Top-Up Option. (a) The Company hereby grants to Sub an irrevocable option (the “Top-Up Option”), exercisable only on the terms and subject to the conditions set forth in this Agreement, to purchase at a price per share equal to the Offer Price paid in the Offer that number of newly issued Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares directly or indirectly owned by Parent or Sub at the time of exercise of the Top-Up Option, shall constitute one share more than ninety percent (90%) of the Shares outstanding immediately after the issuance of the Top-Up Shares (determined on a fully diluted basis); provided, however, that (i) the Top-Up Option shall not be exercisable for a number of Shares in excess of the Shares authorized and unissued at the time of exercise of the Top-Up Option and (ii) the Top-Up Option may not be exercised unless, following the Acceptance Time or after a subsequent offering period, eighty percent (80%) or more of the Shares shall be directly or indirectly owned by Parent or Sub. The Top-Up Option shall be exercisable only once at any time following the Acceptance Time and prior to the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement in accordance with its terms.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Covidien PLC), Agreement and Plan of Merger (Vnus Medical Technologies Inc), Agreement and Plan of Merger (Covidien Group S.a.r.l.)
Top-Up Option. (a) The Subject to clause (c) below, the Company hereby grants to Sub an irrevocable option (the “Top-Up Option”), exercisable only on the terms and subject to the conditions set forth in this Agreement, to purchase at a price per share equal to the Offer Price paid in the Offer up to that number of newly issued Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares directly or indirectly owned by Parent or Sub at the time of exercise of the Top-Up Option, shall constitute one share more than ninety percent (90%) of the Shares outstanding immediately after the issuance of the Top-Up Shares (determined on a fully diluted basis); provided, however, that (i) the Top-Up Option shall not be exercisable for a number of Shares in excess of the Shares authorized and unissued at the time of exercise of the Top-Up Option and (ii) the Top-Up Option may not be exercised unless, following the Acceptance Time or after a subsequent offering period, eighty percent (80%) or more of the Shares shall be directly or indirectly owned by Parent or Sub. The Top-Up Option shall be exercisable only once at any time following the Acceptance Time and prior to the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement in accordance with its terms.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Covidien PLC), Agreement and Plan of Merger (Covidien Delaware Corp.), Agreement and Plan of Merger (Power Medical Interventions, Inc.)
Top-Up Option. (ai) The Subject to Section 1.4(a)(ii) and Section 1.4(a)(iii) hereof, the Company hereby grants to Sub Parent and Purchaser an assignable and irrevocable option (the “Top-Up Option”), exercisable only on the terms and subject to the conditions set forth in this Agreement, ) to purchase at a price per share equal to from the Offer Price paid in Company the Offer that number of newly newly-issued Shares shares of Common Stock (the “Top-Up Option Shares”) equal to the lowest lesser of (i) the number of Shares shares of Common Stock that, when added to the number of Shares directly or indirectly shares of Common Stock owned by Parent or Sub Purchaser at the time of exercise of the Top-Up Option, shall constitute constitutes one share (1) Share more than ninety percent (90%) % of the Shares of Common Stock then outstanding immediately on a fully diluted basis (after giving effect to the issuance of the Top-Up Shares Option Shares) or (determined on a fully diluted basis); provided, however, that (iii) the Top-Up Option shall not be exercisable for a aggregate number of Shares in excess shares of Common Stock that the Shares Company is authorized to issue under its Certificate of Incorporation but that are not issued and unissued outstanding (and are not subscribed for or otherwise committed to be issued) at the time of exercise of the Top-Up Option and (ii) the Top-Up Option may not be exercised unless, following the Acceptance Time or after a subsequent offering period, eighty percent (80%) or more of the Shares shall be directly or indirectly owned by Parent or SubOption. The Top-Up Option shall be exercisable only once once, at any such time following as Purchaser owns at least eighty percent (80%) of the Acceptance Time shares of Common Stock then outstanding and provide notice of exercise of the Top-Up Option prior to the earlier to occur tenth (10) Business Day after the later of (A) the Effective Time and (B) expiration date of the termination Offer or the expiration date of this Agreement in accordance with its termsany subsequent offering period.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Barrier Therapeutics Inc), Agreement and Plan of Merger (Stiefel Laboratories, Inc.)
Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only on the terms and subject to the conditions set forth in this AgreementSection 2.4, to purchase at a price per share equal to the Offer Price paid in the Offer Price, that number of newly issued Shares shares of Company Common Stock (the “Top-Up Shares”) equal to the lowest number of Shares shares of Company Common Stock that, when added to the number of Shares directly or indirectly shares of Company Common Stock owned by Parent or Sub and its Subsidiaries at the time of exercise of the Top-Up Option, shall constitute one share more than ninety percent (90%) of the Shares shares of Company Common Stock outstanding immediately after the issuance of the Top-Up Shares (determined on a fully diluted basisthe “Short Form Threshold”); provided, however, that (i) the Top-Up Option shall will not be exercisable for a number unless, immediately after such exercise and the issuance of Top-Up Shares in excess of pursuant thereto, the Shares authorized and unissued at Short Form Threshold would be reached (after giving effect to the time of exercise issuance of the Top-Up Option and (ii) the Top-Up Option may not be exercised unless, following the Acceptance Time or after a subsequent offering period, eighty percent (80%) or more of the Shares shall be directly or indirectly owned by Parent or SubShares). The Top-Up Option shall be exercisable only once once, in whole but not in part, at any time following the Acceptance Time Offer Closing and prior to the earlier earliest to occur of (A) the close of business on the fifth (5th) Business Day following the Offer Closing, (B) the Effective Time and (BC) the termination of this Agreement in accordance with its terms.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cole Credit Property Trust Inc), Agreement and Plan of Merger (American Realty Capital Properties, Inc.)
Top-Up Option. (a) The Company hereby grants to Sub an irrevocable option (the “Top-Up Option”), exercisable exercisable, in whole and not in part, only on the terms and subject to the conditions set forth in this AgreementSection 1.10, to purchase at a price per share equal to the Offer Price paid in the Offer that number of newly issued Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares directly or indirectly owned by Parent or Sub at the time of exercise of the Top-Up Option, shall constitute one share more than ninety percent (90%) of the Shares outstanding immediately after the issuance of the Top-Up Shares (determined on a fully diluted basis); provided, however, that (i) the Top-Up Option shall not be exercisable for a number of Shares in excess of the aggregate number of Shares held as treasury shares by the Company and the number of Shares that the Company is authorized to issue under its certificate of incorporation but which (i) are not issued and unissued at the time of exercise of the Top-Up Option outstanding and (ii) are not reserved for issuance under the Top-Up Option may not be exercised unless, following the Acceptance Time Company Stock Plans or after a subsequent offering period, eighty percent (80%) or more of the Shares shall be directly or indirectly owned by Parent or Subto otherwise satisfy outstanding rights to acquire Shares. The Top-Top Up Option shall be exercisable only once at any time following the Acceptance Time and prior to the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement in accordance with its terms. Sub may assign the Top-Up Option and its rights and obligations pursuant to this Section 1.10, in its sole discretion, to Parent or any of Parent’s Subsidiaries.
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