Common use of Top-Up Option Clause in Contracts

Top-Up Option. (a) The Company hereby grants to Purchaser an irrevocable option (the "Top-Up Option") to purchase that number of shares of Common 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 Stock owned by Purchaser at the time of such exercise, shall constitute one share more than 90% of the shares of Common Stock then outstanding (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Consideration; provided, -------- however, that the Top-Up Option shall not be exercisable unless immediately ------- after such exercise Purchaser would own more than 90% of the shares of Common Stock then outstanding. (b) Purchaser may exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence of a Top-Up Exercise Event (as defined below) and prior to the occurrence of a Top-Up Termination Event (as defined below). (c) For purposes of this Agreement, a "Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to the Offer of shares of Common Stock constituting less than 90% of the shares of Common Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (i) the Effective Time and (ii) the termination of this Agreement pursuant to its terms.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the "“Top-Up Option"”) to purchase that number of shares of Common Stock Shares (the ------------- "“Top-Up Option Shares"”) equal to the lowest number of shares of Common Stock -------------------- Shares that, when added to the number of shares of Common Stock Shares owned by the Purchaser at the time of such exercise, shall constitute one share (1) Share more than ninety percent (90% %) of the shares of Common Stock Shares then outstanding (assuming the issuance of the outstanding, on a fully diluted basis, at a price per Top-Up Option Shares) at a price per share Share equal to the Offer Consideration, payable (at the Purchaser’s option) in shares of Purchaser Common Stock or cash in an amount equal to the value of the Offer Consideration; provided, -------- however, that the Top-Up Option shall not be exercisable exercisable, unless immediately ------- after such exercise the Purchaser would own more than ninety percent (90% %) of the shares of Common Stock Shares then outstanding, on a fully diluted basis; provided, further, that the Top-Up Option shall not be exercisable to the extent doing so would cause the merger not to qualify as a reorganization within the meaning of Section 368(a) of the Code. (b) The Purchaser may exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence of a Top-Up Exercise Event (as defined below) and prior to the occurrence of a Top-Up Termination Event (as defined below). (c) Effective Time. For purposes of this Agreement, a "“Top-Up Exercise Event" --------------------- ” shall occur upon Purchaser's acceptance if the Purchaser shall have accepted at least a majority of the Shares then outstanding, on a fully diluted basis, for payment exchange pursuant to the Offer (including, without limitation, any subsequent offering that the Purchaser may elect to extend pursuant to the terms and conditions of shares this Agreement) but constituting, together with the number of Common Stock constituting Shares owned by the Purchaser at the time of such acceptance, less than ninety percent (90% %) of the shares of Common Stock Shares then outstanding. Each of the following shall be , on a "Top-Up Termination Event": ------------------------ (i) the Effective Time and (ii) the termination of this Agreement pursuant to its termsfully diluted basis.

Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the "“Top-Up Option"”) to purchase that number of shares of Common Stock newly issued Shares (the ------------- "“Top-Up Option Shares"”) equal to the lowest number of shares of Common Stock -------------------- Shares that, when added to the number of shares of Common Stock Shares owned by the Parent and the Purchaser at immediately prior to the time of such exerciseexercise of the Top-Up Option, shall constitute one share Share more than 90% of the shares of Common Stock Shares then outstanding (assuming the issuance of the Top-Up Option Shares) at a price per share Share equal to the Share Offer ConsiderationPrice; provided, -------- however, that the Top-Up Option shall not be exercisable unless immediately ------- after such exercise the Purchaser would own more than 90% of the shares of Common Stock Shares then outstanding; 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 authorized but unissued Shares (giving effect to such Shares reserved for issuance pursuant to outstanding Options and Warrants as though such Shares were outstanding.) (b) The Purchaser may exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence of a Top-Up Exercise Event (as defined below) and prior to the earlier to occur of (i) the Effective Time, (ii) the date that is ten business days after the occurrence of a Top-Up Termination Event (as defined below). (c) For purposes of this Agreement, a "Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to the Offer of shares of Common Stock constituting less than 90% of the shares of Common Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (i) the Effective Time , and (iiiii) the termination of this Agreement pursuant to its terms. For purposes of this Agreement a “Top-Up Exercise Event” shall occur only upon Purchaser’s acceptance of Shares for payment pursuant to the Offer constituting at least 85% but less than 90% of the Shares then outstanding.

