offer and not withdrawn, when taken together with all Shares then owned by Parent, Purchaser and their Affiliates (collectively, the “Base Shares”), equal or exceed 80% of the outstanding Shares on a fully diluted basis immediately prior to purchasesuch Expiration Date, to purchase from the Company (the “Top-Up Purchase”), at a price per share equal to the Offer Price, a that number of newly issued shares of Company Common Shares Stock as may be designated in writing by the Parent or Purchaser (but not in excess of the lowest number of shares of Company Common Stock that, when added to the Base Shares, shall constitute a sufficient number of shares of Company Common Stock to effect a short-form merger under URBCA 16-10a-1104) (the “Top-Up Option Shares”) that). If such Top-Up Option is exercised, when added to the number of Common Shares owned by Parent or the and Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of shall consummate the Top-Up OptionPurchase within five (5) Business Days of the Expiration Date and contemporaneously with the acceptance for payment and purchase of all Shares validly tendered pursuant to the Offer, constitutes whereupon the Company shall issue the Top-Up Shares to Purchaser, and Purchaser shall (and Parent shall cause Purchaser to) promptly pay to the Company, in, at the option of Purchaser, (i) cash and/or (ii) a full-recourse promissory note issued by Purchaser to the Company with a maturity of one Common Share more than 90% of year, bearing interest at an annual rate equal to four percent (4%), in a principal amount equal to the Offer Price multiplied by the number of Common Shares Top-Up Shares. The parties shall cooperate to ensure that will be outstanding immediately after the issuance of the Top-Up Option SharesShares is accomplished consistent with all applicable legal and stock exchange listing requirements. The Top-Up Option may be exercised by the Purchaser, Notwithstanding anything in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant this Agreement to the Offer contrary (the “Acceptance Date”x) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to shall not be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no exercisable if any provision of applicable laws or any applicable Law and no judgment, injunction, order or decree shall prohibit of any Governmental Entity would prohibit, or require any action, consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity or the Company’s stockholders in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, which action, consent, approval, authorization, permit, filing or notification has not theretofore been obtained or made, as applicable (iiiother than any filings required under the Exchange Act or applicable stock exchange listing requirements), and (y) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval shall be exercisable only up to the number of authorized but unissued shares of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActStock.

Top-Up Option. (a) The Company hereby grants to the Purchaser and Parent an irrevocable option (the “Top-Up "Merger Option”") to purchase, at a price per share purchase up to that number of newly issued shares of Company Common Stock (the "Merger Option Shares") equal to the Offer Price, a number of shares of Company Common Shares (the “Top-Up Option Shares”) Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the and Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise immediately following consummation of the Top-Up OptionOffer, constitutes shall constitute one Common Share share more than 90% of the number shares of Company Common Shares that will be Stock then outstanding immediately (after giving effect to the issuance of the Top-Up Merger Option Shares), as certified by the Company, for consideration per Merger Option Share equal to the Offer Price. The Top-Up Merger Option may shall be exercised by the Purchaser, in whole, at any time on or exercisable only after the date on which the Purchaser accepts purchase of and payment for payment and pays for all shares of Company Common Shares validly tendered and not validly withdrawn Stock pursuant to the Offer by Parent or Purchaser as a result of which Parent and Purchaser own at least 80% of the then outstanding shares of Company Common Stock. Notwithstanding the foregoing, the Merger Option (i) shall be exercisable only once and shall in no event be exercisable for a number of shares of Company Common Stock in excess of the “Acceptance Date”Company's then authorized and unissued shares of Common Stock (after taking into account any shares of Company Common Stock reserved for issuance upon exercise of any Company Stock Options or under the Company Purchase Plan then outstanding) and on or prior (ii) shall not be exercisable to the fifth Business Day after extent prohibited by any applicable Law or to the later extent approval of the Acceptance Date Company's stockholders would be required to issue any Merger Option Shares. Parent and the expiration of Purchaser understand that any subsequent offering period under Rule 14d-11 Merger Option Shares will not be registered under the Exchange Act; providedSecurities Act or any other applicable securities law, howeverand will be issued in reliance upon an exemption thereunder for transactions not involving a public offering, and that any certificates representing the obligation Merger Option Shares may include any legends required by applicable securities laws. In the event that Parent or Purchaser wish to exercise the Merger Option, Purchaser shall give the Company one (1) Business Day's written notice specifying the number of shares of Company Common Stock that are or will be owned by Parent and Purchaser following consummation of the Offer and specifying a place and a time for the closing of the purchase. The Company shall, as soon as practicable following receipt of such notice, deliver written notice to deliver Top-Up Purchaser specifying the number of Merger Option Shares Shares. At the closing of the purchase of the Merger Option Shares, the portion of the purchase price owed upon the exercise of the Top-Up Merger Option is subject to that equals the conditions that product of (i) the number of Top-Up Option shares of Shares purchased pursuant to the Merger Option, multiplied by (ii) the Offer Price, shall be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of paid to the Company, in each case, as of immediately prior to at the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary election of Parent and Purchaser, in cash (or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actby wire transfer or cashier's check).

Top-Up Option. (a) The Company hereby grants to the HealthTronics has granted Purchaser an irrevocable option (the “Top-Up Option”” ) to purchase, at a price per share equal purchase up to the Offer Price, a that number of Common newly issued Shares (the “Top-Up Option Shares”) equal to the number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Endo and Purchaser at the time of the exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be then outstanding immediately on a fully diluted basis (after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior giving effect to the issuance of the Top-Up Option Shares) or, (ii) no as may be elected by Endo, on a primary basis as of immediately prior to the issuance of such shares, for consideration per Top-Up Option Share equal to the Offer Price. The Top-Up Option is subject to certain additional terms and conditions, including that Purchaser must own as of such time less than one more than 90% of the Shares then outstanding. The Top-Up Option will not be exercisable to the extent the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued Shares that are not already reserved for issuance, or any other provision of applicable law or any applicable Law and no judgment, injunction, order or decree shall by a governmental entity would prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of Option. The aggregate purchase price payable for the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of issuable pursuant to the Top-Up Option will be determined by multiplying the number of such Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in by the Offer Price, without interest. Such aggregate purchase price may be paid by Purchaser, at its election, either in cash or by executing and not validly withdrawn. The parties shall cooperate delivering to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActHealthTronics a promissory note having a principal amount equal to such purchase price and having full recourse to Endo.

