Common use of Top-Up Option Clause in Contracts

Top-Up Option. (a) The Company hereby irrevocably grants to Newco an 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 (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned by 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 more than 90% of the total Shares then outstanding (assuming the issuance of the Top-Up Shares) at a price per share equal to the Per 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.

Top-Up Option. (a) The Company hereby irrevocably grants to Newco Purchaser an option (the “Top-Up Option”), exercisable only after the acceptance by Newco Purchaser of, and payment for, Shares tendered in the Offer, to purchase that number (but not less than that number) of Shares (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned directly or indirectly by Parent, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a whole, Purchaser at the time of such exercise, shall constitute one Share share more than 90% of the total Shares then outstanding (assuming the issuance of the Top-Up Shares) at a price per share Share equal to the Per Share AmountOffer Price; provided, however, that (i) the Top-Up Option shall be exercisable only once, at such time as Parent and Purchaser, directly or indirectly, own at least 85% of the total number of Shares then outstanding and on or prior to the 20th 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 (x) for a number of Shares in excess of the Company’s then authorized and unissued Shares shares of Common Stock (including as authorized and unissued Sharesshares of Common Stock, for purposes of this Section 1.41.5, any Shares held in the treasury of the Company), or (yiii) 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 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, Newco shall Purchaser intends to (and Purchaser shall, and Parent shall cause Newco Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by this AgreementSection 2.7, and (iiiiv) the Top-Up Option may not be exercised if any provision of applicable law 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”) 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.

Top-Up Option. (a) The Company hereby irrevocably grants to Newco Purchaser an option (the “Top-Up Option”), exercisable only after the acceptance by Newco 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 (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned by Parent, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a whole, Purchaser at the time of such exercise, shall constitute one Share share more than ninety percent (90% %) of the total Shares then outstanding on a fully-diluted basis (assuming the issuance of the Top-Up Shares) at a price per share Share equal to the Per Share AmountOffer Price (which price shall be payable either (A) entirely in cash or (B) in cash in an amount equal to the aggregate par value of the purchased Top-Up Option Shares and by the issuance of a full recourse note with a principal amount equal to the remainder of the exercise price); provided, however, that (i) the Top-Up Option shall be exercisable only once, and only on or prior to the tenth (10th) Business Day (or such later date as shall be approved by the Continuing Directors) after the latest of the Expiration Date, the expiration date of any subsequent offering period and the receipt of all Required Merger Regulatory Approvals, (ii) 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 1.41.5, 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 (A) any provision of applicable law 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”) 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, or (B) after the issuance of Shares pursuant to the Top-Up Option, it will be insufficient to allow Purchaser to effect the Merger without a meeting of stockholders of the Company in accordance with Section 253 of the DGCL; provided, further, that the Top-Up Option shall terminate concurrently with the termination of this Agreement. Purchaser shall promptly exercise the Top-Up Option if the shares issuable upon exercise thereof would be sufficient to allow Purchaser to effect the Merger without a meeting of stockholders of the Company in accordance with Section 253 of the DGCL. 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.

Top-Up Option. (a) The Company hereby irrevocably grants to Newco Purchaser an option (the “Top-Up Option”), exercisable in Purchaser’s discretion, but only after the acceptance by Newco 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 (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned by ParentGSK, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a whole, Purchaser at the time of such exercise, shall constitute one Share share more than ninety percent (90% %) of the total Shares then outstanding (assuming the issuance of the Top-Up Shares) at a price per share Share equal to the Per Share AmountOffer Price; 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 (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 1.41.5, 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 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”) 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.

Top-Up Option. (a) The Company hereby irrevocably grants to Newco Purchaser an option (the “Top-Up Option”), exercisable exercisable, on one or more occasions, in Purchaser’s discretion, but only after the acceptance by Newco 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 (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned by ParentGSK, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a whole, Purchaser at the time of such exercise, shall constitute one Share more than 90% (i) if the Offer was amended to reflect the Revised Minimum Number, forty-nine and nine-tenths percent (49.9%) of the total Shares then outstanding (assuming the issuance of the Top-Up Shares) or (ii) in all other circumstances, one share more than ninety percent (90%) of the total Shares then outstanding (assuming the issuance of the Top-Up Shares), in each case at a price per share Share equal to the Per Share AmountOffer Price; provided, however, that (ix) 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 1.41.5, any Shares held in the treasury of the Company), or and (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 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”) 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 shareholders 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. Upon Purchaser’s request, the Company shall cause its transfer agent to certify in writing to Purchaser the number of Shares issued and outstanding immediately prior to the exercise of the Top-Up Option.