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser an irrevocable option (the "“Top-Up Option") ”), exercisable in Purchaser’s discretion, but only after the acceptance by Purchaser of, and payment for, Shares tendered in the Offer, to purchase (for cash or a note payable) that number (but not less than that number) of shares of Common Stock Shares (the ------------- "“Top-Up Option Shares"”) as is equal to the lowest number of shares of Common Stock -------------------- Shares that, when added to the number of shares of Common Stock Shares owned by GSK, Parent or Purchaser at the time of such exercise, shall constitute one share more than ninety percent (90% %) of the shares of Common Stock total Shares then outstanding (assuming the issuance of the Top-Up Option Shares) at a price per share Share equal to the Offer ConsiderationPrice; provided, -------- however, that (i) the Top-Up Option shall be exercisable only once, at such time as GSK, Parent and Purchaser, directly or indirectly, own at least eighty-five percent (85%) of the total Shares then outstanding, and only on or prior to the tenth (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 (including as authorized and unissued Shares, for purposes of this Section 1.5, any Shares held in the treasury of the Company), and (iii) the Top-Up Option may not be exercised if any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Entity shall 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 Shares in respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable. Purchaser shall, concurrently with the exercise of the Top-Up Option, 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 DGCL as contemplated by Section 2.7. (b) Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws. (c) Parent and Purchaser understand that the Shares that Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Purchaser represent and warrant to the Company that Purchaser is, and will be upon exercise of the Top-Up Option, an “accredited investor” (as defined in Rule 501 of Regulation D promulgated under the Securities Act). Purchaser agrees that the Top-Up Option shall not be exercisable unless immediately ------- after such exercise Purchaser would own more than 90% of the shares of Common Stock then outstanding. (b) Purchaser may exercise and the Top-Up Option, Shares to be acquired upon exercise thereof are being and will be acquired for the purpose of investment and not with a view to or for resale in whole but not in part, at connection with any one time after distribution thereof within the occurrence of a Top-Up Exercise Event (as defined below) and prior to the occurrence of a Top-Up Termination Event (as defined below). (c) For purposes of this Agreement, a "Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to the Offer of shares of Common Stock constituting less than 90% meaning of the shares of Common Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (i) the Effective Time and (ii) the termination of this Agreement pursuant to its termsSecurities Act.

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser Newco an irrevocable option (the "“Top-Up Option") ”), exercisable only after the acceptance by Newco of, and payment for, Shares tendered in the Offer, to purchase that number (but not less than that number) of shares of Common Stock Shares (the ------------- "“Top-Up Option Shares"”) as is equal to the lowest number of shares of Common Stock -------------------- Shares that, when added to the number of shares of Common Stock Shares owned by Purchaser Parent, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a whole, at the time of such exercise, shall constitute one share Share more than 90% of the shares of Common Stock total Shares then outstanding (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer ConsiderationPer Share Amount; provided, -------- however, that (i) in no event shall the Top-Up Option be exercisable (x) for a number of Shares in excess of the Company’s then authorized and unissued Shares (including as authorized and unissued Shares, for purposes of this Section 1.4, any Shares held in the treasury of the Company), or (y) unless, following the time of acceptance by Newco of Shares tendered in the Offer or after a subsequent offering period, 85% or more of the Shares then outstanding shall be directly or indirectly owned by Parent or Newco, (ii) Newco shall, concurrently with the exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Newco shall (and Parent shall cause Newco to) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by this Agreement, and (iii) the Top-Up Option may not be exercised if any provision of applicable law or any 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, 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 Shares in respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable. (b) Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws. (c) Parent and Newco understand that the Shares that Newco may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Newco represent and warrant to the Company that Newco is, and will be upon exercise of the Top-Up Option, an “accredited investor” (as defined in Rule 501 of Regulation D promulgated under the Securities Act). Newco agrees that the Top-Up Option shall not be exercisable unless immediately ------- after such exercise Purchaser would own more than 90% of the shares of Common Stock then outstanding. (b) Purchaser may exercise and the Top-Up Option, Shares to be acquired upon exercise thereof are being and will be acquired for the purpose of investment and not with a view to or for resale in whole but not in part, at connection with any one time after distribution thereof within the occurrence of a Top-Up Exercise Event (as defined below) and prior to the occurrence of a Top-Up Termination Event (as defined below). (c) For purposes of this Agreement, a "Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to the Offer of shares of Common Stock constituting less than 90% meaning of the shares of Common Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (i) the Effective Time and (ii) the termination of this Agreement pursuant to its termsSecurities Act.

