Common use of Top-Up Option Clause in Contracts

Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth herein, to purchase at a price per share equal to the Offer Price the number of Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares owned by Parent and its Subsidiaries at the time of such exercise, shall constitute one (1) share more than 90% of the Company Shares then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that (x) the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (y) in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued).

Top-Up Option. (a) The Company hereby grants to Merger Sub Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth herein, to purchase purchase, at a price per share equal to the Offer Price the Price, that number of Company Shares (the “Top-Up Option Shares”) equal to the lesser of (x) the lowest number of Company Shares that, when added to the number of Company Shares owned by Parent Parent, Purchaser and its their respective Subsidiaries and Affiliates at the time of such exercise, shall constitute one ten thousand (110,000) share shares more than 90% of the Company Shares then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the Top-Up Option Shares)) and (y) an aggregate number of Company Shares that is equal to 19.9% of the Company Shares issued and outstanding as of the date hereof; provided, however, that (x) the Top-Up Option shall not be exercisable unless, (i) immediately prior to such exercise, Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 80% of the Company Shares then outstanding and (ii) immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 90% of the Top-Up Option Shares)Company Shares then outstanding; and (y) provided, further, that in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued)Shares.

Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth hereinin this Section 1.10, to purchase at a price per share equal to the Offer Price greater of (i) the number last reported sale price of Company a Share on The Nasdaq Stock Market on the last trading day prior to the date on which the Top-Up Option is exercised or (ii) the Closing Amount, newly issued Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares so that, when added to the number of Company Shares owned by Parent and its Subsidiaries at Sub prior to the time of such exercise, shall constitute one (1) share more than 90% exercise of the Company Top-Up Option, Sub will own at least ninety percent (90%) of the Shares then outstanding (the “Short Form Threshold”) (immediately after giving effect to the issuance of the Top-Up Option SharesShares (not including in the Shares owned by Sub any Shares tendered pursuant to unfulfilled guaranteed delivery procedures); provided, however, that (xi) the Top-Up Option shall not be exercisable unless, immediately after such for a number of Shares in excess of the Shares authorized and unissued at the time of exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (yii) in no event shall the Top-Up Option may not be exercised unless, following the Acceptance Time or after a subsequent offering period, seventy percent (70%) or more of the Shares shall be owned by Sub. The Top-Up Option shall be exercisable for a number once at any time following the Acceptance Time and prior to the earlier to occur of Company Shares (A) the Effective Time and (B) the termination of this Agreement in excess of accordance with its terms. Sub may assign the Company’s total authorized Top-Up Option and unissued Company Shares (treating any Company Shares held its rights and obligations pursuant to this Section 1.10, in the treasury of the Company as unissued)its sole discretion, to Parent.

Top-Up Option. (a) The Company hereby grants to Parent and/or Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon subject to the terms and subject to the conditions set forth hereinhereof, to purchase at a price per share equal to the Offer Price the that number of shares of Company Shares Common Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Shares Common Stock that, when added to the number of shares of Company Shares Common Stock owned by Parent and its Subsidiaries Merger Sub at the time of such exercise, shall constitute one (1) share of Company Common Stock more than ninety percent (90% %) of the number of shares of Company Shares then outstanding (Common Stock entitled to vote on the “Short Form Threshold”) (Merger after giving effect to the issuance of the Top-Up Option Shares, calculated on a fully-diluted basis, or, at Parent’s election, on a primary basis, at an exercise price per Top-Up Share equal to the Offer Price (with, for this purpose only, the value of the fraction of the share of Parent Common Stock included in the Offer Price fixed at $10.25); provided, however, that (x) the Top-Up Option shall not may be exercisable unless, immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached exercised only if (assuming i) the issuance of the Top-Up Option SharesShares shall not require approval of the Company’s stockholders under applicable Law (including the rules of the NYSE); and , (yii) in no event shall 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 and (iii) the Top-Up Option is exercisable for a not more than the number of shares of Company Shares Common Stock in excess of the Company’s total shares of Company Common Stock authorized but unissued (and unissued Company Shares (treating any Company Shares held in not reserved for issuance) at the treasury time of exercise of the Company as unissued)Top-Up Option.

