Common use of Top-Up Option Clause in Contracts

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub an option (the “Top-Up Option”), exercisable only upon the terms and conditions set forth in this Section 2.4, to purchase that number of authorized and unissued Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares beneficially owned by Parent and/or Acquisition Sub at the time of such exercise, shall constitute 100 Company Shares more than 90% of the Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise and the issuance of Company Shares pursuant thereto, Acquisition Sub would own more than 90% of the Company Shares then outstanding (assuming the issuance of the Top-Up Option Shares); and provided further, that in no event shall the Top-Up Option be exercisable (A) for a number of Company Shares in excess of the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law or any applicable Order shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub an irrevocable option (the “"Top-Up Option”"), exercisable only upon on the terms and conditions set forth in this Section 2.41.03, to purchase that number of authorized and unissued Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares beneficially owned by Parent and/or Acquisition Sub at the time of such exercise, shall constitute 100 Company Shares more than 90% of the Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer PricePrice paid in the Offer up to that number of newly issued shares of Company Common Stock (the "Top-Up Shares") equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent at the time of exercise of the Top-Up Option, shall constitute one share more than ninety percent (90%) of the shares of Company Common Stock outstanding immediately after the issuance of the Top-Up Shares (determined on a fully diluted basis for all outstanding stock options, restricted stock units and any other rights to acquire Company Common Stock outstanding on the date of determination); provided, however, that (i) 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, Acquisition Sub would own more than 90% Common Stock in excess of the shares of Company Shares then Common Stock authorized and unissued at the time of exercise of the Top-Up Option (giving effect to the shares of Company Common Stock issuable pursuant to all then-outstanding stock options, restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding) and (assuming ii) the issuance of the Top-Up Shares shall not require approval of the Company's stockholders under applicable Law (including the rules of NASDAQ). The Top-Up Option Shares); shall be exercisable at any one time following the Offer Closing and provided further, that prior to the earlier to occur of (a) the Effective Time and (b) the termination of this Agreement in no event shall accordance with its terms. The obligation of the Company to issue and deliver the Top-Up Shares upon the exercise of the Top-Up Option be exercisable (A) for a number is subject only to the condition that no Legal Restraint that has the effect of Company Shares in excess of the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law or any applicable Order shall prohibit preventing the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option SharesShares in respect of such exercise shall be in effect.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub Purchaser an irrevocable option (the “"Top-Up Option”"), exercisable only upon the terms and subject to the conditions set forth in this Section 2.4, to purchase that purchase, at a price per share equal to the Offer Price, an aggregate number of authorized and unissued Company Shares shares of Common Stock (the “"Top-Up Option Shares”") equal to the lowest number of Company Shares that, when added to the number of Company Shares beneficially shares of Common Stock directly or indirectly owned by Parent and/or Acquisition Sub at the time of such exercise, shall constitute 100 Company Shares one (1) share more than 90% the number of shares sufficient to reach the Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof Short Form Threshold (assuming the issuance of the Top-Up Option Shares); provided that (i) at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise and the issuance of Company Top-Up Option Shares pursuant thereto, Acquisition Sub the Short Form Threshold would own more than 90% of the Company Shares then outstanding be reached (assuming the issuance of the Top-Up Option Shares); ) and provided further, that (ii) in no event shall the Top-Up Option be exercisable (A) for a number of Company Shares shares of Common Stock in excess of the Company’s then 's total authorized and unissued shares of Common Stock. Upon Parent's request, the Company Common Stock or (B) if any applicable Law or any applicable Order shall prohibit cause its transfer agent to certify in writing to Parent the number of Shares issued and outstanding as of immediately prior to the exercise of the Top-Up Option or and after giving effect to the delivery issuance of the Top-Up Option Shares. Purchaser shall pay the Company the aggregate price required to be paid for the Top-Up Option Shares in cash by wire transfer to a bank account designated by the Company.