Top-Up Option. (a) The Company hereby grants to Purchaser an irrevocable option option, for so long as this Agreement has not been terminated pursuant to the provisions hereof (the "“Top-Up Option") ”), to purchase that number of shares of Common 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 Stock owned by Parent, Purchaser and/or any other Subsidiary of Parent at the time of such exercise, shall constitute one (1) share more than 90% of the shares of Common Stock then outstanding (assuming the issuance of the Top-Up Option Shares) outstanding, on a fully diluted basis, at a price per share payable in cash equal to the Offer ConsiderationPrice; provided, -------- however, that the Top-Up Option shall not be exercisable exercisable, unless immediately ------- after such exercise the Purchaser would own more than ninety percent (90% %) of the shares of Common Stock then outstanding. (b) Subject to no statute, rule or regulation having been enacted or promulgated by any Governmental Entity which prohibits the consummation of the Merger and there being no order or injunction of a court of competent jurisdiction in effect preventing consummation of the Top-Up Option or the Merger, the Purchaser may exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence of a Top-Up Exercise Event (as defined below) and prior to the earlier to occur of (x) the Effective Time and (y) the date which is fifteen (15) business days after the occurrence of a Top-Up Termination Event (as defined below). (c) Exercise Event. For purposes of this Agreement, a "“Top-Up Exercise Event" --------------------- ” shall occur upon Purchaser's acceptance if (i) Purchaser shall have accepted Shares for payment pursuant to the Offer of shares of Common Stock constituting less than 90% of the shares of Common Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (i) the Effective Time and (ii) the termination issuance of this Agreement Shares pursuant to its termsthe Top-Up Option would not require shareholder approval under NYSE Rule 312.03.

Top-Up Option. (a) The Company hereby grants to Purchaser Merger Sub an irrevocable option (the "“Top-Up Option") ”), exercisable upon the terms and conditions of this Section 1.4, to purchase that from the Company a number of shares of Common Stock newly-issued Shares (the ------------- "“Top-Up Option Shares"”) equal to at least the lowest number of shares of Common Stock -------------------- Shares that, when added to the number of shares of Common Stock Shares owned directly or indirectly by Purchaser Parent and Merger Sub at the time of such exercise, shall constitute one share (1) Share more than 90% the number of Shares necessary for Merger Sub to be merged with and into the Company pursuant to Section 253 of the shares of Common Stock then outstanding DGCL (assuming after giving effect to the issuance of Shares pursuant to the exercise of the Top-Up Option). (b) The Top-Up Option Shares) shall only be exercisable once, in whole and not in part, at a price per share equal any time at or after the later of the Acceptance Time and the date of expiration of any “subsequent offering period” and prior to the Offer ConsiderationEffective Time; provided, -------- however, that that, notwithstanding anything in this Agreement to the contrary, the Top-Up Option shall not be exercisable unless immediately ------- after such exercise Purchaser would own more than 90% and shall terminate (x) at the later of the shares Acceptance Time and the date of Common Stock then outstandingexpiration of any “subsequent offering period” if the minimum number of Top-Up Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued and unreserved Shares (including as authorized and unissued Shares, for purposes of this Section 1.4, any Shares held in the treasury of the Company), (y) if any judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Shares or (z) upon the termination of the Agreement in accordance with its terms. Subject to Section 1.4(d), the aggregate amount payable to the Company for the Top-Up Shares shall be equal to the product of the number of Top-Up Shares and the Offer Price (the “Top-Up Consideration”). (bc) Purchaser The Top-Up Consideration shall consist of (i) an amount equal to the par value of the Top-Up Shares, to be paid in cash, and (ii) an amount equal to the balance of the Top-Up Consideration, which may be paid in the sole discretion of Parent and Merger Sub (x) in cash or (y) by issuance by Merger Sub (provided that if Merger Sub is not the holder of the Tendered Shares, then by issuance by Parent) of an unsecured, non-negotiable, non-transferable promissory note (which shall be treated as payment to the extent of the principal amount thereof), or any combination of the foregoing. Any such promissory note (A) shall accrue simple interest at the rate per annum of 2.0%, (B) shall mature on the first anniversary of the date of execution and delivery of such promissory note, (C) shall be fully recourse to Merger Sub, (D) may be prepaid at any time and from time to time, without premium or penalty, (E) shall provide that the unpaid principal amount and accrued interest under the promissory note shall immediately become due and payable in the event that (1) Merger Sub fails to timely make any payment on the promissory note as provided therein and such failure continues for a