Top-Up Option. (a) The Subject to the number of Shares that have been accepted for payment pursuant to the Offer (after giving effect to any proper withdrawal of Shares prior to the Expiration Date but without giving effect to Shares issuable upon the exercise of the Top-Up Option), together with (x) the number of Shares, if any, then owned of record by Parent or Purchaser or with respect to which Parent or Purchaser otherwise has, directly or indirectly, sole voting power, and (y) the number of shares of Company Common Stock that are issuable upon exercise of Options, that are held in trust pursuant to the Company's Director Stock Unit Program or that constitute restricted shares, in each case whose holders have executed the Stockholders’ Agreement, representing at least eighty percent (80%) but less than ninety percent (90%) of all outstanding Shares (determined on a Fully Diluted Basis), the Company hereby irrevocably grants to Newco Purchaser an irrevocable option (the “Top-Up Option”), exercisable only after once upon the acceptance by Newco of, terms and payment for, Shares tendered in subject to the Offerother conditions set forth herein, to purchase that at the Offer Price an aggregate number (but not less than that number) of Shares (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned by Parent, Newco Purchaser and any subsidiaries or affiliates of Parent or Newco, taken as a whole, their Affiliates at the time of such exerciseexercise and the number of shares of Company Common Stock that are issuable upon exercise of Options, that are held in trust pursuant to the Company's Director Stock Unit Program or that constitute restricted shares, in each case whose holders have executed the Stockholders’ Agreement, shall constitute one Share more than ninety percent (90% %) of the total Shares then outstanding (assuming after giving effect to the issuance of the Top-Up Shares) at issued and outstanding, determined on a price per share equal to Fully Diluted Basis (the Per Share Amount“Short Form Threshold”); 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 number of authorized and but unissued Shares (including as authorized and unissued Shares, for purposes of this Section 1.4, any Shares held in immediately prior to 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 issuance of the Top-Up OptionShares; provided, give written notice to the Company further, 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 shall terminate upon the earlier of: (x) the fifth (5th) Business Day after the later of applicable law or any judgment, injunction, order or decree (1) the Expiration Date and (2) the expiration of any federal, state, provincial, local “subsequent offering period” as described in Section 1.1(f) above 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”y) shall prohibit, or require any action, consent, approval, authorization or permit of, action by, or filing the termination of this Agreement in accordance 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 applicableits terms.

Top-Up Option. (a) The Company Seller hereby irrevocably grants to Newco the Purchaser an irrevocable option (the “Top-Up Option”), exercisable only after on the acceptance by Newco of, terms and payment for, Shares tendered conditions set forth in the Offerthis Section 1.4, to purchase at a price per share equal to the Offer Price paid in the Offer up to that number (but not less than that number) of Shares newly issued shares of Seller Common Stock (the “Top-Up Shares”) as is equal to the lowest number of Shares shares of Seller Common Stock that, when added to the number of Shares shares of Seller Common Stock directly or indirectly owned by Parent, Newco and any subsidiaries or affiliates of the Parent or Newco, taken as a whole, the Purchaser at the time of such exerciseexercise of the Top-Up Option, shall constitute one Share share more than 90% of the total Shares then shares of Seller Common Stock outstanding (assuming immediately after the issuance of the Top-Up Shares) at Shares (determined on a price per share equal to “fully diluted basis” (which assumes conversion or exercise of all derivative securities regardless of the Per Share Amountconversion or exercise price, the vesting schedule or other terms and conditions thereof)); provided, however, that (i) in no event shall the Top-Up Option shall not be exercisable (x) for a number of Shares shares of Seller Common Stock in excess of the Company’s then shares of Seller Common Stock authorized and unissued Shares (including as authorized and unissued Shares, for purposes at the time of this Section 1.4, any Shares held in the treasury exercise of the Company), or Top-Up Option and (yii) the Top-Up Option may not be exercised unless, following the time of acceptance by Newco the Purchaser of Shares shares of Seller Common Stock tendered in the Offer or after a subsequent offering period, eighty-five percent (85% %) or more of the Shares then outstanding shares of Seller Common Stock shall be directly or indirectly owned by the 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 Purchaser. The Top-Up Option may not shall be exercised if exercisable once at any provision time following the Acceptance Date and prior to the earlier to occur of applicable law or any judgment, injunction, order or decree (a) the Effective Time and (b) the termination 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 this Agreement in accordance 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 applicableits terms.