Top-Up Option. (ai) The Company hereby irrevocably grants to Acquisition Sub Parent an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth in this Section 2.4herein, to purchase purchase, at a price per share equal to the Offer Price, that number of authorized and unissued Company Shares shares of Common Stock (the “Top-Up Option Shares”) equal to the lowest number of Company Shares shares of Common Stock that, when added to the number of Company Shares beneficially shares of Common Stock owned by Parent and/or Acquisition Sub and its subsidiaries and affiliates at the time of such exercise, shall constitute 100 Company Shares ten thousand (10,000) shares more than 90% of the Company Shares outstanding, assuming the issuance shares of all Company Shares that are issuable within ten Business Days Common Stock then outstanding (after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof (assuming 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 unless, (A) immediately prior to such exercise, Merger Sub and Parent collectively hold Company Shares in excess of 80% of the Company Shares then outstanding and (B) immediately after such exercise and the issuance of Company Shares shares of Common Stock pursuant thereto, Acquisition Sub the Short Form Threshold would own more than 90% of the Company Shares then outstanding be reached (assuming the issuance of the Top-Up Option Shares); and provided further, (y) that in no event shall the Top-Up Option be exercisable (A) for a number of Company Shares shares of Common stock in excess of the Company’s then total authorized and unissued shares of Company Common Stock or Stock; and (Bz) if any applicable Law or any applicable Order in no event shall prohibit the exercise of the Top-Up Option be exercisable for more than 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 (or such greater amount as may be issuable under Rule 4350(i) of the delivery Nasdaq Marketplace Rules without the approval of the Company’s stockholders). Neither Parent nor Merger Sub may transfer the Top-Up Option Sharesto any other Person, other than a wholly-owned direct or indirect subsidiary of the Parent, without the prior written consent of the Company.

Top-Up Option. (a) The a)The Company hereby irrevocably grants to Acquisition Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and conditions set forth in this Section 2.41.03, to purchase at a price per share equal to the Offer Price paid in the Offer up to that number of authorized and unissued 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 beneficially Common Stock owned by Parent and/or Acquisition Sub and its Subsidiaries at the time of such exerciseexercise of the Top-Up Option, shall constitute 100 Company Shares one share more than 90% of the shares of Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days Common Stock outstanding immediately after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof (assuming 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 Priceconversion or exercise price, the vesting schedule or other terms and conditions thereof); provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise and the issuance for a number of shares of Company Shares Common Stock in excess of (i) the number of shares of Company Common Stock authorized and unissued or held in the treasury of the Company (giving effect to the shares of Company Common Stock issuable pursuant theretoto all then-outstanding stock options, Acquisition Sub would own more than 90restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding) or (ii) 19.90% of the number of outstanding shares of Company Shares then outstanding (assuming Common Stock or voting power of the Company, in each case as of immediately prior to and after giving effect to the issuance of the Top-Up Shares. The Top-Up Option Shares); shall be exercisable at any one time following the Offer Closing and provided further, that prior to the earlier to occur of (a) the Effective Time and (b) the termination of this Agreement in no event shall accordance with its terms. The obligation of the Company to issue and deliver the Top-Up Shares upon the exercise of the Top-Up Option be exercisable (A) for a number of Company Shares in excess of is subject only to the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law or any applicable Order shall prohibit condition that no Restraint preventing the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option SharesShares in respect of such exercise shall be in effect.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and conditions set forth in this Section 2.42.3, to purchase at a price per share equal to the Offer Price that number of authorized newly issued, fully paid and unissued nonassessable 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 beneficially Common Stock directly or indirectly owned by Parent and/or and Acquisition Sub at the time of such exercise, shall constitute 100 Company Shares more than 90% of the Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase exercise of the Top-Up Option Shares upon the vestingOption, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless shall constitute one share more than ninety percent (90%) of the conversion or exercise price or other terms and conditions thereof (assuming shares of Company Common Stock outstanding on a “fully diluted basis” immediately after the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall may not be exercisable unless immediately after such exercise and exercised to the issuance extent that the number of Top-Up Option Shares exceeds that number of shares of Company Shares pursuant theretoCommon Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not reserved for issuance at the time of exercise of the Top-Up Option. The Top-Up Option shall be exercisable only once, Acquisition Sub would own more than 90% in whole but not in part. The obligation of the Company to issue and deliver the Top-Up Option Shares then outstanding (assuming upon the issuance exercise of the Top-Up Option Shares); and provided further, is subject to the condition that in no event shall the Top-Up Option be exercisable (A) for a number of Company Shares in excess of the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law shall be in effect that has the effect of enjoining or any applicable Order shall prohibit otherwise prohibiting the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and conditions set forth in this Section 2.41.03, to purchase at a price per share equal to the Offer Price that number