Top-Up Option. (a) The Company hereby grants to Merger Sub the Purchaser an irrevocable option (the “Top-Top Up Option”), exercisable only after acceptance by the Purchaser of, and payment for, Shares tendered in the Offer and thereafter upon the terms and subject to the conditions set forth hereinin this Section 2.4, to purchase at a price purchase, for consideration per share Top Up Option Share equal to the Offer Price the Price, up to that number of Company newly issued Shares (the “Top-Top Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares owned by Parent and its Subsidiaries at the time Purchaser immediately following the consummation of such exercisethe Offer, shall constitute one (1) share more than 90% of the Company Shares then outstanding (the “Short Form Threshold”) on a fully diluted basis (after giving effect to the issuance of the Top-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); provided, however, that (xi) that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); ) and (yii) in no event shall the Top-Top Up Option be exercisable for a to the extent the number of Company Shares in excess issuable upon the exercise of the Top Up Option would exceed the number of the Company’s total then authorized and unissued Company Shares (treating any Company including Shares held in the treasury of the Company as unissuedCompany).

Top-Up Option. (a) The Company hereby grants to Merger Sub Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth hereinin 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 the an aggregate number of newly and validly issued, fully paid and non-assessable shares of Company Shares Common Stock (the “Top-Up Option Shares”) equal up to the lowest that number of shares of Company Shares Common Stock that, when added to the number of shares of Company Shares Common Stock owned by Parent and its Subsidiaries Purchaser at the time of such exerciseexercise of the Top-Up Option, shall constitute one ten thousand (110,000) share shares more than 90% of the shares of Company Shares Common Stock then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”); provided, however, that (x) the Top-Up Option shall may not be exercisable unless, immediately after such exercise and exercised (i) to purchase an amount of Top-Up Option Shares in excess of the issuance number of shares of Company Shares pursuant thereto, Common Stock authorized and unissued (treating shares owned by the Short Form Threshold would be reached (assuming Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the issuance time of exercise of the Top-Up Option Shares); Option, (ii) if prohibited by applicable Law, and (yiii) in no event unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option be exercisable for a number of Company Shares as set forth in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissuedSection 1.4(b).

Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth hereinin this Agreement, to purchase at a price per share equal to the Offer Price paid in the Offer that number of Company newly issued Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares directly or indirectly owned by Parent and its Subsidiaries or Sub at the time of such exerciseexercise of the Top-Up Option, shall constitute one (1) share more than ninety percent (90% %) of the Company Shares then outstanding immediately after the issuance of the Top-Up Shares (determined on a fully diluted basis); provided, however, that (i) the “Short Form Threshold”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, (x) 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 and (y) after the giving effect to the exercise of the Top-Up Option, Parent, Sub and any wholly owned subsidiary of Parent or Sub 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 Option Sharesbut excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee). 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; provided, however, that (x) so long as the Minimum Condition is satisfied upon the Acceptance Time, Parent and Sub may exercise the Top-Up Option shall not be exercisable unlessOption, immediately after such exercise on a second occasion, on the same terms and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (y) conditions set forth in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held this Section 1.10 in the treasury event the Shares that were subject to guarantees of delivery were not properly tendered in the Company as unissued)Offer.

Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth hereinin this Section 1.4, to purchase at a price per share equal to the Offer Price paid in the Offer up to that number of Company newly issued Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares owned by Parent and its Subsidiaries at the time of such exerciseexercise of the Top-Up Option, shall constitute one (1) share more than ninety percent (90% %) of the Company Shares then outstanding (the “Short Form Threshold”) (immediately after giving effect to the issuance of the Top-Up Option SharesShares 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 (xi) the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (y) in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s total Shares authorized and unissued Company Shares (treating any Company Shares 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 Company RSUs and any other rights to acquire Company Common Stock as unissued)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 Order. The Top-Up Option shall be exercisable only once, in whole but not in part, at any time following the Offer 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 irrevocably grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon after Merger Sub’s acceptance for payment of Shares validly tendered and not withdrawn as of the expiration date of the Offer and payment for such Shares in accordance with the terms of the Offer by depositing the aggregate purchase price therefor with the Depositary (the “Depositary”) for the Offer (the date and subject time of such deposit with the Depositary being referred to as the “Purchase Time”), and prior to the conditions set forth hereinEffective Time, to purchase at a price per share equal to from the Offer Price the Company that number of Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares owned directly or indirectly by Parent and its Subsidiaries at or Merger Sub immediately following the time consummation of such exercisethe Offer, shall constitute one (1) share more than 90% of the Company total Shares then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the Top-Up Option Shares)) at a price per Share equal to the Offer Price; provided, however, that (x) the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (y) in no event shall the Top-Up Option be exercisable to the extent it would be exercisable for a number of Company Shares in excess of the Company’s total then authorized and unissued Company Shares shares of Common Stock (treating including as authorized and unissued shares of Common Stock, for purposes of this Section 1A.5, any Company Shares held in the treasury of the Company as unissuedCompany).