period of thirty (30) days or (2) Merger Sub files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors, and (F) shall have no other material terms. The Company Board has determined that the Top-Up Consideration is adequate in accordance with the DGCL and otherwise taken all steps necessary such that upon issuance and delivery in accordance with this Section 1.4 the Top-Up Option Shares shall be validly issued, fully paid and non-assessable. (d) In the event Merger Sub wishes to exercise the Top-Up Option, in whole but not in part, at any one time after Merger Sub shall give the occurrence of a Company written notice (the “Top-Up Exercise Event Notice”), and shall set forth in such notice (as defined belowi) the number of Shares that will be owned, directly or indirectly, by Parent and prior to Merger Sub immediately preceding the occurrence purchase of a the Top-Up Termination Event Shares, (ii) the place and time for the closing of the purchase of the Top-Up Shares, and (iii) the manner in which Merger Sub intends to pay the applicable exercise price; provided, however, that Merger Sub shall cause the closing of the Top-Up Option to occur on the same date and at the same place as defined belowthe Closing and that such closing shall occur on the date specified in the notice, which date shall be no later than the earlier of (x) two (2) Business Days after delivery of such notice and (y) the Outside Date then in effect. The Company shall, promptly following receipt of such notice, deliver written notice to Parent and Merger Sub certifying the number of Shares then outstanding and specifying the number of Top-Up Shares to be issued and the Top-Up Consideration due in exchange therefor, calculated in accordance with Section 1.4(b). ; provided, however, that in no event shall the Company be required to issue any Top-Up Shares if the number of Shares that, when added to the number of Shares owned directly or indirectly by Parent and Merger Sub at the time of such exercise, constitutes one (c1) For Share more than the number of Shares necessary for Merger Sub to be merged with and into the Company pursuant to Section 253 of the DGCL (after giving effect to the issuance of such Shares) exceeds the number of authorized but unissued and unreserved Shares (including as authorized and unissued Shares, for purposes of this AgreementSection 1.4, any Shares held in the treasury of the Company). At the closing of the purchase of the Top-Up Shares, Parent or Merger Sub shall cause to be delivered to the Company the Top-Up Consideration, and the Company shall cause to be issued to Parent or Merger Sub a "certificate representing the Top-Up Shares issued to Merger Sub as of the closing of the Top-Up Option. Upon delivery by Merger Sub to the Company of the Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to Notice and the Offer of shares of Common Stock constituting less than 90% of the shares of Common Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (i) Consideration, Merger Sub shall, to the Effective Time and (ii) extent permitted by Law, be deemed to be the termination holder of this Agreement pursuant record of the Top-Up Shares issuable upon exercise, notwithstanding, that certificates representing such Top-Up Shares shall not then be actually delivered to its termsMerger Sub.

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser an irrevocable option (the "“Top-Up Option") ”), exercisable in Purchaser’s discretion, but only after the acceptance by Purchaser of, and payment for, Shares tendered in the Offer, to purchase (for cash or a note payable) that number (but not less than that number) of shares of Common Stock Shares (the ------------- "“Top-Up Option Shares"”) equal to the lesser of (i) the lowest number of shares of Common Stock -------------------- Shares that, when added to the number of shares of Common Stock Shares owned by Parent or Purchaser at the time of such exercise, shall will constitute one share more than ninety percent (90% %) of the shares of Common Stock total Shares then outstanding on a Fully-Diluted Basis (assuming the issuance of the Top-Up Option Shares) at a price per share Share equal to the Offer ConsiderationPrice and (ii) 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 (A) are not issued and outstanding, (B) are not reserved for issuance pursuant to the Company Stock Plans and (C) are issuable without the approval of the Company’s stockholders; provided, -------- however, that (1) the Top-Up Option will be exercisable only once and only on or prior to the fifth (5th) Business Day after the later of the Expiration Date or the expiration date of any subsequent offering period and (2) the Top-Up Option may not be exercised if any provision of applicable Law (including the Nasdaq rules) or any judgment, injunction, order or decree of any Governmental Entity prohibits, or requires 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 Shares in respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable. Purchaser will, concurrently with the exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (and Purchaser will, and Parent will cause Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 2.7. (b) The aggregate purchase price payable for the Shares purchased by Purchaser pursuant to the Top-Up Option shall be determined by multiplying the number