Top-Up Option. (a) The Subject to Section 1.03(b) and (c), the Company hereby grants to the Purchaser Newco an irrevocable option (the “Top-Up Option”) to purchase), at a price per share equal for so long as this Agreement has not been terminated pursuant to the Offer Priceterms hereof, a to purchase from the Company the number of authorized and unissued shares of Common Shares Stock (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 Shares Stock owned by Parent or Newco as of immediately prior to the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share share more than 90% of the sum of (x) the total number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Shares plus (y) the total number of shares of Common Stock that are issuable within ten Business Days after the issuance of the Top-Up Option may be exercised by Shares upon the Purchaservesting, in wholeconversion or exercise of all outstanding warrants, at any time on options, rights, restricted stock unit awards, convertible or after the date on which the Purchaser accepts for payment exchangeable securities and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later similar rights, regardless of the Acceptance Date conversion or exercise price or other terms and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actconditions thereof; provided, however, that in no event shall the Top-Up Option be exercisable (i) to the extent that the number of Top-Up Option Shares would exceed the number of then authorized and unissued shares of Common Stock that are not otherwise reserved or committed to be issued and (ii) unless, immediately after such exercise and the issuance of the Top-Up Option Shares pursuant thereto, the Short-Form Threshold would be reached (after giving effect to the issuance of the Top-Up Option Shares). The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (iiA) 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 Option Shares in respect of such exercise, (iiiB) upon exercise of the Top-Up Option, the number of shares of Common Stock owned, directly or indirectly, by Parent or Newco constitutes one share of Common Stock more than 90% of the aggregate number of Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares, (C) the number of Top-Up Option Shares issued pursuant to the Top-Up Option shall in no event exceed the number of authorized and unissued shares of Common Stock not otherwise reserved for issuance for outstanding Options or other obligations of the Company, (D) Newco shall have accepted for payment and paid for all Shares validly tendered in the Offer and not validly withdrawn pursuant to the terms of this Agreement and (E) the issuance of the Top-Up Option Shares pursuant to the Top-Up Option would not require approval of by the Company’s shareholders stockholders under applicable Law (excluding, for the avoidance of doubt, any rules or regulation (including regulations of NASDAQ that require stockholder approval). Subject to the NYSE rules and regulations), (iv) upon exercise of the Top-Up Optionforegoing conditions, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall reasonably cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesLaws, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer PricePer Share Amount, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may shall be exercised by the PurchaserParent or Merger Sub, in wholewhole or in part, at any time on or after the expiration date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to of the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of (1) the Acceptance Date and expiration date of the Offer or (ii) the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actperiod; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (iA) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to and after giving effect to the issuance of the Top-Up Option Shares, (iiB) no provision of any applicable Law law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiC) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders stockholders under applicable Law law or regulation (including the NYSE including, without limitation, New York Stock Exchange rules and regulations), (ivD) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Sub constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares Shares, and (vE) the Purchaser Merger Sub has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Act. The Top-Up Option shall be exercised (and may only be exercised) if following its exercise, the condition set forth in clause (D) above would be satisfied.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) to purchase), at a price per share equal exercisable only upon the terms and subject to the conditions set forth herein, to purchase at the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Parent, Merger Sub and their Subsidiaries at the time of exercise of the Top-Up Optionsuch exercise, constitutes shall constitute one Common (1) Share more than 9090.00% of the number of Common outstanding Shares that will be outstanding immediately on a fully diluted basis (after taking into account the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act); provided, however, that the obligation of the Company to deliver Top-Up Option shall not be exercisable to the extent (i) the number of Shares issuable upon the exercise of the Top-Up Option is subject to the conditions that (i) would exceed the number of Top-Up Option authorized but unissued Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option SharesShares (treating the Shares held in the treasury of the Company as unissued and giving effect to Shares reserved for issuance under all outstanding stock options, restricted stock and any other rights to acquire the Shares as if such Shares were outstanding) or (ii) no any other provision of any applicable Law and no or judgment, injunction, injunction order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect (excluding any listing requirement of such exercisethe Nasdaq); provided, (iii) the issuance of Top-Up Option Shares pursuant to further, that the Top-Up Option shall terminate upon the termination of this Agreement in accordance with its terms. The Top-Up Option shall not be exercisable until such time as Merger Sub shall have deposited the payment for all accepted Shares with the depositary agent for the Offer and, if a “subsequent offering period” is provided, for all Shares tendered in the “subsequent offering period, and in no event shall the Top-Up Option be exercisable (x) if the Minimum Tender Condition shall have been waived, (y) more than once or (z) unless, immediately after such exercise and the issuance of Shares pursuant thereto, and accounting for the limitations set forth herein, Parent and Merger Sub would not require approval hold one (1) Share more than 90.00% of the outstanding Shares. Upon Parent’s request, the Company shall use its commercially reasonable efforts to cause its transfer agent to notify Parent in writing of the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option. The Company has reserved, and shall continue to reserve and maintain free from preemptive rights, out of its authorized but unissued shares of common stock of the Company’s shareholders under applicable Law or regulation , par value $0.10 per share, the (including “Common Stock”) all authorized and unissued shares of Common Stock as of the NYSE rules and regulations), (iv) upon date hereof for the exercise of the Top-Up Option, except for Shares issuable upon the number exercise of Common Shares owned by Parent or Company Options outstanding under the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% Stock Plans as of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actdate hereof.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.3, to purchase, purchase at a price per share equal to the Offer Price, a Price paid in the Offer up to that number of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than 90% of the number shares of Company Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Shares on a “fully diluted basis” (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof); provided, however, that (i) the Top-Up Option Sharesshall not be exercisable for a number of shares of Company Common Stock in excess of the shares of Company Common Stock authorized (whether unissued or held in the treasury of the Company) at the time of exercise of the Top-Up Option (giving effect to the shares of Company Common Stock issuable pursuant to all then-outstanding stock options, restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding) and (ii) the exercise of the Top-Up Option and the issuance and delivery of the Top-Up Shares shall not be prohibited by any Law or Judgment. The Top-Up Option may shall be exercised by the Purchaser, in whole, exercisable at any one time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to following the Offer (the “Acceptance Date”) Closing and on or prior to the fifth Business Day after earlier to occur of (a) the later Effective Time and (b) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the this Agreement in accordance with its terms. The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject only to the conditions condition that no Legal Restraint (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision other than any listing requirement of any applicable Law and no judgment, injunction, order or decree shall prohibit national securities exchange) that has the effect of preventing the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exerciseexercise shall be in effect. The parties hereto acknowledge and agree that, (iii) notwithstanding anything to the contrary herein, the failure to obtain approval of the Company’s stockholders of the issuance of Top-Up Option Shares Company Common Stock pursuant to the Top-Up Option would as a result of applicable stock exchange listing requirements shall not require approval cause any condition of the CompanyOffer not to be met. Upon Parent’s shareholders under applicable Law or regulation (including written request, the NYSE rules Company shall use its reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of shares of Company Common Stock issued and regulations), (iv) upon outstanding as of immediately prior to the exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately Option after giving effect to the issuance of the Top-Up Option Shares Shares. Subject to the terms and (v) conditions hereof, and for so long as this Agreement has not been terminated pursuant to the Purchaser has accepted for payment and paid for all provisions hereof, the Company agrees that it shall maintain out of its existing authorized capital, free from preemptive rights, sufficient authorized but unissued shares of Company Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate Stock issuable pursuant to ensure this Agreement so that the issuance of the Top-Up Option Shares is accomplished consistent with may be exercised, after giving effect to the shares of Company Common Stock issuable pursuant to all applicable legal requirements of all Governmental Entitiesother then-outstanding stock options, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actrestricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only after the Acceptance Time and only upon the terms and subject to purchasethe conditions set forth herein, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly of Parent’s wholly-owned Subsidiary of Parent or the Purchaser Subsidiaries at the time of exercise of the Top-Up Option, constitutes one Common Share share more than 90% of the number of Common Fully Diluted Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option shall not exceed the number of Shares upon then authorized and unissued and not reserved for issuance under the Company Benefits Plans as of the date hereof (including as authorized and unissued Shares, for purposes of this Section 1.8, any Shares held in the treasury of the Company and the Company Subsidiaries (collectively, Available Shares)) and shall not be exercisable if immediately after exercise and issuance of all Available Shares pursuant to the Top-Up Option, the Short Form Threshold would not be reached; provided, further, that the Top-Up Option may not be exercisable on more than one occasion. Upon Parent’s request, the Company shall use its reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of and immediately prior after giving effect to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit . The Purchaser may pay the exercise of Company the Top-Up Option or the delivery of aggregate price required to be paid for the Top-Up Option Shares either entirely in respect of such exercisecash or, at the Purchaser’s election, by paying (iiix) in cash an amount equal to not less than the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance aggregate par value of the Top-Up Option Shares and (vy) at the sole election of Guarantor, either Parent and Purchaser has accepted for payment or Guarantor executing and delivering to the Company a promissory note having a principal amount equal to the balance of the aggregate purchase price pursuant to the Top-Up Option less the amount paid for all Common Shares validly tendered in cash (the Offer and not validly withdrawnPromissory Note). The parties Promissory Note shall cooperate to ensure be unsecured, full recourse to, at the sole election of Guarantor, either Parent and Purchaser or Guarantor, non-negotiable and non-transferable, bear simple interest at 2% per annum, shall provide that principal and interest is due one year after the issuance purchase of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesShares, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actshall be prepayable in whole or in part without premium or penalty and shall have no other material terms.

Top-Up Option. (a) The Subject to the terms and conditions set forth herein, the Company hereby irrevocably grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only after the acceptance by Merger Sub of, and payment for, Shares tendered in the Offer and upon the terms and conditions set forth in this Section 1.4, to purchase that number (but not less than that number) of shares of Company Common Stock (the “Top-Up Option Shares”) equal to purchasethe lowest number of shares that, when added to the number of Shares directly or indirectly owned by Parent or Merger Sub or their Subsidiaries at the time of such exercise, shall constitute one share more than 90% of the Shares (taking into account the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price, a number of Common Shares ; provided that (the “Top-Up Option Shares”i) that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The shall be exercisable only once, on or prior to the earlier to occur of the 21st business day (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the expiration date of the Offer or the termination of this Agreement in accordance with its terms, (ii) in no event shall the Top-Up Option be exercisable for a number of Shares (x) in excess of the then authorized and unissued shares of Company Common Stock (giving effect, for purposes of this Section 1.4, to shares reserved for issuance under any Employee Benefit Plan as if such shares were outstanding) or (y) that would require the Company to obtain the approval of its stockholders under Applicable Law or any Nasdaq rule or regulation, (iii) the Top-Up Option may not be exercised by the Purchaser, in whole, at if any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of Applicable Law or any applicable Law and no judgment, injunction, order or decree of any Governmental Entity shall prohibit prohibit, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Entity or the Company’s stockholders in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would which action, consent, approval, authorization or permit, action, filing or notification has not require approval of the Company’s shareholders under applicable Law theretofore been obtained or regulation (including the NYSE rules and regulations)made, (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actas applicable.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only upon the terms and subject to purchasethe conditions set forth herein, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or and the Purchaser at the time of such exercise, shall constitute one thousand (1,000) shares more than 90% of the Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Shares pursuant thereto, the Purchaser reasonably believes that the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then total authorized and unissued Shares after giving effect to the termination of the Share reservation pursuant to Section 5.5(f). Upon Parent’s request, the Company shall cause its transfer agent to certify in writing to Parent the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately Option and after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of shall pay the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 aggregate par value of the Top-Up Option Shares in respect of such exercise, (iii) cash and the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval balance of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will aggregate price required to be outstanding immediately after the issuance of paid for the Top-Up Option Shares by delivery of a non-negotiable and non-transferable promissory note (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn“Promissory Note”). The parties Promissory Note shall cooperate to ensure that be secured by the issuance of Top-Up Option Shares, be due one year from the date the Top-Up Option Shares is accomplished consistent with all applicable legal requirements are issued and bear interest at the rate of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act9% per annum and may be prepaid without premium or penalty.

Top-Up Option. (a) The Company hereby grants to the Parent and Purchaser an irrevocable option (the “"Top-Up Option”) "), exercisable only if, at the Expiration Date, the aggregate number of Shares validly tendered in accordance with the terms of the Offer and not withdrawn, when taken together with all Shares then owned by Parent, Purchaser and their Affiliates (collectively, the "Base Shares"), equal or exceed 80% of the outstanding Shares on a fully diluted basis immediately prior to purchasesuch Expiration Date, to purchase from the Company (the "Top-Up Purchase"), at a price per share equal to the Offer Price, a that number of newly issued shares of Company Common Shares Stock as may be designated in writing by the Parent or Purchaser (but not in excess of the “Top-Up Option Shares”) lowest number of shares of Company Common Stock that, when added to the Base Shares, shall constitute a sufficient number of shares of Company Common Shares owned by Stock to effect a short-form merger under URBCA 16-10a-1104) (the "Top-Up Shares"). If such Top-Up Option is exercised, Parent or the and Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of shall consummate the Top-Up OptionPurchase within five (5) Business Days of the Expiration Date and contemporaneously with the acceptance for payment and purchase of all Shares validly tendered pursuant to the Offer, constitutes whereupon the Company shall issue the Top-Up Shares to Purchaser, and Purchaser shall (and Parent shall cause Purchaser to) promptly pay to the Company, in, at the option of Purchaser, (i) cash and/or (ii) a full-recourse promissory note issued by Purchaser to the Company with a maturity of one Common Share more than 90% of year, bearing interest at an annual rate equal to four percent (4%), in a principal amount equal to the Offer Price multiplied by the number of Common Shares Top-Up Shares. The parties shall cooperate to ensure that will be outstanding immediately after the issuance of the Top-Up Option SharesShares is accomplished consistent with all applicable legal and stock exchange listing requirements. The Top-Up Option may be exercised by the Purchaser, Notwithstanding anything in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant this Agreement to the Offer contrary (the “Acceptance Date”x) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to shall not be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no exercisable if any provision of applicable laws or any applicable Law and no judgment, injunction, order or decree shall prohibit of any Governmental Entity would prohibit, or require any action, consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity or the Company's stockholders in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, which action, consent, approval, authorization, permit, filing or notification has not theretofore been obtained or made, as applicable (iiiother than any filings required under the Exchange Act or applicable stock exchange listing requirements), and (y) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval shall be exercisable only up to the number of authorized but unissued shares of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of 's Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActStock.