Top-Up Option. (a) The Company hereby grants to Merger Sub Parent an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth hereinin this Agreement, to purchase from the Company, at a price per share equal to the Offer Price paid in the Offer, up to that number of newly issued shares of Company Shares Common Stock (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of shares of Company Shares Common Stock owned by Parent and (or any of its Subsidiaries Subsidiaries) at the time of such exerciseexercise of the Top-Up Option, shall would constitute one (1) share more than ninety percent (90% %) of the shares of Company Shares Common Stock then outstanding on a fully-diluted basis (“on a fully-diluted basis” meaning the “Short Form Threshold”number of shares of Company Common Stock then issued and outstanding, plus all shares of Company Common Stock that the Company may be required to issue as of such date pursuant to options (whether or not then vested or exercisable), rights, convertible or exchangeable securities (only to the extent then convertible or exchangeable into shares of Company Common Stock) (or similar obligations then outstanding, and after giving effect to the issuance of the Top-Up Option Shares, but excluding from Parent’s (and any of its Subsidiaries’) ownership, but not from the outstanding shares of Company Common Stock, shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short Form Threshold”); provided, however, that (x) . Parent may assign the Top-Up Option shall not be exercisable unlessand its respective rights and obligations pursuant to this Section 1.3, immediately after such exercise and the issuance in its sole discretion, to any of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (y) in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued)its Subsidiaries.

Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth hereinin this Section 1.10, to purchase at a price per share equal to the Offer Price paid in the Offer up to that number of newly issued shares of Company Shares Common Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Shares Common Stock that, when added to the number of shares of Company Shares Common Stock directly or indirectly owned by the Parent and its Subsidiaries or the Sub at the time of such exerciseexercise of the Top-Up Option, shall constitute one (1) share more than 90% of the shares of Company Shares then Common Stock outstanding (the “Short Form Threshold”) (immediately after giving effect to the issuance of the Top-Up Option SharesShares (determined 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 (xi) the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance for a number of shares of Company Shares pursuant thereto, Common Stock in excess of the Short Form Threshold would be reached (assuming shares of Company Common Stock authorized and unissued at the issuance time of exercise of the Top-Up Option Shares); and (yii) in no event shall the Top-Up Option may not be exercised unless, following the time of acceptance by the Sub of shares of Company Common Stock tendered in the Offer or after a subsequent offering period, eighty-five percent (85%) or more of the shares of Company Common Stock shall be directly or indirectly owned by the Parent or the Sub. The Top-Up Option shall be exercisable for a number once at any time following the Acceptance Date and prior to the earlier to occur of Company Shares (a) the Effective Time and (b) the termination of this Agreement in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued)accordance with its terms.

Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth herein, to purchase at a price per share equal to the Offer Price the that number of Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares owned by Parent and its Subsidiaries at the time of such exercise, shall constitute one (1) share more than 90% of the Company Shares then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that (x) that the Top-Up Option shall not be exercisable unlessunless the Minimum Condition has been satisfied and, immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (y) that in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued).

Top-Up Option. (aA) The Company hereby grants to Merger Sub Purchaser an irrevocable option (the “"Top-Up Option”"), exercisable only upon the terms and subject to the conditions set forth herein, to purchase purchase, at a price per share equal to the Offer Price the Price, that number of Company Shares (the “"Top-Up Option Shares”") equal to the lesser of (x) the lowest number of Company Shares that, when added to the number of Company Shares owned by Parent Parent, Purchaser and its their respective Subsidiaries and Affiliates at the time of such exercise, shall constitute one ten thousand (110,000) share shares more than 90% of the Company Shares then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the Top-Up Option Shares)) and (y) an aggregate number of Company Shares that is equal to 19.9% of the Company Shares issued and outstanding as of the date hereof; provided, however, that (x) the Top-Up Option shall not be exercisable unless, (i) immediately prior to such exercise, Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 80% of the Company Shares then outstanding and (ii) immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 90% of the Top-Up Option Shares)Company Shares then outstanding; and (y) provided, further, that in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s 's total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued)Shares.