of such Shares by the Offer Price. Such purchase price may be paid by Purchaser, at its election, either entirely in cash or by paying in cash an amount equal to not be exercisable unless immediately ------- after less than the aggregate par value of such exercise Purchaser would own more than 90% Shares and by executing and delivering to the Company a promissory note having a principal amount equal to the balance of such purchase price, or any combination of the shares foregoing. Any such promissory note, in the form attached as Annex IV, (i) shall bear interest at the rate of Common Stock then outstanding5% per annum, (ii) shall mature on the first anniversary of the date of execution and delivery of such promissory note, and (iii) shall be full recourse to Parent and Purchaser and may be prepaid in whole or in part without premium or penalty. (bc) In the event that Purchaser may wishes to exercise the Top-Up Option, in whole but not in part, at any one time after Parent or Purchaser shall deliver to the occurrence Company a notice setting forth: (i) the number of a Shares that Purchaser intends to purchase pursuant to the Top-Up Exercise Event Option; (ii) the manner in which Parent or Purchaser intends to pay the applicable exercise price; and (iii) the place and time at which the closing of the purchase of such Top-Up Shares by Purchaser is to take place. The Company shall, as soon as practicable following receipt of such notice, notify Parent and Purchaser of the number of Shares then outstanding, the number of Shares then outstanding on a Fully-Diluted Basis and the number of Top-Up Shares. At the closing of the purchase of such Top-Up Shares, Parent or Purchaser shall cause to be delivered to the Company the consideration required to be delivered in exchange therefor, and the Company shall cause to be issued to Purchaser a certificate representing such Top-Up Shares. Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws. (d) Parent and Purchaser understand that the Shares that Purchaser 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 Purchaser represent and warrant to the Company that Purchaser is, and will be upon exercise of the Top-Up Option, an “accredited investor” (as defined below) and prior to in Rule 501 of Regulation D promulgated under the occurrence of a Securities Act). Purchaser agrees that the Top-Up Termination Event (as defined below)Option and the Top-Up Shares to be acquired upon exercise thereof are being and will be acquired 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. (ce) For purposes of this Agreement, a "Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to The parties agree and acknowledge that any dilutive impact on the Offer of shares of Common Stock constituting less than 90% value of the shares of Common Stock then outstanding. Each as a result of the following shall be a "issuance of the Top-Up Termination Event": ------------------------ (i) Shares will not be taken into account in any determination of the Effective Time and (ii) the termination fair value of this Agreement any Dissenting Shares pursuant to its termsSection 262 of the DGCL as contemplated by Section 3.3.

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser Merger Sub an irrevocable option (the "“Top-Up Option") ”), exercisable only on or after the Appointment Time, to purchase that number of shares of Common Stock Company Shares (the ------------- "“Top-Up Option Shares"”) equal to the lowest number of shares of Common Stock -------------------- Company Shares that, when added to the number of shares of Common Stock Company Shares owned by Purchaser Merger Sub at the time of such exercise, shall constitute one share more than 90% of the shares of Common Stock Shares then outstanding (assuming the issuance of the Top-Up Option SharesShares and the exercise of all outstanding exercisable options to purchase Shares with an exercise price equal to or less than $6.00) at a price per share equal to the Offer ConsiderationPrice; provided, -------- however, that the Top-Up Option shall not be exercisable unless immediately ------- after such exercise Purchaser and the issuance of Company Shares pursuant thereto, Merger Sub would own more than 90% of the shares of Company Common Stock then outstanding; and provided further, however, that 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 Company Common Stock (giving effect to shares of Company Common Stock reserved or issuance under the Company Option Plans as though such shares were outstanding). (b) Purchaser Merger Sub may exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence of a Top-Up Exercise Event (as defined below) and prior to the occurrence earlier to occur of a Top-Up Termination Event (as defined below). (c) For purposes of this Agreement, a "Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to the Offer of shares of Common Stock constituting less than 90% of the shares of Common Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (i) the Effective Time and (ii) the termination of this Agreement pursuant to its terms. For purposes of this Agreement, a “Top-Up Exercise Event” shall occur only upon Merger Sub’s acceptance of Company Shares for payment pursuant to the Offer or acquisition of Company Shares pursuant to the Offer constituting at least 85% of the Company Shares then outstanding.