Top-Up Option. Prior to the scheduled Acceptance Date, Parent and the Company shall confer and mutually determine, in good faith, after consulting with their respective outside legal counsel, whether the Merger remains eligible to be effected pursuant to Section 251(h) of the DGCL. Unless Parent and the Company determine that the Merger is ineligible to be effected pursuant to Section 251(h) of the DGCL (athe “251(h) The Inapplicable Determination”) the Merger shall be effected in accordance with Section 251(h) of the DGCL. If prior to the Effective Time, Parent and the Company make a 251(h) Inapplicable Determination then, contingent and effective upon the occurrence of the 251(h) Inapplicable Determination and the Acceptance Date, the Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) exercisable only in accordance with the terms and conditions set forth in this Section 2.3, to purchase, at a price per share equal purchase up to the Offer Price, a that number of Common Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Common Company Shares collectively owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Optionexercise, constitutes shall constitute one Common Company Share more than 90% of the sum of (i) the then outstanding Company Shares plus (ii) a number equal to the number of Common Shares that will be outstanding immediately after issuable upon the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration conversion of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares convertible securities or upon the exercise of any options, warrants or rights including the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Company RSUs, Company Stock Options and Company Shares to be issued by pursuant to the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the CompanyESPP, in each case, as of immediately which are convertible or exercisable prior to the date that is ten (10) business days after such exercise and the issuance of the Top-Up Option Shares, (ii) no provision at a purchase price per Top-Up Option Share equal to the Per Share Amount. Notwithstanding the foregoing provisions of any applicable Law and no judgmentthis Section 2.3(a), injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option shall not be exercisable for Company Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% excess of the number of Common Company Shares that will be outstanding immediately after authorized and unissued or held in the issuance treasury of the TopCompany (giving effect to the Company Shares issuable pursuant to all then-Up Option outstanding Company Stock Options, RSUs and any other rights to acquire Company Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actas if such shares were outstanding).

Top-Up Option. If at the time the Exchange Right is exercised (a) The Company hereby grants including, for clarity, in connection with a Permitted Hydro Asset Sale, or an Equity Acceleration Event resulting from a Hydro Covenant Breach), the Equity Redemption Amount is not sufficient to permit Investor to acquire a 49% Hydro Equity Interest, the Purchaser an irrevocable Investor shall have a one-time option (the “Top-Up Option”) ), exercisable until December 31, 2028, to purchase, at a price per share equal to acquire the Offer Price, a number of Common Shares (following additional Hydro SPV Equity provided that the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Investor holds at the time of exercise of such option at least 8.5% of the Top-Up Optionissued and outstanding Common Shares: ● if the 20 day VWAP of the Common Shares (at the time the Exchange Right is exercised) is not less than $14, constitutes one up to an additional 10% of such Hydro SPV Equity (to a maximum equity interest of 49%), or ● if the 20 day VWAP of the Common Share more Shares (at the time the Exchange Right is exercised) is not less than 90$17, that percentage of additional Hydro SPV Equity that would allow the Investor to hold 49% of the Hydro SPV Equity, in each case by paying to the Issuer, in cash, for such additional Hydro SPV Equity the Hydro SPV Equity Value (other than in respect of a Hydro Covenant Breach, where Investor will pay the Tax Affected Hydro SPV Equity Value) multiplied by the additional percentage of Hydro SPV Equity so acquired. Notwithstanding the foregoing and regardless of the number of issued and outstanding Common Shares then owned by the Investor, if at the time the Exchange Right is exercised or an Equity Acceleration Event or Permitted Hydro Asset Sale occurs, the Equity Redemption Amount is not sufficient to permit Investor to acquire a 25% interest in the Hydro SPV Equity, the Investor shall have the option to acquire that will be outstanding immediately after percentage of additional Hydro SPV Equity that would allow the issuance Investor to hold 25% of the Top-Up Option Shares. The Top-Up Option may be exercised Hydro SPV Equity for a price calculated on the same basis as above, paid by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant Investor to the Offer (Issuer in cash. If the “Acceptance Date”) and on or prior to Investor exercises this top-up option, the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is Investor will become subject to the conditions that (i) the number of TopAdditional Lock-Up Option Shares to be issued by Period on the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered terms described in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActInvestment Agreement.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “"Top-Up Option”") to purchase, at a price per share equal to the Offer PriceCommon Per Share Amount, a number of Common Shares (the “"Top-Up Option Shares”") that, when added to the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be issued and outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may shall be exercised by the PurchaserMerger Sub, in wholewhole or in part, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) Expiration Date and on or prior to the fifth Business Day after the later of (x) the Acceptance Expiration Date and or (y) the expiration of any subsequent offering period under Rule 14d-11 under (the Exchange Actdate on which the Top-Up Option is exercised, the "Top-Up Option Exercise Date"); provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no neither any provision of any applicable Law and no nor 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 in respect of such exercise, (iiiii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders 's stockholders under applicable Law or regulation (including the NYSE rules and regulations)Law, (iviii) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser constitutes Merger Sub will constitute one Common Share more than 90% of the number of Common Shares that will be issued and outstanding immediately after the issuance of the Top-Up Option Shares and Shares, (viv) the Purchaser Merger Sub has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawnwithdrawn and (v) this Agreement has not been terminated in accordance with Section 6.1; and provided, further, that the aggregate number of Top-Up Option Shares may not exceed the aggregate number of authorized but unissued Common Shares as of the Top-Up Option Exercise Date. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished effected consistent with all applicable legal requirements of all Governmental EntitiesLaws, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only upon the terms and subject to purchasethe conditions set forth in this Section 1.8, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or and the Purchaser at the time of such exercise, shall constitute one share more than 90% of the Shares then outstanding (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that the Top-Up Option shall not be exercisable unless, (i) the Minimum Condition shall have been satisfied and (ii) immediately after such exercise and the issuance of Shares pursuant thereto, the Purchaser reasonably believes that the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then total authorized and unissued Shares, excluding any Shares that are reserved or otherwise committed for issuance. Upon Parent’s request, the Company shall use commercially reasonable efforts to cause its transfer agent to certify in writing to Parent the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately Option and after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of shall pay the Company the aggregate price required to deliver be paid for the Top-Up Option Shares upon in cash for the exercise of the Top-Up Option is subject amount equal to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance aggregate par value of the Top-Up Option Shares, with the balance payable by delivery of a non- negotiable and non-transferable promissory note (ii) no provision of any applicable Law and no judgment, injunction, order or decree the “Promissory Note”). The Promissory Note shall prohibit the exercise of be secured by the Top-Up Option or Shares, be full recourse against Parent and the delivery of Purchaser, be due one year from the date the Top-Up Option Shares in respect are issued and bear interest at the rate of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law 5% per annum and may be prepaid without premium or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actpenalty.

Top-Up Option. (a) The Company hereby grants to Upon the Purchaser recommendation of the board of directors of Barrier, Xxxxxxx has granted us an assignable and irrevocable option (the “Top-Up Option”) to purchasepurchase from Barrier, at a price per share equal to the Offer Price, a the number of Common newly-issued Shares (the “Top-Up Option Shares”) equal to the lesser of (i) the number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common (1) Share more than 90% of the number of Common Shares that will be then-outstanding immediately on a fully diluted basis (after giving effect to the issuance of the Top-Up Option Shares) or (ii) the aggregate number of Shares that Barrier is authorized to issue under its restated certificate of incorporation, but that are not issued and outstanding (and are not subscribed for or otherwise committed to be issued) at the time of exercise of the Top-Up Option. The Top-Up Option may be exercised by the Purchaser, in wholeis exercisable only once, at any such time on or after the date on which as the Purchaser accepts for payment and pays for all Common owns at least 80% of the Shares validly tendered and not validly withdrawn pursuant then outstanding. To exercise the Top-Up Option, Purchaser or Parent must give notice of their election to exercise the Offer (the “Acceptance Date”) and on or Top-Up Option prior to the fifth Business Day tenth (10) business day after the later of the Acceptance Expiration Date and or the expiration date of any subsequent offering period under Rule 14d-11 under offering. The purchase price may be paid by Parent or Purchaser, at its election, either entirely in cash or by executing and delivering to Barrier a promissory note having a principal amount equal to the Exchange Act; purchase price. Any such promissory 23 Table of Contents note will bear interest at the rate of 3% per annum, and will mature not later than the fifth anniversary of the date of execution and delivery of such promissory note and may be prepaid without premium or penalty. Parent or Purchaser may exercise the Top-Up Option, in whole or in part, at any time at or after the Acceptance Time and prior to the earlier of (x) the Effective Time and (y) the termination of the Merger Agreement, provided, however, that the obligation of the Company to deliver Top-Up Option is not exercisable unless, immediately after the exercise of the Top-Up Option and the issuance of Shares upon pursuant thereto, Parent and Purchaser will collectively hold at least 90 percent (90%) of the Shares then outstanding (assuming the issuance of Shares pursuant to the Top-Up Option). The obligation of Barrier to issue Shares in connection with the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (iia) no provision of any applicable Law law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, ; (iiib) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the CompanyBarrier’s shareholders stockholders under applicable Law law or regulation (including including, without limitation, the NYSE NASDAQ rules and regulations, including Rule 4350), ; and (ivc) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered and not withdrawn in the Offer and not validly withdrawnOffer. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all intended to expedite the timing of the completion of the Merger by permitting us to effect a “short-form” merger pursuant to applicable legal requirements Delaware law at a time when the approval of the Merger at a meeting of Xxxxxxx’s stockholders would be assured because our ownership would represent at least a majority of the voting power of all Governmental Entities, including compliance with an applicable exemption from registration of Shares entitled to vote at such a meeting and required to consummate the Top-Up Option Shares under the Securities ActMerger.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.04, to purchase, purchase at a price per share equal to the Offer Price, a Price paid in the Offer that number of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than 9080% of the number shares of Company Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at Shares on a partially diluted basis (assuming conversion or exercise of all deferred stock units but not any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actother derivative securities including stock options); provided, however, that (i) the obligation of the Company to deliver Top-Up Option Shares upon shall not be exercisable for a number of shares of Company Common Stock in excess of the shares of Company Common Stock authorized and unissued or held in the treasury of the Company at the time of exercise, (ii) the Top-Up Option shall not be exercisable unless immediately after such exercise and the issuance of the Top-Up Shares, Merger Sub shall own at least 80% of the outstanding shares of Company Common Stock (determined on a partially diluted basis assuming conversion or exercise of all deferred stock units but not any other derivative securities including stock options) and (iii) the exercise of the Top-Up Option is subject and the issuance and delivery of the Top-Up Shares shall not be prohibited by any Law or Order. Upon Parent’s request, the Company shall use its reasonable best efforts to the conditions that (i) cause its transfer agent to certify in writing to Parent the number of shares of Company Common Stock issued and outstanding as of immediately prior to the exercise of the Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior and after giving effect to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit the exercise of the . The Top-Up Option or shall be exercisable only once, in whole but not in part, at any time following the delivery of the Top-Up Option Shares in respect of such exercise, Offer Closing (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately only after the issuance of the Top-Up Option Shares and (v) the Purchaser Merger Sub has accepted for payment and paid for all shares of Company Common Shares Stock validly tendered in the Offer and not validly withdrawn. The parties shall cooperate ) and prior to ensure that the issuance earlier to occur of (A) the Top-Up Option Shares is accomplished consistent Effective Time and (B) the termination of this Agreement in accordance with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actits terms.