Top-Up Option. (a) The Company Subject to the satisfaction of the Minimum Condition, the Target hereby irrevocably grants to Newco Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only after on the acceptance by Newco of, terms and payment for, Shares tendered conditions set forth in the Offerthis Section 2.04, to purchase at a price per share equal to $1.18 up to that number (but not less than that number) of Shares newly issued shares of Target Common Stock (the “Top-Up Shares”) as is equal to the lowest number of Shares shares of Target Common Stock that, when added to the number of Shares shares of Target Common Stock owned by ParentParent and its Subsidiaries, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a wholeincluding Merger Sub, at the time of such exerciseexercise of the Top-Up Option, shall constitute constitutes one Share share more than 90% of the total Shares then shares of Target Common Stock outstanding (assuming immediately after the issuance of the Top-Up 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 Per Share Amountconversion or exercise price, the vesting schedule or other terms and conditions thereof); provided, however, that (i) in no event shall the Top-Up Option will not be exercisable (x) for a number of Shares shares of Target Common Stock in excess of the Company’s then shares of Target Common Stock authorized and unissued Shares (including as authorized and unissued Shares, for purposes of this Section 1.4, any Shares or held in the treasury of the Company), or (y) unless, following Target at 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 Option (giving effect to the Company that shares of Target Common Stock issuable pursuant to all then-outstanding stock options, restricted stock units and any other rights to acquire Target Common Stock as promptly as practicable following if such exerciseshares were outstanding), Newco shall (and Parent shall cause Newco toii) 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 and the issuance and 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 prohibited by any Law or madeOrder, as applicableand (iii) the issuance of the Top-Up Shares does not require approval of the Target’s stockholders under applicable Law (including the rules and regulations of any applicable United States securities exchange on which the Target Common Stock is traded). The Top-Up Option will be exercisable only once, in whole but not in part, until the later of thirty (30) days following the Offer Closing or fifteen (15) days following the conclusion of the “subsequent offering periods” under Section 2.01(f) (the “Top-Up Option Exercise Period”).

Top-Up Option. (a) The Company hereby irrevocably grants to Newco Purchaser an option (the “Top-Up Option”), exercisable in Purchaser’s discretion, but only after the acceptance by Newco 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 (the “Top-Up Shares”) as is equal to the lesser of (i) the lowest number of Shares that, when added to the number of Shares owned by Parent, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a whole, Purchaser at the time of such exercise, shall will constitute one Share share more than ninety percent (90% %) of the total Shares then outstanding on a Fully-Diluted Basis (assuming the issuance of the Top-Up Shares) at a price per share Share equal to the Per Share AmountOffer Price 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 (i1) in no event shall the Top-Up Option will be exercisable only once and only on or prior to the fifth (x5th) for a number of Shares in excess Business Day after the later of the Company’s then authorized and unissued Shares (including as authorized and unissued Shares, for purposes Expiration Date or the expiration date 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, period and (iii2) the Top-Up Option may not be exercised if any provision of applicable law Law (including the Nasdaq rules) 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, tribunalGovernmental Entity prohibits, or judicial or arbitral body (each, a “Governmental Entity”) shall prohibit, or require 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.