Top-Up Option. (a) The Pursuant to the Merger Agreement, the Company hereby grants has granted to Purchaser an irrevocable option (option, for so long as the "Top-Up Option") Merger Agreement has not been terminated, to purchase that number of shares of Common Stock (the ------------- "Top-Up Option Shares") Shares equal to the lowest number of shares of Common Stock -------------------- Shares that, when added to the number of shares of Common Stock Shares owned by Parent and Purchaser at the time of such exercise, shall constitute one share Share more than 90% of the shares of Common Stock then outstanding Shares (determined on a fully diluted basis and assuming the issuance of the Shares pursuant to the Top-Up Option (the “Top-Up Option Shares) ”), at a price per share equal to the Offer ConsiderationPrice paid in the Offer. The Top-Up Option shall become exercisable upon Purchaser’s acceptance for payment and payment for Shares pursuant to the Offer (the “Purchase Date”) if Parent and Purchaser do not then own 90% of the then outstanding Shares (determined on a fully diluted basis). The Top-Up Option shall be exercisable in whole and not in part and may be exercised only once and only during the ten Business Day period after the Purchase Date; provided, -------- however, that notwithstanding anything in the Merger Agreement to the contrary the Top-Up Option shall not be exercisable unless immediately ------- after such exercise and shall terminate on the date Purchaser would own more than 90% accepts for payment and pays for Shares pursuant to the Offer if (i) the issuance of the shares of Common Stock then outstanding. (b) Purchaser may exercise the Top-Up Option, in whole but not in part, at any one time after Option Shares would require stockholder approval under the occurrence of a Top-Up Exercise Event (as defined below) and prior to the occurrence of a Top-Up Termination Event (as defined below). (c) For purposes of this Agreement, a "Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to the Offer of shares of Common Stock constituting less than 90% rules of the shares of Common Nasdaq Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (i) the Effective Time and Market, or (ii) the termination number of this Agreement pursuant to its termsTop-Up Option Shares would exceed the number of authorized but unissued shares of Common Stock.

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 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, that number of shares of Common Stock (the ------------- "“50% Top-Up Option Shares"”) equal to the lesser of (x) the lowest number of shares of Common Stock -------------------- that, when added to the number of shares of Common Stock owned by Parent, Purchaser and their respective subsidiaries and affiliates at the time of such exercise, shall constitute one share ten thousand (10,000) shares more than 9050% of the shares of Common Stock then outstanding (assuming after giving effect to the issuance of the 50% Top-Up Option Shares) at a price per share and (y) an aggregate number of shares of Common Stock that is equal to 19.9% of the Offer Considerationshares of Common Stock issued and outstanding as of the date hereof; provided, -------- however, that the 50% Top-Up Option shall not be exercisable unless unless, immediately ------- after such exercise and the issuance of shares of Common Stock pursuant thereto, Purchaser would own more than 9050% of the Shares then outstanding (assuming the issuance of the 50% Top-Up Option Shares); and provided, further, that in no event shall the 50% Top-Up Option be exercisable for a number of shares of Common Stock then outstandingstock in excess of the Company’s total authorized and unissued shares of Common Stock. (bii) Provided that no applicable law, rule, regulation, order, injunction or other legal impediment shall prohibit the exercise of the 50% Top-Up Option or the issuance of the 50% Top-Up Option Shares pursuant thereto, or otherwise make such exercise or issuance illegal, Purchaser may exercise the 50% Top-Up Option, in whole but not in part, at any one time after the occurrence of a Top-Up Exercise Event (as defined below) Appointment Time and prior to the occurrence earlier to occur of a Top-Up Termination Event (as defined below). (c) For purposes of this Agreement, a "Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to the Offer of shares of Common Stock constituting less than 90% of the shares of Common Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (i) the Effective Time record date for the Special Meeting, and (ii) the termination of this Agreement pursuant to its termsSection 8.1. (iii) In the event Purchaser wishes to exercise the 50% Top-Up Option, Purchaser shall send to the Company a written notice (a “50% Top-Up Exercise Notice,” the date of which notice is referred to herein as the “50% Top-Up Notice Date”) specifying the denominations of the certificate or certificates evidencing the 50% Top-Up Option Shares which the Purchaser wishes to receive, and the place, time and date for the closing of the purchase and sale pursuant to the 50% Top-Up Option (the “50% Top-Up Closing”). The Company shall, promptly after receipt of the 50% Top-Up Exercise Notice, deliver a written notice to the Purchaser confirming the number of 50% Top-Up Option Shares and the aggregate purchase price therefore (the “50% Top-Up Notice Receipt”). At the 50% Top-Up Closing, Purchaser shall pay the Company the aggregate price required to be paid for the 50% Top-Up Option Shares by delivery of a Promissory Note in an aggregate principal amount equal to the aggregate purchase price specified in the 50% Top-Up Notice Receipt, and the Company shall cause to be issued to Purchaser a certificate or certificates representing the 50% Top-Up Option Shares. Such certificates may include any legends that are required by federal or state securities laws.