Top-Up Option. (a) The Company hereby irrevocably grants to Merger Sub Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon after Purchaser’s acceptance for payment of Shares validly tendered and not withdrawn as of the expiration date of the Offer and payment for such Shares in accordance with the terms of the Offer by depositing the aggregate purchase price therefor with the Depositary (the “Depositary”) for the Offer (the date and subject time of such deposit with the Depositary being referred to as the “Purchase Time”), and prior to the conditions set forth hereinEffective Time, to purchase at a price per share equal to from the Offer Price the Company that number of Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares owned directly or indirectly by Parent and its Subsidiaries at or Purchaser immediately following the time consummation of such exercisethe Offer, shall constitute one (1) share more than 90% of the Company total Shares then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the Top-Up Option Shares)) at a price per Share equal to the Offer Price; provided, however, that (xi) the Top-Up Option shall not be exercisable unlessonly once, immediately after at such exercise time as Parent and the issuance of Company Shares pursuant theretoPurchaser, the Short Form Threshold would be reached (assuming the issuance directly or indirectly, own at least 80% of the Top-Up Option Shares); total number of Shares then outstanding and (yii) in no event shall the Top-Up Option be exercisable to the extent it would be exercisable for a number of Company Shares in excess of the Company’s total then authorized and unissued Company Shares shares of Common Stock (treating including as authorized and unissued shares of Common Stock, for purposes of this Section 1.5, any Company Shares held in the treasury of the Company as unissuedCompany).

Top-Up Option. (a) The Company hereby grants to Merger Sub 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 the an aggregate number of Company Shares (the “Top-Up Option Shares”) equal up to the lowest number of shares of Company Shares Common Stock that, when added to the number of shares of Company Shares Common Stock owned by Parent and its Subsidiaries or the Purchaser at the time of such exerciseexercise of the Top-Up Option, shall constitute constitutes one (1) share Share more than ninety percent (90% %) of the Company Shares then outstanding (the “Short Form Threshold”) on a fully diluted basis (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that (x) the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (y) provided, further, that in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s total authorized and unissued Shares. Upon Parent’s request, the Company shall cause its transfer agent to certify in writing to Parent the number of Shares (treating any Company Shares held in issued and outstanding as of immediately prior to the treasury exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Option Shares. The Purchaser may pay the Company as unissuedthe aggregate price required to be paid for the Top-Up Option Shares, at the option of Parent, either in cash or by delivery of a promissory note (the “Promissory Note”).

Top-Up Option. (a) The Company Seller hereby grants to Merger Sub Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth hereinin this Section 1.4, to purchase at a price per share equal to the Offer Price paid in the Offer up to that number of Company Shares newly issued shares of Seller Common Stock (the “Top-Up Option Shares”) equal to the lowest number of Company Shares shares of Seller Common Stock that, when added to the number of Company Shares shares of Seller Common Stock directly or indirectly owned by Parent and its Subsidiaries or Purchaser at the time of such exerciseexercise of the Top-Up Option, shall constitute one (1) share more than 90% of the Company Shares then shares of Seller Common Stock outstanding (the “Short Form Threshold”) (immediately after giving effect to the issuance of the Top-Up Option SharesShares (determined on a “fully diluted basis”); provided, however, that (xi) the Top-Up Option shall not be exercisable unless, immediately after such for a number of shares of Seller Common Stock in excess of the shares of Seller Common Stock authorized and unissued at the time of exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (yii) in no event shall the Top-Up Option may not be exercised unless, following the time of acceptance by Purchaser of shares of Seller Common Stock tendered in the Offer or after a subsequent offering period, eighty-five percent (85%) or more of the shares of Seller Common Stock shall be directly or indirectly owned by Parent or Purchaser. The Top-Up Option shall be exercisable for a number once at any time following the Acceptance Date and prior to the earlier to occur of Company Shares (a) the Effective Time and (b) the termination of this Agreement in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued)accordance with its terms.

Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth hereinin this Section 1.4, to purchase purchase, at a price per share Share equal to the Offer Price paid in the Offer, that number of Company newly issued Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the aggregate number of Company Shares owned by Parent Parent, Merger Sub and its any of their respective Subsidiaries or Affiliates at the time of such exerciseexercise of the Top-Up Option, shall constitute one (1) share Share more than 9080% of the Company Fully Diluted Shares then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the Top-Up Option Shares); provided, however, that (x) the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); and (y) in no event shall the Top-Up Option be exercisable for a to the extent the number of Company Shares in excess issuable upon exercise of the Top-Up Option would exceed the Company’s total authorized and unissued Company Shares (treating any Company and Shares held in the treasury at the time of exercise of the Top-Up Option (assuming all Fully Diluted Shares were issued and outstanding). 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 unissued)of immediately prior to the exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Shares. The Top-Up Option shall be exercisable only once, in whole but not in part, at any time following the Offer Closing and prior to the earlier to occur of (i) the Effective Time and (ii) the termination of this Agreement in accordance with its terms.

Top-Up Option. (a) The Company hereby grants to Merger Sub Purchaser an irrevocable option (the “90% Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth herein, to purchase purchase, at a price per share equal to the Offer Price the Price, payable in cash, that number of Company Shares shares of Common Stock (the “90% Top-Up Option Shares”) equal to the lesser of: (x) the lowest number of Company Shares shares of Common Stock that, when added to the number of Company Shares shares of Common Stock owned by Parent Parent, Purchaser and its Subsidiaries their respective subsidiaries at the time of such exercise, shall constitute one (1) share more than 90% of the Company Shares shares of Common Stock then outstanding (the “Short Form Threshold”) on a fully diluted basis (after giving effect to the issuance of the 90% Top-Up Option Shares); and (y) an aggregate number of shares of Common Stock in excess of the Company’s total authorized and unissued shares of Common Stock; provided, however, that (xi) the 90% Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Company Shares shares of Common Stock pursuant thereto, the Short Form Threshold would be reached (assuming the issuance of the 90% Top-Up Option Shares); ) and (yii) in no event shall if the number of 90% Top-Up Option be exercisable for a Shares issued equals or exceeds 20% of the number of Company the issued and outstanding Shares in excess as of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury date hereof all of the Company as unissuedconditions set forth in Article VII must be satisfied or waived (other than those that by their terms cannot be satisfied until the time of the Closing).

Top-Up Option. (ai) The In order to offset the dilutive impact of the issuance of Shares pursuant to the exercise, conversion or exchange of any Company Options, SARs, RSUs, Warrants, Equity Interests or other rights to acquire Shares following the Appointment Time, the Company hereby grants to Merger Sub Purchaser an irrevocable option (the “50% Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth herein, to purchase with a Promissory Note, at a price per share equal to the Offer Price the Price, that number of Company Shares shares of Common Stock (the “50% Top-Up Option Shares”) equal to the lesser of (x) the lowest number of Company Shares shares of Common Stock that, when added to the number of Company Shares shares of Common Stock owned by Parent Parent, Purchaser and its Subsidiaries their respective subsidiaries and affiliates at the time of such exercise, shall constitute one ten thousand (110,000) share shares more than 9050% of the Company Shares shares of Common Stock then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the 50% Top-Up Option Shares)) and (y) an aggregate number of shares of Common Stock that is equal to 19.9% of the shares of Common Stock issued and outstanding as of the date hereof; provided, however, that (x) the 50% Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of Company Shares shares of Common Stock pursuant thereto, Purchaser would own more than 50% of the Short Form Threshold would be reached Shares then outstanding (assuming the issuance of the 50% Top-Up Option Shares); and (y) provided, further, that in no event shall the 50% Top-Up Option be exercisable for a number of Company Shares shares of Common stock in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury shares of the Company as unissued)Common Stock.

Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth hereinin this Section 2.3, to purchase at a price per share equal to the Offer Price the that number of Company newly issued, fully paid and nonassessable Shares (the “Top-Up Option Shares”) equal to the lesser of (i) the lowest number of Company Shares that, when added to the number of Company Shares owned by Parent Parent, Merger Sub and its any of their respective Subsidiaries at the time of such exerciseexercise of the Top-Up Option, shall constitute one (1) share more than 90% of the outstanding Shares 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) and (ii) the aggregate number of authorized but unissued and unreserved Shares (including as authorized and unissued Shares, for purposes hereof, any Shares held in the treasury of the Company). 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 then issued and outstanding (as of immediately prior to the “Short Form Threshold”) (exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Option Shares); provided, however, that (x) the . The Top-Up Option shall not be exercisable unlessonly once, immediately after such exercise in whole but not in part, at any time following the Offer Closing and prior to the issuance earlier to occur of Company Shares pursuant thereto, (i) the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); Effective Time and (yii) the termination of this Agreement in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued)accordance with its terms.