Top-Up Option. (a) The In the event the Minimum Tender Condition is satisfied, the Company hereby irrevocably grants to Newco Merger Sub an irrevocable option (the “"Top-Up Option”"), exercisable only after on the acceptance by Newco of, terms and payment for, Shares tendered conditions set forth in the Offerthis Section 1.4, to purchase at a price per share equal to the Offer Price paid in the Offer up to that number (but not less than that number) of newly issued, fully paid, and nonassessable Shares (the “"Top-Up Shares”") as is equal to the lowest number of Shares that, when added to the number of Shares owned by Parent, Newco Parent and any subsidiaries or affiliates of Parent or Newco, taken as a whole, Merger Sub at the time of such exerciseexercise of the Top-Up Option, shall constitute one Share share more than 90% of the total Shares then outstanding (assuming immediately after the issuance of the Top-Up 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 Per Share Amountconversion or exercise price, the vesting schedule, or other terms and conditions thereof); provided, however, that that: (i) in no event shall the Top-Up Option shall not be exercisable (x) for a number of Shares in excess of the Company’s then Shares 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 at 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 toii) 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 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 respect whole but not in part, at any time following the Offer Acceptance Time and prior to the earlier to occur of: (A) the Effective Time; and (B) the termination of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicablethis Agreement in accordance with its terms.

Top-Up Option. (a) The Company hereby irrevocably grants to Newco Merger Sub an option (the “Top-Up Option”), exercisable only after the acceptance by Newco Merger Sub of, and payment for, Shares tendered in the Offer, to purchase that number (but not less than that number) of Shares shares of Company Common Stock (the “Top-Up Shares”) as is equal to the lowest number of Shares shares of Company Common Stock that, when added to the number of Shares shares of Company Common Stock owned by Parent, Newco Merger Sub and any subsidiaries Subsidiaries or affiliates Affiliates of Parent or Newco, Merger Sub taken as a whole, at the time of such exercise, shall constitute one Share share more than 90% of the total Shares shares of Company Common Stock then outstanding (assuming the issuance of the Top-Up Shares) Shares at a price per share equal to the Per Share AmountOffer Price); provided, however, that (i) in no event shall the Top-Up Option be exercisable (x) for a number of Shares shares of Company Common Stock in excess of the Company’s then authorized and unissued Shares shares of Company Common Stock (including as authorized and unissued Shares, shares of Company Common Stock for purposes of this Section 1.4, any Shares shares of Company Common Stock held in the treasury of the Company), or (y) unless, following if the time issuance of acceptance shares of Company Common Stock by Newco of Shares tendered the Company in connection with the Offer or after a subsequent offering period, 85% or more exercise of the Shares then outstanding shall be directly or indirectly owned Top-Up Option by Parent or NewcoMerger Sub would violate applicable rules of the AMEX, (ii) Newco Merger Sub 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 Merger Sub shall (and Parent Purchaser shall cause Newco Merger Sub 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 Governmental Authority (each, a “Governmental Entity”as defined in Section 2.7(d)) shall prohibit, or require any action, consent, approval, authorization or permit of, action by, or filing with or notification towith, any Governmental Entity Authority 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. Payment by Merger Sub of the purchase price for the Top-Up Option may be made, at Merger Sub’s option, by delivery of (i) immediately available funds by wire transfer to an account designated by the Company or (B) a demand note issued by Merger Sub in customary form that is secured by, and has recourse only against, the stock to be issued pursuant to the Top-Up Option in a principal face amount equal to the number of shares of Company Common Stock being purchased pursuant to the Top-Up Option multiplied by the Offer Price.