Top-Up Option. (a) The Subject to the terms and conditions herein, the Company hereby grants to Purchaser Parent an irrevocable option (the "“Top-Up Option"”) to purchase up to that number of shares of Company Common 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 Stock collectively owned by Purchaser at Parent, Acquisition and any of their respective affiliates immediately following consummation of the time of such exerciseOffer, shall constitute one share more than at least 90% of the shares of Common Stock then outstanding Fully Diluted Shares (assuming the issuance of the Top-Up Option Shares) ), at a purchase price per share Top-Up Option Share equal to the Offer Consideration; provided, -------- howeverpayable in shares of Parent Common Stock, that cash or a demand note in an amount equal to the Top-Up Option shall not be exercisable unless immediately ------- after such exercise Purchaser would own more than 90% value of the shares of Common Stock then outstandingOffer Consideration. (b) Purchaser may Parent may, at its election, exercise the Top-Up Option, whether in whole but not or in part, at any one time after the occurrence of a Top-Up Exercise Event (as defined below) and prior to the occurrence of a Top-Up Termination Event (as defined below). (c) . For the purposes of this Agreementhereof, a "“Top-Up Exercise Event" --------------------- ” shall occur upon Purchaser's Parent’s acceptance for payment pursuant to the Offer (including, without limitation, any subsequent offering that Parent may elect to extend pursuant to the terms and conditions of shares this Agreement) of Common Stock constituting Shares constituting, together with Shares owned directly or indirectly by any other affiliates of Parent, less than 90% of the shares of Common Stock then outstanding. Each of the following shall be a "TopFully-Up Termination Event": ------------------------ Diluted Shares, but only if (i) the Effective Time and (ii) issuance of the termination of this Agreement Top-Up Option Shares pursuant to its terms.thereto would not

Top-Up Option. (a) The In the event the Minimum Tender Condition is satisfied, the Company hereby grants to 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 at a price per share equal to the Offer Price paid in the Offer up to that number of shares of Common Stock newly issued, fully paid, and nonassessable Shares (the ------------- "Top-Up Option Shares") equal to the lowest number of shares of Common Stock -------------------- Shares that, when added to the number of shares of Common Stock Shares owned by Purchaser Parent and Merger Sub at the time of such exerciseexercise of the Top-Up Option, shall constitute one share more than 90% of the shares of Common Stock then Shares outstanding (assuming immediately after the issuance of the Top-Up Option Shares) at Shares on a price per share equal to fully diluted basis (which assumes conversion or exercise of all derivative securities regardless of the Offer Considerationconversion or exercise price, the vesting schedule, or other terms and conditions thereof); provided, -------- however, that that: (i) the Top-Up Option shall not be exercisable unless immediately ------- after such exercise Purchaser would own more than 90% for a number of Shares in excess of the shares Shares authorized and unissued at the time of Common Stock then outstanding. (b) Purchaser may exercise of the Top-Up Option; (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); and (iii) the issuance of the Top-Up Shares shall not require approval of the Company's shareholders under applicable Law (excluding the rules of NASDAQ). The Top-Up Option shall be exercisable only once, in whole but not in part, at any one time after following the occurrence of a Top-Up Exercise Event (as defined below) Offer Acceptance Time and prior to the occurrence of a Top-Up Termination Event earlier to occur of: (as defined below). (c) For purposes of this Agreement, a "Top-Up Exercise Event" --------------------- shall occur upon Purchaser's acceptance for payment pursuant to the Offer of shares of Common Stock constituting less than 90% of the shares of Common Stock then outstanding. Each of the following shall be a "Top-Up Termination Event": ------------------------ (iA) the Effective Time Time; and (iiB) the termination of this Agreement pursuant to in accordance with its terms.