of authorized newly issued, fully paid and unissued nonassessable 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 beneficially Common Stock directly or indirectly owned by Parent and/or Acquisition Parent, Holdings and Merger Sub at the time of such exercise, shall constitute 100 Company Shares more than 90% of the Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase exercise of the Top-Up Option Shares upon the vestingOption, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless shall constitute one share more than 90.0% of the conversion or exercise price or other terms and conditions thereof (assuming Fully Diluted Shares outstanding immediately after the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall may not be exercisable unless immediately after such exercise and exercised if the issuance number of Top-Up Shares exceeds the lesser of (i) that number of shares of Company Shares pursuant thereto, Acquisition Sub would own more than 90% Common Stock authorized and unissued (treating shares held in treasury as unissued) and not reserved for issuance at the time of the Company Shares then outstanding (assuming the issuance exercise of the Top-Up Option Sharesand (ii) that number of shares of Company Common Stock the issuance of which would require approval of the Company’s stockholders under applicable Law or the rules and regulations of The NASDAQ Global Select Market (“Nasdaq”); . The Top-Up Option shall be exercisable only once, in whole but not in part, at such time as Parent, Holdings and provided furtherMerger Sub, that in no event shall directly or indirectly, own at least 85.0% of the Fully Diluted Shares and following the expiration of the Offer and any subsequent offering period. The obligation of the Company to issue and deliver the Top-Up Shares upon the exercise of the Top-Up Option be exercisable (A) for a number is subject to the condition that no Legal Restraint that has the effect of Company Shares in excess of the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law or any applicable Order shall prohibit prohibiting the exercise of the Top-Up Option or preventing the issuance and delivery of the Top-Up Option SharesShares shall be in effect.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub Offeror an option (the “Top-Up Option”), exercisable only upon the terms and conditions set forth in this Section 2.41.04, to purchase up to that number of authorized and unissued shares of Company Shares Common Stock (the “Top-Up Option Shares”) equal to the lowest a number of shares of Company Shares Common Stock that, when added to the number of shares of Company Shares beneficially Common Stock directly or indirectly owned by Parent and/or Acquisition Sub or any of its Subsidiaries (including the Offeror and its Subsidiaries) at the time of such exercise, shall constitute 100 Company Shares more than 90% of the Company Shares outstanding, assuming the issuance of all Company Shares least amount required so that are issuable within ten Business Days after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities Parent and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise and the issuance of Company Shares pursuant thereto, Acquisition Sub would Offeror own more than 90% of the shares of Company Shares then Common Stock outstanding on a fully diluted basis (assuming the issuance as provided below) immediately after exercise of the Top-Up Option Shares)at a price per share as set forth below; and provided further, that in no event shall the Top-Up Option be exercisable (A) for a number of shares of Company Shares Common Stock in excess of the Company’s then authorized and but unissued shares of Company Common Stock Stock. For purposes of percentage of ownership calculations with respect to the Company under this Agreement, “fully diluted basis” assumes the conversion or (B) if any applicable Law or any applicable Order shall prohibit the exercise of all derivative securities or other rights to acquire Company Common Stock regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof, other than any shares of Company Common Stock subject to the Top-Up Option. The purchase price for the Top-Up Option Shares shall be equal to the Offer Price, which price shall be payable either, at Offeror’s election, (A) entirely in cash or (B) in cash in an amount equal to the delivery aggregate par value of the purchased Top-Up Option SharesShares and by the issuance of a full recourse note with a principal amount equal to the remainder of the exercise price.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub an irrevocable option (the “"Top-Up Option”"), exercisable only upon on the terms and conditions set forth in this Section 2.41.03, to purchase that number of authorized and unissued Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares beneficially owned by Parent and/or Acquisition Sub at the time of such exercise, shall constitute 100 Company Shares more than 90% of the Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer PricePrice paid in the Offer that number of newly issued shares of Company Common Stock (the "Top-Up Shares") equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent at the time of exercise of the Top-Up Option shall constitute one share more than 90% of the shares of Company Common Stock outstanding immediately after the issuance of the Top-Up Shares; provided, however, that 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, Acquisition Sub would own more than 90% Common Stock in excess of the shares of Company Shares then outstanding (assuming Common Stock authorized and unissued at the issuance time of exercise of the Top-Up Option Shares); and provided furtherOption. Provided that no applicable law, that in no event rule, regulation, order, injunction or other legal impediment shall the Top-Up Option be exercisable (A) for a number of Company Shares in excess of the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law or any applicable Order shall prohibit make the exercise of the Top-Up Option or the delivery issuance of the Top-Up Option Shares pursuant thereto illegal, the Top-Up Option shall be exercisable 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. Sub may only exercise the Top-Up Option on a single occasion after the expiration of the Offer and in any case only if, as a result of and immediately following the issuance of the Top-Up Shares, Parent will directly or indirectly hold one share more than 90% of the shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Shares).