Top-Up Option. (a) The Upon and subject to the occurrence of the Acceptance Date, the Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer Price, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares then owned by Parent or the Purchaser or Parent, Merger Sub and any direct or indirect wholly wholly-owned Subsidiary Subsidiaries of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one is equal to (x) 90% of the number of Common Share more Shares that will be issued and outstanding immediately after the issuance of the Top-Up Option Shares on a fully-diluted basis (including all Common Shares issuable in respect of Company Options or Warrants) or (y) in the event that Merger Sub elects to decrease the Minimum Condition to the Lowered Minimum Condition, the number of unissued Common Shares that the Company is authorized to issue as of the Acceptance Date and which are not reserved for issuance pursuant to the exercise of Company Options or Warrants and which will constitute not less than 90% of the number of Common Shares that will be issued and outstanding immediately after upon the issuance acceptance for payment by Merger Sub of the Common Shares tendered in the Offer (including the Top-Up Option Shares). The Top-Up Option may be exercised by the PurchaserMerger Sub, in wholewhole or in part, at any time on or after within five (5) Business Days following the Expiration Date (the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (Top-Up Option is exercised, the “Acceptance Top-Up Option Exercise Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act); provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no neither any provision of any applicable Law and no nor 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 in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (ivii) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or Parent, Merger Sub and any direct or indirect wholly wholly-owned Subsidiary Subsidiaries of Parent or the Purchaser constitutes one Share more than Merger Sub shall constitute at least 90% of the number of Common Shares that will be issued and outstanding immediately after the issuance exercise of the Top-Up Option on a fully-diluted basis (including all Common Shares issuable in respect of Company Options or Warrants) (unless Merger Sub elects to decrease the Minimum Condition to the Lowered Minimum Condition, in which case such number of Common Shares shall constitute at least 90% of the number of Common Shares that will be issued and outstanding upon the acceptance for payment by Merger Sub of the Common Shares tendered in the Offer (vincluding the Top-Up Option Shares)), (iii) the Purchaser Merger Sub has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawnwithdrawn and (iv) this Agreement has not been terminated in accordance with Section 7.1. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished effected in a manner consistent with all applicable legal requirements of all Governmental EntitiesLaw, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act of 1933, as amended (together with the rules and regulations thereunder, the “Securities Act”).

Top-Up Option. (a) The Company hereby grants Pursuant to the Merger Agreement, Steinway granted to Purchaser an irrevocable option (the “Top-Up Option”) to purchase, purchase at a price per share equal to the Offer Price, a Price an aggregate number of Common newly issued, fully paid and non assessable Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares directly or indirectly owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its affiliates at the time of such exercise of (after giving effect to the Top-Up OptionOffer Closing), constitutes will constitute one Common Share more than 90% of the number of Common outstanding Shares that will be outstanding immediately after the issuance of the Topon a fully-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actdiluted basis; provided, however, that the obligation of the Company to deliver Top-Up Option may not be exercised to the extent (i) the number of Shares issuable upon the exercise of the Top-Up Option is subject to the conditions that (i) would exceed the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common authorized but unissued Shares or the voting power of the Company, in each case, Shares held as treasury stock as of immediately prior to the issuance of the Top-Up Option Shares, Shares (giving effect to Shares reserved for issuance as if such Shares were outstanding) or (ii) no any provision of any applicable Law and no judgment, injunction, order law has the effect of enjoining or decree shall prohibit otherwise prohibiting the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Shares. The Top-Up Option shall be exercised on the Offer Closing Date in accordance with the procedures set forth in the Merger Agreement. The aggregate purchase price payable for the Shares being purchased by Purchaser pursuant to the Top-Up Option will be payable, at Purchaser’s Option, (i) in cash, by wire transfer of same-day funds or (ii) by (a) paying in cash, by wire transfer of same-day funds, an amount equal to not less than the aggregate par value of the Shares purchased pursuant to the Top-Up Option and (b) executing and delivering to Steinway a promissory note having a principal amount equal to the aggregate purchase price pursuant to the Top-Up Option less the amount paid in cash pursuant to clause (a) above. The promissory note: (A) will be due on the first anniversary of the closing of the purchase of Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations)Option, (ivB) upon exercise will bear simple interest of the Top-Up Option5% per annum, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that payable in arrears at maturity, (C) will be outstanding immediately after the issuance of the Top-Up Option Shares full recourse to Purchaser, (D) may be prepaid, in whole or in part, at any time without premium or penalty and (vE) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actwill have no other material terms.

Top-Up Option. (a) The Company hereby grants Pursuant to the Merger Agreement, LaCrosse has granted Purchaser an irrevocable option (the “a Top-Up Option”) Option to purchase, purchase at a price per share equal to the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) Shares up to that number of newly and validly issued, fully paid and non-assessable shares of LaCrosse common stock that, when added to the number of Common Shares shares of LaCrosse common stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the ABC-MART and Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of shall constitute the number of Common Shares that will be outstanding immediately after the issuance of the TopShort-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange ActForm Threshold; provided, however, that the obligation Top-Up Option may not be exercised (i) to purchase an amount of the Company to deliver Top-Up Option Shares upon in excess of the number of shares of LaCrosse common stock authorized and unissued (treating shares owned by LaCrosse as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, Option; (ii) no provision of any if prohibited by applicable Law law; and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) unless the issuance of Top-Up Option Shares pursuant to Acceptance Time shall have occurred. Purchaser will pay LaCrosse the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) Offer Price for each Share acquired upon exercise of the Top-Up Option. The exercise price for the Top-Up Option is to be paid either in cash or by delivery of a promissory note, bearing simple interest at 2% per annum, made by Purchaser and due and payable within one year. Purchaser may not exercise the number of Common Shares owned by Parent or Top-Up Option if the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance Merger Agreement is validly terminated. The purpose of the Top-Up Option is to permit ABC-MART to complete the Merger under the “short-form” merger provisions of the WBCL without the necessity of holding a meeting of LaCrosse’s shareholders to approve the Merger. The Merger. The Merger Agreement provides that at the Effective Time: • Purchaser will be merged with and into LaCrosse and Purchaser will cease to exist; • LaCrosse will be the Surviving Corporation; • the articles of incorporation and bylaws of LaCrosse as in effect immediately prior to the Merger will be the articles of incorporation and bylaws of the Surviving Corporation after the Merger; • the directors and officers of Purchaser will become the directors and officers of the Surviving Corporation; • all Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered held in the treasury of LaCrosse and all Shares owned by LaCrosse, ABC-MART, Purchaser or any of their respective wholly owned subsidiaries will be canceled without consideration; • all other outstanding Shares (excluding any Dissenting Shares) will be converted into the right to receive the Offer Price, without interest; and not validly withdrawnTable of Contents • Purchaser’s common stock will be converted into the new common stock of LaCrosse as the Surviving Corporation. Conditions to the Merger. The parties shall cooperate obligations of ABC-MART, Purchaser and LaCrosse to ensure that complete the issuance Merger are subject to the satisfaction (or waiver) of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration following conditions: • the adoption and approval of the Top-Up Option Merger Agreement by shareholders holding a majority of LaCrosse’s outstanding Shares, if required by applicable law; • the absence of any law, order or injunction preventing the Merger or making the closing of the Merger illegal; and • the purchase of the Shares under pursuant to the Securities ActOffer.

Top-Up Option. (a) The Company hereby irrevocably grants to the Purchaser Acquisition Sub an irrevocable option (the “Top-Up Option”) ), exercisable only upon the terms and conditions set forth in this Section 2.4, to purchase, at a price per share equal to the Offer Price, a purchase that number of Common authorized and unissued Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Common Company Shares beneficially owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and/or Acquisition Sub at the time of exercise of the Top-Up Optionsuch exercise, constitutes one Common Share shall constitute 100 Company Shares more than 90% of the sum of the following: (A) the total number of Common Company Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by Shares plus (B) the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common total number of Company Shares validly tendered and not validly withdrawn that are issuable pursuant to the Offer Company Warrants outstanding at such time (including any such Company Warrants that have been conditionally exercised prior to such time) (the “Acceptance DateShort-Form Threshold”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price. Notwithstanding anything to the contrary set forth in this Agreement, the Top-Up Option shall not be exercisable (i) if the Merger can be effected pursuant to Section 251(h) of the DGCL; (ii) no provision unless immediately after such exercise and the issuance of Company Shares pursuant thereto, Acquisition Sub would own more than the Short-Form Threshold; (iii) for a number of Company Shares in excess of the Company’s then authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued) or (iv) if any applicable Law and no judgment, injunction, order or decree any applicable Order shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActShares.