Top-Up Option. (a) The Company Subject to the satisfaction of the Minimum Condition, the Target hereby irrevocably grants to Newco Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only after on the acceptance by Newco of, terms and payment for, Shares tendered conditions set forth in the Offerthis Section 2.04, to purchase at a price per share equal to $0.98 up to that number (but not less than that number) of Shares newly issued shares of Target Common Stock (the “Top-Up Shares”) as is equal to the lowest number of Shares shares of Target Common Stock that, when added to the number of Shares shares of Target Common Stock owned by ParentParent and its Subsidiaries, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a wholeincluding Merger Sub, at the time of such exerciseexercise of the Top-Up Option, shall constitute constitutes one Share share more than 90% of the total Shares then shares of Target Common Stock outstanding (assuming immediately after the issuance of the Top-Up 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 Per Share Amountconversion or exercise price, the vesting schedule or other terms and conditions thereof); provided, however, that (i) in no event shall the Top-Up Option will not be exercisable (x) for a number of Shares shares of Target Common Stock in excess of the Company’s then shares of Target Common Stock authorized and unissued Shares (including as authorized and unissued Shares, for purposes of this Section 1.4, any Shares or held in the treasury of the Company), or (y) unless, following Target at 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 Option (giving effect to the Company that shares of Target Common Stock issuable pursuant to all then-outstanding stock options, restricted stock units and any other rights to acquire Target Common Stock as promptly as practicable following if such exerciseshares were outstanding), Newco shall (and Parent shall cause Newco toii) 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 and the issuance and 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 prohibited by any Law or madeOrder, as applicableand (iii) the issuance of the Top-Up Shares does not require approval of the Target’s stockholders under applicable Law (including the rules and regulations of any applicable United States securities exchange on which the Target Common Stock is traded). The Top-Up Option will be exercisable only once, in whole but not in part, until the later of thirty (30) days following the Offer Closing or fifteen (15) days following the conclusion of the “subsequent offering periods” under Section 2.01(f) (the “Top-Up Option Exercise Period”).

Top-Up Option. (a) The Company hereby irrevocably grants to Newco Purchaser an option (the “Top-Up Option”), exercisable in Purchaser’s discretion, but only after the acceptance by Newco 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 (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned by Parent, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a whole, Purchaser at the time of such exercise, shall will constitute one Share share more than ninety percent (90% %) of the total Shares then outstanding (assuming the issuance of the Top-Up Shares) at a price per share Share equal to the Per Share AmountOffer Price; provided, however, that (i1) the Top-Up Option will be exercisable only once, at such time as Parent and Purchaser, directly or indirectly, own at least eighty (80%) of the total Shares then outstanding, and only on or prior to the fifth (5th) Business Day after the expiration date of the Offer or the expiration date of any subsequent offering period, (2) in no event shall will 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 1.41.5(a), 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 (iii3) the Top-Up Option may not be exercised if any provision of applicable law Law (including the Nasdaq rules) 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 Entity will 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 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.

Top-Up Option. (a) The Company hereby irrevocably grants to Newco Purchaser an irrevocable option (the “Top-Up Option”), exercisable only after on the acceptance by Newco of, terms and payment for, Shares tendered conditions set forth in the Offerthis Section 1.4, to purchase at a price per share equal to the Offer Price paid in the Offer up to that number (but not less than that number) of Shares newly issued shares of Company Common Stock (the “Top-Up Shares”) as is equal to the lowest number of Shares shares of Company Common Stock that, when added to the number of Shares shares of Company Common Stock directly or indirectly owned by Parent, Newco and any subsidiaries or affiliates of Parent or Newco, taken as a whole, Purchaser at the time of such exerciseexercise of the Top-Up Option, shall constitute one Share share more than 90% of the sum of the following: (A) the total number of shares of Company Common Stock outstanding immediately after the issuance of the Top-Up Shares then plus (B) the total number of shares of Company Common Stock that are issuable within the ten (10) Business Days after the issuance of the Top-Up Shares upon the vesting, conversion or exercise of all derivative securities, including Company Compensatory Awards, warrants, options, convertible or exchangeable securities or other rights to acquire Company Common Stock, regardless of the conversion or exercise price or other terms and conditions thereof; provided, however, (A) the Top-Up Option shall not be exercisable for a number of shares of Company Common Stock in excess of the sum of the shares of Company Common Stock authorized, unissued and not reserved for Company Compensatory Awards or held by the Company at the time of exercise of the Top-Up Option; provided, further, however, that the Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of shares of Company Common Stock pursuant thereto, the Short Form Threshold would be reached. Upon Parent’s request, Company shall use reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of shares of Company Common Stock issued and outstanding (assuming as of immediately prior to the exercise of the Top-Up Option and after giving effect to the issuance of the Top-Up Shares) at a price per share equal to the Per Share Amount; provided, however, that (i) in no event shall the . The Top-Up Option shall be exercisable only once at any time following the Acceptance Date and prior to the earlier to occur of (xa) for a number of Shares in excess of the Company’s then authorized Effective Time and unissued Shares (including as authorized and unissued Shares, for purposes b) the termination 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 Agreement 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 applicableits terms.