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Parent and Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only after the Acceptance Time and only upon the terms and subject to the conditions set forth in this Section 2.4herein, to purchase that number of authorized and unissued from the Company Shares (the “Top-Up Option Shares”) equal to the lowest number (but not less than that number) of newly-issued and/or treasury shares of Company Shares Common Stock that, when added to the number of shares of Company Shares beneficially Common Stock owned by Parent and/or Acquisition or Merger Sub at the time of such exerciseexercise of the Top-Up Option, shall constitute 100 Company Shares constitutes one share more than 90% of the number of shares of Company Shares outstanding, assuming Common Stock outstanding immediately after the issuance of all shares of Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase of Common Stock subject to the Top-Up Option Shares or, as may be elected by Parent, the sum of (x) the number of shares of Company Common Stock outstanding immediately after the issuance of all shares of Company Common Stock subject to the Top-Up Option plus (y) all shares of Company Common Stock which the Company may be required to issue as of such date upon the vestingvesting (including vesting solely as a result of the consummation of the Offer), conversion or exercise of all outstanding Company Options, the Company Warrant and other derivative securities, including warrants, options, warrants, convertible or exchangeable securities and similar rightsor other rights to acquire Company Common Stock, regardless of the conversion or exercise price or other terms and conditions thereof (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price“Short Form Threshold”); provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise and (i) to the issuance extent the number of shares of Company Shares pursuant thereto, Acquisition Sub would own more than 90% of the Company Shares then outstanding (assuming the issuance Common Stock issuable upon exercise of the Top-Up Option Shares); and provided further, that in no event shall the Top-Up Option be exercisable (A) for a number of Company Shares in excess of would exceed the Company’s then authorized and unissued shares of Company Common Stock or (Bincluding as authorized and unissued shares of Company Common Stock, for purposes of this Section 2.2, any shares of Company Common Stock held in the treasury of the Company and the Company Subsidiaries), and (ii) if any applicable Law or any applicable Order shall prohibit immediately after such exercise and the exercise issuance of shares of Company Common Stock pursuant to the Top-Up Option or Option, the delivery of the Top-Up Option SharesShort Form Threshold would not be reached.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub an option (the “Top-Up Option”), exercisable only upon the terms and conditions set forth in this Section 2.4, to purchase that number of authorized and unissued Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares beneficially owned by Parent and/or Acquisition Sub at the time of such exercise, shall constitute 100 Company Shares more than 90% of the Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all then outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof on a fully diluted basis (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise and the issuance of Company Shares pursuant thereto, Parent, Acquisition Sub or any of Parent’s other wholly-owned Subsidiaries would own more than 90% of the Company Shares then outstanding (assuming the issuance of the Top-Up Option Shares); and provided further, that in no event shall the Top-Up Option be exercisable (A) for a number of Company Shares in excess of the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law (which for the avoidance of doubt shall not include the rules of Nasdaq) or any applicable Order shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub an option (the “Top-Up Option”), exercisable only upon the terms and conditions set forth in this Section 2.4, 2.4 to purchase that number of authorized and unissued Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares beneficially owned by Parent and/or Acquisition Sub at the time of such exercise, shall constitute 100 Company Shares more than 90% of the sum of: the total number of Company Shares outstanding, assuming outstanding immediately after the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase of the Top-Up Option Shares upon (the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof “Short-Form Threshold”) (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price; provided. Notwithstanding anything to the contrary set forth in this Agreement, however, that the Top-Up Option shall not be exercisable (i) if the Merger can be effected pursuant to Section 251(h) of the DGCL, (ii) unless immediately after such exercise and the issuance of Company Shares pursuant thereto, Acquisition Sub would own more than 90% of the Company Shares then outstanding Short-Form Threshold, (assuming the issuance of the Top-Up Option Shares); and provided further, that in no event shall the Top-Up Option be exercisable (Aiii) for a number of Company Shares in excess of the Company’s then authorized and unissued shares Company Shares (treating any Company Shares held in the treasury of the Company Common Stock as unissued) or (Biv) if any applicable Law or any applicable Order shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and conditions set forth in this Section 2.41.03, to purchase at a price per share equal to the Offer Price paid in the Offer that number of authorized and unissued 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 beneficially Common Stock directly or indirectly owned by Parent and/or Acquisition Sub at the time of such exercise, exercise of the Top-Up Option shall constitute 100 Company Shares one share more than 90% of the shares of Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days Common Stock outstanding immediately after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price; provided, however, that 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, Acquisition Sub would own more than 90% Common Stock in excess of the shares of Company Shares then outstanding (assuming Common Stock authorized and unissued at the issuance time of exercise of the Top-Up Option Shares); and provided furtherOption. Provided that no applicable law, that in no event rule, regulation, order, injunction or other legal impediment shall the Top-Up Option be exercisable (A) for a number of Company Shares in excess of the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law or any applicable Order shall prohibit make the exercise of the Top-Up Option or the delivery issuance of the Top-Up Option Shares pursuant thereto illegal, the Top-Up Option shall be exercisable 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. Sub may only exercise the Top-Up Option on a single occasion after the expiration of the Offer and in any case only if, as a result of and immediately following the issuance of the Top-Up Shares, Parent will directly or indirectly hold one share more than 90% of the shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Shares).