Top-Up Option. (a) The Company hereby grants to Merger Sub Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth hereinin this Section 1.04, to purchase at a price per share equal to the Offer Price the up to that number of newly issued shares of Company Shares Common Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Shares Common Stock that, when added to the number of shares of Company Shares Common Stock directly or indirectly owned by Parent and its Subsidiaries or Purchaser at the time of such exerciseexercise of the Top-Up Option, shall constitute one (1) share more than 90% of the shares of Company Shares then Common Stock outstanding (the “Short Form Threshold”) (immediately after giving effect to the issuance of the Top-Up Option SharesShares (determined 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 (xi) the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance for a number of shares of Company Shares pursuant theretoCommon Stock that exceeds the number of authorized shares of Company Common Stock, less shares of Company Common Stock issued or reserved for issuance at the Short Form Threshold would be reached (assuming the issuance time of exercise of the Top-Up Option Shares); and (yii) in no event shall the Top-Up Option may not be exercised unless, following the acceptance by Purchaser of shares of Company Common Stock tendered in the Offer or after a subsequent offering period, eighty percent (80%) or more of the shares of Company Common Stock shall be directly or indirectly owned by Parent or Purchaser. The Top-Up Option shall be exercisable for a number of Company Shares in excess once at any time within six (6) Business Days following the later to occur of the Company’s total authorized Acceptance Date or the expiration of any subsequent offering period and unissued Company Shares prior to the earlier to occur of (treating any Company Shares held a) the Effective Time and (b) the termination of this Agreement in the treasury of the Company as unissued)accordance with its terms.

Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth hereinin this Section 1.3, to purchase at a price per share equal to the Offer Price the that number of Company newly issued, fully paid and nonassessable Shares (the “Top-Up Option Shares”) equal to the lesser of (i) the lowest number of Company Shares that, when added to the number of Company Shares owned by Parent Parent, Merger Sub and its any of their respective Subsidiaries at the time of such exerciseexercise of the Top-Up Option, shall constitute one (1) share more than 90% of the outstanding Shares 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) and (ii) the aggregate number of authorized but unissued and unreserved Shares (including as authorized and unissued Shares, for purposes hereof, any Shares held in the treasury of the Company). 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 then issued and outstanding (as of immediately prior to the “Short Form Threshold”) (exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Option Shares); provided, however, that (x) the . The Top-Up Option shall not be exercisable unlessonly once, immediately after such exercise in whole but not in part, at any time following the Offer Acceptance Time and prior to the issuance earlier to occur of Company Shares pursuant thereto, (i) the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares); Effective Time and (yii) the termination of this Agreement in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued)accordance with its terms.

Top-Up Option. (aA) The Company hereby grants to Merger Sub Purchaser an irrevocable option (the “Top-"Top- Up Option”"), exercisable only upon the terms and subject to the conditions set forth herein, to purchase purchase, at a price per share equal to the Offer Price the Price, that number of Company Shares (the “"Top-Up Option Shares”") equal to the lesser of (x) the lowest number of Company Shares that, when added to the number of Company Shares owned by Parent Parent, Purchaser and its their respective Subsidiaries and Affiliates at the time of such exercise, shall constitute one ten thousand (110,000) share shares more than 90% of the Company Shares then outstanding (the “Short Form Threshold”) (after giving effect to the issuance of the Top-Up Option Shares)) and (y) an aggregate number of Company Shares that is equal to 19.9% of the Company Shares issued and outstanding as of the date hereof; provided, however, that (x) the Top-Up Option shall not be exercisable unless, (i) immediately prior to such exercise, Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 80% of the Company Shares then outstanding and (ii) immediately after such exercise and the issuance of Company Shares pursuant thereto, the Short Form Threshold would be reached (assuming the issuance Parent, Purchaser and their respective Subsidiaries and Affiliates own more than 90% of the Top-Up Option Shares)Company Shares then outstanding; and (y) provided, further, that in no event shall the Top-Up Option be exercisable for a number of Company Shares in excess of the Company’s 's total authorized and unissued Company Shares (treating any Company Shares held in the treasury of the Company as unissued)Shares.