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer PricePer Share Amount, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one Common Share more than 9090.0005% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, Parent or Merger Sub at any time on or after the expiration date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to of the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day business day after the later of (1) the Acceptance Date and expiration date of the Offer or (2) the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actperiod; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued conditions, unless waived by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, that (iiA) no provision of any applicable Law Laws and no judgment, injunction, order or decree Restraint shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiB) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation Laws (including including, without limitation, the NYSE NASDAQ rules and regulations), (ivC) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub constitutes one Share more than 9090.0005% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and Shares, (vD) the Purchaser number of Top-Up Option Shares issued pursuant to the Top-Up Option shall in no event exceed the number of authorized and unissued shares of common stock of the Company not otherwise reserved for issuance for outstanding Company Options or other obligations of the Company, (E) Merger Sub has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawnwithdrawn and (F) the Minimum Condition shall have been satisfied. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesLaws, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act. Parent and Merger Sub shall have the right, but shall not be required to, exercise the Top-Up Option in its sole discretion and may only exercise the Top-Up Option if following its exercise, the condition set forth in clause (C) would be satisfied.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) to purchasepurchase from the Company, at a price per share equal to the Offer Price, a number of newly issued shares of Common Shares Stock (the “Top-Up Option Shares”) that, when added to the number of shares of Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one share of Common Share Stock more than 90% of the number of shares of Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the PurchaserMerger Sub, in wholewhole but not in part, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) Date hereunder and on or prior to the fifth (5th) Business Day after the later of the Acceptance Date and or the expiration date of any subsequent offering period under Rule 14d-11 under the Exchange Actperiod; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law law and no judgment, injunction, order or decree Restraint shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders stockholders under applicable Law law or regulation (including the NYSE pursuant to any applicable securities exchange listing rules and regulations), (iviii) upon exercise of the Top-Up Option, the number of shares of Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub constitutes one Share share of Common Stock more than 90% of the number of shares of Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares Shares, (iv) in no event shall the Top–Up Option be exercisable for a number of shares in excess of the aggregate of the number of shares of Common Stock held as treasury shares by the Company and the Company Subsidiaries and the number of shares of Common Stock that the Company is authorized to issue under its corporate charter but that are not issued and outstanding (and are not otherwise reserved for issuance) as of immediately prior to the exercise of the Top–Up Option and (v) the Purchaser has Merger Sub shall have accepted for payment and paid for all shares of Common Shares Stock validly tendered in the Offer and not validly properly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entitieslaws, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) to purchase), at a price per share equal exercisable only upon the terms and subject to the conditions set forth herein, to purchase at the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Parent, Merger Sub and their Affiliates at the time of such exercise of (after giving effect to the Top-Up OptionOffer Closing), constitutes shall constitute one Common Share more than 90% of the number of Common outstanding Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Acta fully diluted basis; provided, however, that the obligation of the Company to deliver Top-Up Option shall not be exercisable to the extent (i) the number of Shares issuable upon the exercise of the Top-Up Option is subject to the conditions that (i) would exceed the number of Top-Up Option authorized but unissued Shares to be issued by or Shares held in the treasury of the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option SharesShares (giving effect to Shares reserved for issuance under all outstanding stock options, restricted equity and any other rights to acquire the Shares as if such Shares were outstanding) or (ii) no any other provision of any applicable Law and no or judgment, injunction, injunction order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exerciseShares; provided, (iii) the issuance of Top-Up Option Shares pursuant to further, that the Top-Up Option would shall terminate upon the termination of this Agreement in accordance with its terms. The Top-Up Option shall not require approval of be exercisable until such time as Merger Sub shall have accepted for payment the Company’s shareholders under applicable Law or regulation (including Shares tendered pursuant to the NYSE rules Offer, and regulations), (iv) upon exercise of in no event shall the Top-Up OptionOption be exercisable (A) if the Minimum Tender Condition shall have been waived, (B) more than once or (C) unless, immediately after such exercise and the number issuance of Common Shares owned by pursuant thereto, and accounting for the limitations set forth herein, Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes and Merger Sub would hold one Share more than 90% of the number of Common outstanding Shares that will be outstanding immediately after the issuance of the Topon a fully-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actdiluted basis.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer Price, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later earlier of the Acceptance Date Effective Time and the expiration termination of any subsequent offering period under Rule 14d-11 under the Exchange Actthis Agreement pursuant to Section 8.1; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares beneficially owned by Parent or the voting power of the Company, in each case, as of Purchaser immediately prior to the issuance time of exercise of the Top-Up Option Sharesconstitutes at least 65% of the number of Common Shares then outstanding, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of exceed the Company’s shareholders under applicable Law or regulation (including the NYSE rules authorized and regulations)unissued Common Shares, (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes will constitute one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entitiesapplicable Laws, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.

Top-Up Option. (a) The Prior to the scheduled Acceptance Time, Parent and the Company shall confer and mutually determine, in good faith, after consulting with their respective outside legal counsel, whether the Merger remains eligible to be effected pursuant to Section 251(h) of the DGCL. Unless Parent and the Company determine that the Merger is ineligible to be effected pursuant to Section 251(h) of the DGCL (the “251(h) Inapplicable Determination”) the Merger shall be effected in accordance with Section 251(h) of the DGCL. If prior to the Effective Time, Parent and the Company make a 251(h) Inapplicable Determination then, contingent and effective upon the occurrence of the 251(h) Inapplicable Determination and the Acceptance Time, the Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only once and only upon the terms and subject to purchasethe conditions set forth in this Section 1.4, and only for so long as this Agreement has not been terminated pursuant to Section 7.1, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of validly issued, fully paid and nonassessable shares of Company Common Shares Stock (the “Top-Up Option Shares”) that, when added equal to up to the number of then-available authorized and unissued shares of Company Common Stock; provided, however, that the Top-Up Option shall not be deemed to be exercised (i) to purchase an amount of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Company as treasury stock as unissued) at the time of exercise of the Top-Up Option, constitutes one Option (treating shares of Company Common Share more than 90% Stock that the Company may be required to issue upon the vesting (including vesting solely as a result of the number consummation of the Offer), conversion, settlement or exercise of all then outstanding warrants, options, benefit plans, obligations or securities convertible or exchangeable into shares of Company Common Shares that will Stock, or other rights to acquire or be outstanding issued shares of Company Common Stock, regardless of the conversion or exercise price or other terms and conditions thereof, as if such shares were outstanding), (ii) unless immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment such exercise and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, Purchaser and Parent shall, when added to the shares of Company Common Stock owned by Purchaser and Parent, own at least 90% of the shares of the Company Common Stock outstanding (iiexcluding from the calculation of the number of shares of Company Common Stock Purchaser and Parent then owns, but not from the calculation of then-outstanding shares of Company Common Stock, the Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) no provision of any applicable Law and no judgmentimmediately after the Acceptance Time (the “Short-Form Threshold”), injunction(iii) unless the Acceptance Time shall have occurred, order or decree shall prohibit the exercise (iv) unless Purchaser irrevocably commits upon acquisition of the Top-Up Option or Shares to immediately effect the delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares Merger pursuant to Section 2.3 and (v) if the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance and delivery of the Top-Up Option Shares and compliance with this Section 1.4 shall be prohibited by any outstanding order or Law (v) excluding any rules of the NYSE that require stockholder approval). Purchaser has accepted for payment and shall pay the Company the aggregate purchase price required to be paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actas set forth in Section 1.4(b).

Top-Up Option. (a) The Company hereby grants Arctic Cat granted to Purchaser the Purchaser an irrevocable option (the “Top-Top Up Option”) , exercisable only after the Acceptance Time, to purchase, at a price per share equal to the Offer Price, a an aggregate number of Common Shares (the “Top-"Top Up Option Shares”") equal to the lowest number of Shares that, when added to the number of Common Shares owned owned, directly or indirectly, by Parent or Purchaser and Textron, in the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser aggregate, at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes will constitute one Share more than 90% of the number of Common Fully Diluted Shares that will be outstanding immediately (after giving effect to the issuance of the Top-Top Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawnShares). The parties shall cooperate to ensure that Top Up Option is not exercisable unless, immediately after such exercise and the issuance of the TopTop Up Option Shares, Textron and Purchaser would then, directly or indirectly, hold, in the aggregate, at least 90% of the outstanding Shares. The Top Up Option is also not exercisable for a number of Shares in excess of Arctic Cat's total authorized and unissued Shares. The Top Up Option will be exercisable once, to the full number of the Top Up Option Shares then purchasable under the Top Up Option to reach one Share more than 90% of the Fully Diluted Shares. Purchaser is required to pay the Top Up Consideration. The Top Up Consideration will consist of (i) an amount equal to the par value of the Shares issued pursuant to the Top Up Option payable in cash and (ii) an amount equal to the balance of the Top Up Consideration payable by cash or issuance of a promissory note of Purchaser or, at Purchaser's election, any combination of cash and a promissory note. Any such promissory note issued by Purchaser (i) will bear interest at the rate per annum equal to the short-term applicable federal rate on the date of execution and delivery of such promissory note, payable in arrears at maturity, (ii) will mature on the first anniversary of the date of execution and delivery of such promissory note, (iii) may be prepaid without premium or penalty and (iv) will have no other material terms. The Arctic Cat Board has determined that the Top Up Consideration for the Top Up Option Shares is accomplished consistent adequate in accordance with the MBCA and has otherwise taken all applicable legal requirements of all Governmental Entitiessteps necessary such that, including compliance with an applicable exemption from registration of upon issuance and delivery, the Top-Top Up Option Shares under will be validly issued, fully paid and non-assessable. If any demand for fair value is made of Dissenting Shares and the Securities ActTop Up Option was exercised prior to the Effective Time, then for purposes of determining the fair value of any Dissenting Shares, the cash received and/or value of the promissory note received by Arctic Cat in payment of the exercise price of the Top Up Option will be treated as if it had not been paid to or received by Arctic Cat, and the Shares issued upon exercise of the Top Up Option will be treated as if they were not issued or outstanding. Closing of the Merger Unless the Merger Agreement is terminated prior to such time in accordance with its terms, the closing of the Merger (the "Merger Closing") will occur on the third business day following the day on which the satisfaction or, to the extent permitted by applicable law, waiver of all of the conditions set forth in the Merger Agreement (other than conditions that by their nature are to be satisfied at the Merger Closing, but subject to the satisfaction or, to the extent permitted by applicable law, waiver of those conditions) occurs or such other date as the parties may mutually agree. Concurrently with the Merger Closing, Textron and Arctic Cat will cause the articles of merger to be filed with the Secretary of State of the State of Minnesota. The Merger will become effective at the time the articles of merger has been so filed or at another time as is agreed by the parties and specified in the articles of merger in accordance with the relevant provisions of the MBCA. On the terms and subject to the conditions of the Merger Agreement, and in accordance with the MBCA, at the Effective Time, (i) Purchaser will be merged with and into Arctic Cat and the separate corporate existence of Purchaser will cease, (ii) Arctic Cat will survive the Merger as the Surviving Company and an indirect wholly owned subsidiary of Textron and will continue to be governed by the MBCA, and (iii) the separate corporate existence of Arctic Cat with all its rights, privileges, immunities, powers and 41 franchises will continue unaffected by the Merger, and all of their debts, liabilities and duties will become debts, liabilities and duties of the Surviving Company.