Top-Up Option. (a) The Immediately prior to the Offer Closing, Parent and the Company shall confer and mutually determine, in good faith, after consulting with their respective outside legal counsel, whether the Merger remains eligible to be effected pursuant to Section 251(h) of the DGCL. Unless Parent and the Company determine that the Merger is ineligible to be effected pursuant to Section 251(h) of the DGCL (the “251(h) Inapplicable Determination”), the Merger shall be effected in accordance with Section 251(h) of the DGCL. If prior to the Effective Time, Parent and the Company make a 251(h) Inapplicable Determination then, contingent and effective upon the occurrence of the 251(h) Inapplicable Determination and the Offer Closing, the Company hereby irrevocably grants to Acquisition Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and conditions set forth in this Section 2.41.3, to purchase at a price per share equal to the Offer Price that number of authorized and unissued 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 beneficially Common Stock directly or indirectly owned by Parent and/or and Acquisition Sub at the time of such exercisethe Top-Up Closing (after giving effect to the Offer Closing), shall constitute 100 one more share than ninety percent (90%) of the shares of Company Common Stock that are then issued and outstanding immediately after the issuance of the Top-Up Option Shares more than 90% on a fully diluted basis; provided, however, that (i) the Top-Up Option may not be exercised to the extent that the number of Top-Up Option Shares exceeds that number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not reserved for issuance at the time of exercise of the Top-Up Option and (ii) the issuance of the Top-Up Option Shares shall not require approval of the Company's stockholders under applicable Law (including the rules of the NASDAQ). The Top-Up Option shall be exercisable only once, in whole but not in part. The obligation of the Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase of to issue and deliver the Top-Up Option Shares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof (assuming the issuance of the Top-Up Option Shares) at a price per share equal is subject to the Offer Price; provided, however, condition that the Top-Up Option shall not be exercisable unless immediately after such exercise and the issuance of Company Shares pursuant thereto, Acquisition Sub would own more than 90% of the Company Shares then outstanding (assuming the issuance of the Top-Up Option Shares); and provided further, that in no event shall the Top-Up Option be exercisable (A) for a number of Company Shares in excess of the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law or any applicable Order shall prohibit be in effect that has the effect of enjoining or otherwise prohibiting the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares.

Top-Up Option. (a) The Company hereby irrevocably grants to Acquisition Sub an option (the “Top-Up Option”), exercisable only upon the terms and conditions set forth in this Section 2.4, to purchase that number of authorized and unissued Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares beneficially owned by Parent and/or Acquisition Sub at the time of such exercise, shall constitute 100 Company Shares more than 90% of the Company Shares outstanding, assuming the issuance of all Company Shares that are issuable within ten Business Days after the scheduled closing of the purchase of the Top-Up Option Shares upon the vesting, conversion or exercise of all then outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise and the issuance of Company Shares pursuant thereto, Acquisition Sub would own more than 90% of the Company Shares then outstanding (assuming the issuance of the Top-Up Option Shares); and provided further, that in no event shall the Top-Up Option be exercisable (A) for a number of Company Shares in excess of the Company’s then authorized and unissued shares of Company Common Stock or (B) if any applicable Law or any applicable Order shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares (excluding any listing requirements of Nasdaq). The Company shall use reasonable best efforts to cause its transfer agent to certify in writing to Acquisition Sub the number of Company Shares outstanding as of immediately prior to the exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Option Shares.