Top-Up Option. (a) The Subject to Sections 1.8(b) and (c), the Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to purchase from the Offer Price, a Company the number of shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or and Merger Sub as of immediately prior to the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes one Common Share share more than 90% of the number of shares of Company Common Shares that will be Stock then outstanding immediately after (the “Number of Top-Up Option Shares”), assuming the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject only to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, legal restraint (ii) no provision excluding any listing requirement of any applicable Law and no judgment, injunction, order or decree shall prohibit securities exchange) that has the effect of preventing the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise, exercise shall be in effect and (iiiii) the issuance Number of Top-Up Option Shares shall not exceed the aggregate of (A) the number of shares of Company Common Stock held as treasury shares by the Company and any Company Subsidiary (as defined in Section 3.1) plus (B) the number of shares of Company Common Stock that the Company is authorized to issue under its certificate of incorporation but that are not issued and outstanding (and are not reserved for issuance (1) pursuant to the Top-Up Option would not require approval exercise of Options (as defined in Section 2.4(a)) that have been granted at the Company’s shareholders under applicable Law time of such exercise or regulation (including 2) in connection with the NYSE rules and regulationssettlement of Restricted Stock Units (as defined in Section 2.4(b)), (iv) upon in each case, as of immediately prior to the exercise of the Top-Up Option. For the avoidance of doubt, shares of Company Common Stock (if any) reserved for issuance or otherwise issuable in connection with the number of Common Shares owned Company’s 2.875% Senior Subordinated Convertible Notes due 2035 (the “Convertible Notes”) shall be available for issuance by Parent or the Purchaser or Company in connection with any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance exercise of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActOption.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only after the Acceptance Time and only upon the terms and subject to purchasethe conditions set forth herein, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned acquired by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or pursuant to the Purchaser at the time of exercise of the Top-Up OptionOffer, constitutes one Common Share share more than 90% of the number of Common Fully Diluted Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option shall not be exercisable (i) to the extent the number of Shares issuable upon exercise of the Top-Up Option would exceed the Company’s then authorized and unissued Shares (including as authorized and unissued Shares, for purposes of this Section 1.8, any Shares held in the treasury of the Company and the Company Subsidiaries) and (ii) if immediately after such exercise and the issuance of Shares pursuant to the Top-Up Option, the Short Form Threshold would not be reached (assuming the issuance of the Top-Up Option Shares). Upon Parent’s request, the Company shall use its reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of and immediately prior after giving effect to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit . The Purchaser may pay the exercise of Company the Top-Up Option or the delivery of aggregate price required to be paid for the Top-Up Option Shares either entirely in respect of such exercisecash or, at the Purchaser’s election, by paying (iiix) in cash an amount equal to not less than the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance aggregate par value of the Top-Up Option Shares and (vy) executing and delivering to the Purchaser has accepted for payment and Company a promissory note having a principal amount equal to the balance of the aggregate purchase price pursuant to the Top-Up Option less the amount paid for all Common Shares validly tendered in cash (the Offer and not validly withdrawn“Promissory Note”). The parties Promissory Note shall cooperate to ensure be unsecured, full recourse, non-negotiable and non-transferable, bear simple interest at 2% per annum, shall provide that principal and interest is due one year after the issuance purchase of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesShares, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actand shall be prepayable in whole or in part without premium or penalty.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.3, to purchase, purchase at a price per share equal to the Offer Price, a Price paid in the Offer up to that number of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than 90% of the number shares of Company Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Shares; provided, however, that (i) the Top-Up Option Sharesshall not be exercisable for a number of shares of Company Common Stock in excess of the number of shares of Company Common Stock authorized and unissued (treating shares held in the treasury of the Company as unissued) and not reserved for issuance at the time of exercise of the Top-Up Option and (ii) the exercise of the Top-Up Option and the issuance and delivery of the Top-Up Shares shall not be prohibited by any Law or Judgment. The Top-Up Option may shall be exercised by the Purchaser, in whole, exercisable at any one time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to following the Offer (the “Acceptance Date”) Closing and on or prior to the fifth Business Day after earlier to occur of (a) the later Effective Time and (b) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the this Agreement in accordance with its terms. The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject only to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, Legal Restraint (ii) no provision other than any listing requirement of any applicable Law and no judgment, injunction, order or decree shall prohibit national securities exchange) that has the effect of preventing the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise, exercise shall be in effect and (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (ivii) upon exercise of the Top-Up Option, the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and Merger Sub constitutes at least one Share share more than 90% of the number shares of Company Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawnShares. The parties hereto acknowledge and agree that, notwithstanding anything to the contrary herein, the failure to obtain approval of the Company’s stockholders of the issuance of Company Common Stock pursuant to the Top-Up Option as a result of applicable stock exchange listing requirements shall cooperate not cause any condition of the Offer not to ensure that be met. Upon Parent’s written request, the Company shall use its reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of shares of Company Common Stock issued and outstanding as of immediately prior to the exercise of the Top-Up Option after giving effect to the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities ActShares.

Top-Up Option. (a) The Company hereby grants to the Purchaser Sub an irrevocable option (the “Top-Up Option”) ), to purchase, at a price per share Share equal to the Offer Price, a such number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser or and Sub and any direct or indirect wholly other wholly-owned Subsidiary of Parent or the Purchaser at immediately prior to the time of exercise of the Top-Up Option, constitutes at least one Common Share share more than 90% of the number of Common Shares that will be outstanding Adjusted Outstanding Share Number immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may shall only be exercised by the Purchaserexercisable once, in wholewhole and not in part, at or following the Offer Closing at any time on or after during the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to five (5) Business Day period following the Offer Closing (the “Acceptance Date”) and on or, if applicable, one or more subsequent offering periods), but in any event prior to the fifth Business Day after earlier to occur of (i) the later Effective Time and (ii) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actthis Agreement in accordance with its terms; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon shall not be exercisable unless (A) immediately after the exercise of the Top-Up Option is subject to and the conditions that (i) the number issuance of Top-Up Option Shares to (and not before), the Short Form Threshold would be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to reached (assuming the issuance of the Top-Up Option Shares), (iiB) no provision Governmental Entity of competent jurisdiction shall have issued or granted any applicable Law and no judgmentorder, writ, injunction, order judgment or decree shall prohibit prohibiting the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, ; and (iiiC) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares will not cause the Company to have shares of Company Common Stock outstanding in excess of the number of shares of Company Common Stock authorized and unissued (vtreating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the Purchaser has accepted for payment time of exercise of the Top-Up Option; provided, further, that Sub shall, and paid for all Common Shares validly tendered in Parent shall cause Sub to, exercise the Top-Up Option on the same day as the Offer Closing if possible and if that is not validly withdrawnpossible as soon thereafter as possible, in each case in accordance with this Section 1.03(a). The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesLaw, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act. The Top-Up Option Shares have been duly authorized by the Company Board and, when issued in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable.

Top-Up Option. (a) The Immediately following Acceptance, the Company hereby grants shall grant to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer Price, a number of newly issued shares of Common Shares Stock (the “Top-Up Option Shares”) that, when added to the number of shares of Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one share of Common Share Stock more than 90% of the number of shares of Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaserexercised, in wholewhole or in part, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) any Expiration Date hereunder and on or prior to the fifth (5th) Business Day after the later of the Acceptance Expiration Date and or the expiration date of any subsequent offering period under Rule 14d-11 under the Exchange Actperiod; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (iA) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance exercise of the Top-Up Option SharesOption, Parent and Merger Sub own at least 80% of the total number of shares of Common Stock then outstanding, (iiB) no provision of any applicable Law and no judgment, injunction, order or decree Restraint shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiC) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders stockholders under applicable Law the Act or any rule or regulation (including of the NYSE rules Nasdaq Global Select Market and regulations)would not obligate the Company to issue or deliver any Company Securities pursuant to preemptive rights provisions contained in any agreement to which the Company is a party, (ivD) upon exercise of the Top-Up Option, the number of shares of Common Shares owned Stock owned, directly or indirectly, by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser Merger Sub constitutes one Share share of Common Stock more than 90% of the number of shares of Common Shares Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares and Shares, (vE) the Purchaser has accepted for payment and paid for all Common number of Top-Up Option Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate issued pursuant to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements shall in no event exceed the number of all Governmental Entities, including compliance with an applicable exemption from registration authorized and unissued shares of Common Stock not otherwise reserved for issuance for outstanding Company Equity Awards or other obligations of the Top-Up Option Shares under Company and (F) the Securities ActAcceptance shall have occurred.

Top-Up Option. (a) The Company hereby grants to the Purchaser and Parent an irrevocable option (the “Top-Up Merger Option”) to purchase, at a price per share equal purchase up to the Offer Price, a that number of newly issued shares of Company Common Shares Stock (the “Top-Up Merger Option Shares”) equal to the number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the and Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise immediately following consummation of the Top-Up OptionOffer, constitutes shall constitute one Common Share share more than 90% of the number shares of Company Common Shares that will be Stock then outstanding immediately (after giving effect to the issuance of the Top-Up Merger Option Shares), as certified by the Company, for consideration per Merger Option Share equal to the Offer Price. The Top-Up Merger Option may shall be exercised by the Purchaser, in whole, at any time on or exercisable only after the date on which the Purchaser accepts purchase of and payment for payment and pays for all shares of Company Common Shares validly tendered and not validly withdrawn Stock pursuant to the Offer by Parent or Purchaser as a result of which Parent and Purchaser own at least 80% of the then outstanding shares of Company Common Stock. Notwithstanding the foregoing, the Merger Option (i) shall be exercisable only once and shall in no event be exercisable for a number of shares of Company Common Stock in excess of the “Acceptance Date”Company’s then authorized and unissued shares of Common Stock (after taking into account any shares of Company Common Stock reserved for issuance upon exercise of any Company Stock Options or under the Company Purchase Plan then outstanding) and on or prior (ii) shall not be exercisable to the fifth Business Day after extent prohibited by any applicable Law or to the later extent approval of the Acceptance Date Company’s stockholders would be required to issue any Merger Option Shares. Parent and the expiration of Purchaser understand that any subsequent offering period under Rule 14d-11 Merger Option Shares will not be registered under the Exchange Act; providedSecurities Act or any other applicable securities law, howeverand will be issued in reliance upon an exemption thereunder for transactions not involving a public offering, and that any certificates representing the obligation Merger Option Shares may include any legends required by applicable securities laws. In the event that Parent or Purchaser wish to exercise the Merger Option, Purchaser shall give the Company one (1) Business Day’s written notice specifying the number of shares of Company Common Stock that are or will be owned by Parent and Purchaser following consummation of the Offer and specifying a place and a time for the closing of the purchase. The Company shall, as soon as practicable following receipt of such notice, deliver written notice to deliver Top-Up Purchaser specifying the number of Merger Option Shares Shares. At the closing of the purchase of the Merger Option Shares, the portion of the purchase price owed upon the exercise of the Top-Up Merger Option is subject to that equals the conditions that product of (i) the number of Top-Up Option shares of Shares purchased pursuant to the Merger Option, multiplied by (ii) the Offer Price, shall be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of paid to the Company, in each case, as of immediately prior to at the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary election of Parent and Purchaser, in cash (or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Actby wire transfer or cashier’s check).

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer PriceCommon Per Share Amount, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be issued and outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may shall be exercised by the PurchaserMerger Sub, in wholewhole or in part, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) Expiration Date and on or prior to the fifth Business Day after the later of (x) the Acceptance Expiration Date and or (y) the expiration of any subsequent offering period under Rule 14d-11 under (the Exchange Actdate on which the Top-Up Option is exercised, the “Top-Up Option Exercise Date”); provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no neither any provision of any applicable Law and no nor 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 in respect of such exercise, (iiiii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders stockholders under applicable Law or regulation (including the NYSE rules and regulations)Law, (iviii) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser constitutes Merger Sub will constitute one Common Share more than 90% of the number of Common Shares that will be issued and outstanding immediately after the issuance of the Top-Up Option Shares and Shares, (viv) the Purchaser Merger Sub has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawnwithdrawn and (v) this Agreement has not been terminated in accordance with Section 6.1; and provided, further, that the aggregate number of Top-Up Option Shares may not exceed the aggregate number of authorized but unissued Common Shares as of the Top-Up Option Exercise Date. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished effected consistent with all applicable legal requirements of all Governmental EntitiesLaws, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.

Top-Up Option. (a) The Company hereby grants to the Purchaser Parent and Merger Sub an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer PricePer Share Amount, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Sub at the time of exercise of the Top-Up Option, constitutes one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may shall be exercised by the PurchaserParent or Merger Sub, in wholewhole or in part, at any time on or after the expiration date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to of the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of (i) the Acceptance Date and expiration date of the Offer or (ii) the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actperiod; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (iA) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to and after giving effect to the issuance of the Top-Up Option Shares, (iiB) no provision of any applicable Law law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise, (iiiC) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders stockholders under applicable Law law or regulation (including the NYSE including, without limitation, New York Stock Exchange rules and regulations), (ivD) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly wholly-owned Subsidiary of Parent or the Purchaser Merger Sub constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares Shares, and (vE) the Purchaser Merger Sub has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Act. The Top-Up Option shall be exercised (and may only be exercised) if following its exercise, the condition set forth in clause (D) above would be satisfied.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) ), exercisable only upon the terms and subject to the conditions set forth herein and only on or after the Acceptance Time, to purchase, at a price per share equal to the Offer Price, a an aggregate number of shares of Common Shares Stock (the “Top-Up Option Shares”) that, when added to the number of Common shares of Shares owned by Parent or the and Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise immediately following consummation of the Top-Up OptionOffer, constitutes shall constitute one Common Share (1) share more than ninety percent 90% of the number shares of Common Shares that will be Stock then outstanding immediately on a fully diluted basis, after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior giving effect to the issuance of the Top-Up Option Shares; provided, (ii) no provision of any applicable Law and no judgmenthowever, injunction, order or decree shall prohibit the exercise of that the Top-Up Option or the delivery of the Top-Up Option Shares in respect of shall not be exercisable unless, immediately after such exercise, (iii) exercise and the issuance of Top-Up Option Shares shares of Common Stock pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Optionthereto, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will Short Form Threshold would be outstanding immediately reached (after giving effect to the issuance of the Top-Up Option Shares); provided, further, that in no event shall the Top-Up Option be exercisable for a number of shares of Common Stock in excess of the Company’s total authorized and unissued shares of Common Stock, and excluding any shares that are reserved or otherwise committed for issuance (treating any Shares and (v) held in the treasury of the Company as unissued). Purchaser has accepted for payment and may pay the Company the aggregate price required to be paid for all Common the Top-Up Shares validly tendered either (i) entirely in cash or (ii) at Purchaser’s election, by (x) paying in cash an amount equal to not less than the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance aggregate par value of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements and (y) executing and delivering to the Company a promissory note having a principal amount equal to the balance of all Governmental Entities, including compliance with an applicable exemption from registration of the aggregate purchase price pursuant to the Top-Up Option Shares under less the Securities Actamount paid in cash pursuant to the preceding clause (x) (a “Promissory Note”). Any such Promissory Note shall be full recourse against Parent and Purchaser and (i) shall bear interest per annum at the rate equal to the prime lending rate at the time such note is paid as published by The Wall Street Journal, (ii) be secured by the Top-Up Shares, (iii) shall mature on the first (1st) anniversary of the date of execution and delivery of such Promissory Note and (iv) may be prepaid, in whole or in part, without premium, penalty or prior notice.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.3, to purchase, purchase at a price per share equal to the Offer Price, a Price up to that number of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than 90% of the number shares of Company Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Shares; provided, however, that (i) the Top-Up Option Sharesshall not be exercisable for a number of shares of Company Common Stock in excess of the number of shares of Company Common Stock authorized and unissued (treating shares held in the treasury of the Company as unissued) and not reserved for issuance at the time of exercise of the Top-Up Option and (ii) the exercise of the Top-Up Option and the issuance and delivery of the Top-Up Shares shall not be prohibited by any Law (other than any listing requirement of any national securities exchange) or Judgment. The Top-Up Option may shall be exercised by the Purchaser, in whole, exercisable at any one time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to following the Offer (the “Acceptance Date”) Closing and on or prior to the fifth Business Day after earlier to occur of (a) the later Effective Time and (b) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the this Agreement in accordance with its terms. The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject only to the conditions condition that no Legal Restraint (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision other than any listing requirement of any applicable Law and no judgment, injunction, order or decree shall prohibit national securities exchange) that has the effect of preventing the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exerciseexercise shall be in effect. The parties hereto acknowledge and agree that, (iii) notwithstanding anything to the contrary herein, the failure to obtain approval of the Company’s shareholders of the issuance of Top-Up Option Shares Company Common Stock pursuant to the Top-Up Option would as a result of applicable stock exchange listing requirements shall not require approval cause any condition of the CompanyOffer not to be met. Upon Parent’s shareholders under applicable Law or regulation (including written request, the NYSE rules Company shall use its reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of shares of Company Common Stock issued and regulations), (iv) upon outstanding as of immediately prior to the exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately Option after giving effect to the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawnShares. The parties Company agrees that it shall cooperate to ensure reserve and maintain free from preemptive rights out of its authorized but unissued shares of Company Common Stock a sufficient number of shares of Company Common Stock so that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements may be exercised subject only to the reservation of all Governmental Entities, including compliance with an applicable exemption from registration such shares of Company Common Stock pursuant to the Company Stock Plans as in effect as of the Top-Up Option Shares under the Securities Actdate hereof.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.4, to purchase, purchase at a price per share equal to the Offer Price, a Price that number of Common newly issued Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall result in Parent and its Subsidiaries owning one Common Share share more than ninety percent (90% %) of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by Shares on a fully diluted basis, which assumes conversion or exercise of all derivative securities regardless of the Purchaserconversion or exercise price, in whole, at any time on the vesting schedule or after the date on which the Purchaser accepts for payment other terms and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer conditions thereof (the “Acceptance DateShort Form Threshold”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act); provided, however, that (i) the obligation of the Company to deliver Top-Up Option shall not be exercisable for a number of Shares upon in excess of the Shares authorized and unissued or held in the treasury of the Company at the time of exercise of the Top-Up Option (giving effect to the Shares issuable pursuant to all then-outstanding Company Stock Options and any other rights to acquire Company Common Stock as if such Shares were outstanding) and (ii) the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to and the issuance of the Top-Up Option Shares, (ii) 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 Option Shares shall not, in respect the reasonable judgment of such exerciseParent and the Company, (iii) the issuance of be prohibited by any Law or Order. The Top-Up Option Shares pursuant shall be exercisable only once, and only in whole but not in part, and subject to the provisions in the immediately preceding sentence, Parent agrees to cause Merger Sub to, and Merger Sub shall, exercise the Top-Up Option would promptly (but in no event later than one (1) Business Day) after the later of (x) the Offer Closing and (y) the expiration of any permitted subsequent offering period, as applicable, if the number of Shares owned by Merger Sub at such time does not require approval of meet the Company’s shareholders under applicable Law or regulation (including Short Form Threshold and if and only if after giving effect to the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, Merger Sub would own in the number of Common aggregate Shares owned by Parent or sufficient to meet the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Short Form Threshold. The Top-Up Option Shares shall terminate with and prior to the earlier to occur of (A) the Effective Time and (vB) the Purchaser has accepted for payment and paid for all Common Shares validly tendered termination of this Agreement in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent accordance with all applicable legal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actits terms.

Top-Up Option. (a) The Company hereby grants Op-Tech has granted to the Purchaser an option that is irrevocable option during the term of the Merger Agreement (the “"Top-Up Option”") to purchase, at a price per share Share equal to the Offer Price, a an aggregate number of Common Shares (equal to the “Top-Up Option Shares”) lowest number of Shares that, when added to the number of Common Shares owned by Parent or NRC, Purchaser and any wholly-owned subsidiary of NRC immediately prior to the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise of the Top-Up Option, constitutes will constitute one Common Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance of the Top-Up Option Fully Diluted Shares. The Top-Up Option may be exercised by the Purchaser, Purchaser in whole, at any time on whole or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Actin part; provided, however, that the obligation of the Company to deliver Top-Up Option is not exercisable (1) to the extent the number of Shares issuable upon the exercise of the Top-Up Option is subject would exceed Op-Tech's then authorized and unissued Shares and (2) if immediately after exercise and the issuance of Shares pursuant to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90Option, Purchaser, NRC and their related organizations would hold not less than one Share more than 90% of the number of outstanding Common Shares or (assuming the voting power issuance of the Company, Shares in each case, as of immediately prior to the issuance respect of the Top-Up Option). Purchaser may exercise the Top-Up Option Sharesat any time after all of the conditions to the Offer have been satisfied or waived and Purchaser has accepted for payment all Shares validly tendered in the Offer and not properly withdrawn. The Top-Up Option is intended to expedite the timing of the completion of the Merger by effecting the Merger pursuant to Delaware's "short form" merger statute. The Merger. The Merger Agreement provides that, (ii) no provision after the completion of the Offer and the satisfaction or waiver of certain conditions, Purchaser will be merged with and into Op-Tech, and Op-Tech will continue as the surviving corporation. Op-Tech has agreed in the Merger Agreement that, if stockholder approval for the Merger is required other than pursuant to a short-form merger pursuant to Delaware law, Op-Tech will hold a special meeting of its stockholders as promptly as reasonably practicable following the date upon which the proxy or information statement relating to the special meeting of Op-Tech stockholders is cleared by the Commission. NRC and Purchaser have agreed that, at the special meeting, all of the Shares acquired pursuant to the Offer or otherwise owned by NRC or any applicable Law and no judgmentof its subsidiaries will be voted in favor of adoption of the Merger Agreement. The Merger Agreement further provides that, injunctionnotwithstanding the foregoing, order or decree shall prohibit if, following consummation of the Offer, the exercise of the Top-Up Option or the delivery otherwise, NRC, Purchaser or any other wholly-owned subsidiary of NRC collectively hold at least 90% of the TopFully Diluted Shares, each of NRC, Purchaser and Op-Up Option Shares in respect Tech will take all necessary and appropriate action to cause the Merger to become effective, as soon as reasonably practicable after the acceptance for payment of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law Offer (or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the such other time as when Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than shall have acquired at least 90% of the number Fully Diluted Shares) without a meeting of Common Shares that will be outstanding immediately after the issuance Op-Tech stockholders and in accordance with Section 253 of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities ActDGCL.

Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only after the Acceptance Time and only upon the terms and subject to purchasethe conditions set forth herein, to purchase at a price per share equal to the Offer Price, a Price an aggregate number of Company Common Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Common Shares that, when added to the number of Company Common Shares owned by Parent or the Purchaser Merger Sub or any direct or indirect wholly of Parent’s wholly-owned Subsidiary of Parent or the Purchaser Subsidiaries at the time of exercise of the Top-Up Option, constitutes one Common Share share more than 90% of the number of then outstanding Company Common Shares (on a fully diluted basis) (the “Short-Form Merger Threshold”) that will would be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer (the “Acceptance Date”) and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the obligation of the Company to deliver Top-Up Option Shares upon shall not exceed the number of Company Common Shares then authorized and unissued and not reserved for issuance under the Company Employee Benefit Plans as of the date hereof (including as authorized and unissued Company Common Shares, for purposes of this Section 1.4, any Company Common Shares held in the treasury of the Company and the Company Subsidiaries) (collectively, “Available Shares”) and shall not be exercisable if immediately after exercise and issuance of all Available Shares pursuant to the Top-Up Option, the Short-Form Merger Threshold would not be reached; provided, further, that the Top-Up Option may not be exercisable on more than one occasion. Upon Parent’s request, the Company shall use its reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of Company Common Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of and immediately prior after giving effect to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit . Merger Sub may pay the exercise of Company the Top-Up Option or the delivery of aggregate price required to be paid for the Top-Up Option Shares either entirely in respect of such exercisecash or, at Merger Sub’s election, by paying (iiix) in cash an amount equal to not less than the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will be outstanding immediately after the issuance aggregate par value of the Top-Up Option Shares and (vy) Parent and Merger Sub executing and delivering to the Purchaser has accepted for payment and Company a promissory note having a principal amount equal to the balance of the aggregate purchase price pursuant to the Top-Up Option less the amount paid for all Common Shares validly tendered in cash (the Offer and not validly withdrawn“Promissory Note”). The parties Promissory Note shall cooperate be unsecured, full recourse to ensure Parent and Merger Sub, non-negotiable and non-transferable, shall bear simple interest at 1% per annum, shall provide that principal and interest is due one year after the issuance purchase of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesShares, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actshall be prepayable in whole or in part without premium or penalty and shall have no other material terms.

Top-Up Option. (a) The Company hereby grants to the Purchaser Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on the terms and conditions set forth in this Section 1.03, to purchase, purchase at a price per share equal to the Offer Price, a Price paid in the Offer up to that number of newly issued shares of Company Common Shares Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Shares Stock owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser and its Subsidiaries at the time of exercise of the Top-Up Option, constitutes shall constitute one Common Share share more than 90% of the number shares of Company Common Shares that will be Stock outstanding immediately after the issuance of the Top-Up Shares on a “fully diluted basis” (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof); provided, however, that (i) the Top-Up Option Sharesshall not be exercisable for a number of shares of Company Common Stock in excess of the shares of Company Common Stock authorized and unissued or held in the treasury of the Company at the time of exercise of the Top-Up Option (giving effect to the shares of Company Common Stock issuable pursuant to all then-outstanding stock options, restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding), (ii) the issuance of the Top-Up Shares shall not require approval of the Company’s shareholders under applicable Law (including the rules of The NASDAQ Stock Market LLC (“NASDAQ”)) and (iii) the exercise of the Top-Up Option and the issuance and delivery of the Top-Up Shares shall not be prohibited by any Law or Judgment. The Top-Up Option may shall be exercised by the Purchaser, in whole, exercisable at any one time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to following the Offer (the “Acceptance Date”) Closing and on or prior to the fifth Business Day after earlier to occur of (a) the later Effective Time and (b) the termination of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; provided, however, that the this Agreement in accordance with its terms. The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject only to the conditions condition that (i) no Legal Restraint that has the number effect of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) no provision of any applicable Law and no judgment, injunction, order or decree shall prohibit preventing the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Option, the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes one Share more than 90% of the number of Common Shares that will shall be outstanding immediately after the issuance of the Top-Up Option Shares and (v) the Purchaser has accepted for payment and paid for all Common Shares validly tendered in the Offer and not validly withdrawn. The parties shall cooperate to ensure that the issuance of the Top-Up Option 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 Option Shares under the Securities Acteffect.

Top-Up Option. (a) The Company hereby grants Pursuant to the Purchaser an irrevocable option (the “Top-Up Option”) to purchase, at a price per share equal to the Offer Price, a number of Common Shares (the “Top-Up Option Shares”) that, when added to the number of Common Shares owned by Parent or the Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser at the time of exercise terms of the Top-Up OptionMerger Agreement, constitutes one Common Share more following the Acceptance Time and for so long as the Merger Agreement has not been terminated, if we acquire less than 90% of the number of Common Shares that will be outstanding immediately after outstanding, we would have the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by the Purchaser, in whole, at any time on or after the date on which the Purchaser accepts for payment and pays for all Common Shares validly tendered and not validly withdrawn pursuant to the Offer option (the “Acceptance Date”"top-up option") and on or prior to the fifth Business Day after the later of the Acceptance Date and the expiration of any subsequent offering period under Rule 14d-11 under the Exchange Act; providedpurchase from Xxxxxx Xxxx, however, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the conditions that (i) the number of Top-Up Option Shares to be issued by the Company shall in no event exceed 19.90% of the number of outstanding Common Shares or the voting power of the Company, in each case, as of immediately prior to the issuance of the Top-Up Option Shares, (ii) 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 Option Shares in respect of such exercise, (iii) the issuance of Top-Up Option Shares pursuant to the Top-Up Option would not require approval of the Company’s shareholders under applicable Law or regulation (including the NYSE rules and regulations), (iv) upon exercise of the Top-Up Optioncertain limitations, the number of Common authorized and not outstanding Shares owned by Parent or equal to the number of Shares sufficient to cause DSM and Purchaser or any direct or indirect wholly owned Subsidiary of Parent or the Purchaser constitutes to own one Share more than 90% of the Shares then outstanding, taking into account those Shares outstanding after the exercise of the top-up option. The obligation of Xxxxxx Xxxx to issue Shares upon the exercise of the top-up option is subject only to the conditions that (i) no law, judgment or other legal restraint (excluding any listing requirement of any securities exchange) that has the effect of preventing the exercise of the top-up option or the issuance and delivery of the Shares shall be in effect and (ii) the number of Common Shares subject to the top-up option shall not exceed the aggregate of (x) the number of Shares held as treasury shares by Xxxxxx Xxxx and any subsidiary of Xxxxxx Xxxx plus (y) the number of authorized but unissued (and not reserved for issuance pursuant to the exercise of options) Shares, in each case as of immediately prior to the exercise of the top-up option. The price per Share payable under the top-up option would be equal to the Offer Price. The top-up option may be exercised by Purchaser, in whole but not in part, at any time at or within three (3) business days after the later of (i) the Acceptance Time and (ii) if applicable, the completion of any subsequent offering period for the Offer pursuant to the Merger Agreement. Xxxxxx Xxxx, Purchaser and DSM will use reasonable best efforts to (a) cause the closing of the purchase of Shares pursuant to the top-up option to occur on the same day that will Xxxxxx Xxxx receives notice from Purchaser of the exercise thereof, and as close in time as possible on such day to the time of purchase of the Shares pursuant to the top-up option and (b) cause the Merger to be outstanding immediately after consummated in accordance with Section 253 of the DGCL as close in time as Table of Contents possible to (including, to the extent possible, on the same day as) the issuance of the TopShares pursuant to the top-Up Option up option. In addition, the purchase price payable in connection with the exercise of the top-up option may be paid by us, at our election, either (x) entirely in cash or (y) by paying an amount in cash equal to not less than the aggregate par value of the Shares purchased pursuant to the top-up option and by executing and delivering to Xxxxxx Xxxx a full-recourse promissory note, bearing interest at 5% annually and having a one-year term, for the remainder. Based on information provided by Xxxxxx Xxxx regarding its capitalization, DSM believes that Purchaser would have the ability to exercise the top-up option if (vbut only if) at least approximately 74% of the Shares are purchased pursuant to the Offer (including any subsequent offering period). If Purchaser has accepted for payment and paid for all Common Shares validly tendered in is able to exercise the top-up option, it will thereafter be able to effect a short-form merger pursuant to the DGCL. The Merger. The Merger Agreement provides that, after the completion of the Offer and not validly withdrawnthe satisfaction or waiver of certain conditions, Purchaser will be merged with and into Xxxxxx Xxxx, and Xxxxxx Xxxx will be the surviving corporation. DSM and Purchaser and Xxxxxx Xxxx have agreed in the Merger Agreement that, unless DSM and Purchaser effect a short-form merger pursuant to the DGCL, Xxxxxx Xxxx will hold a special meeting of its stockholders as soon as reasonably practicable following the Acceptance Time for the purpose of adopting the Merger Agreement. As a result of the Offer, following the Acceptance Time, Purchaser will hold sufficient Shares to adopt the Merger Agreement and approve the Merger without the affirmative vote of any other stockholder. DSM and Purchaser have agreed that, at the special meeting, all of the Shares acquired pursuant to the Offer or otherwise owned by DSM or any of its direct or indirect subsidiaries will be voted in favor of adopting the Merger Agreement and, accordingly, the adoption of the Merger Agreement and the Merger would be approved at any such special meeting. The parties shall cooperate to ensure that Merger Agreement further provides that, notwithstanding the issuance foregoing, if following consummation of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements of all Governmental EntitiesOffer, including compliance with an applicable exemption from registration any subsequent offering period, or the exercise of the Toptop-Up Option Shares under up option, DSM and Purchaser (together with any other direct or indirect subsidiaries of DSM) hold in the Securities Actaggregate at least 90% of the outstanding Shares, each of DSM, Purchaser and Xxxxxx Xxxx will take all necessary and appropriate action to cause the Merger to become effective, as soon as reasonably practicable after consummation of the Offer, as a short-form merger pursuant to Section 253 of the DGCL without a meeting of the stockholders of Xxxxxx Xxxx.