Top-Up Option. (a) The Company hereby grants to Purchaser an irrevocable option (the “Top-Up Option”), such Top-Up Option to be exercisable only on or after the Expiration Date and upon the occurrence of a Top-Up Exercise Event (as defined below), to purchase that number of Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Shares owned by Parent, Purchaser or their affiliates at the time of such exercise, shall constitute one share more than ninety percent (90%) of the Shares then outstanding (assuming the issuance of the Top-Up Option Shares and the exercise of all outstanding exercisable options and warrants to purchase Shares) at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable if the number of Shares subject thereto exceeds the number of authorized Shares available for issuance under the Company’s certificate of incorporation, as amended. (b) Purchaser may exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence for a Top-Up Exercise Event (as defined below) and prior to (i) the Effective Time, (ii) the termination of this Agreement pursuant to its terms, or (iii) the date which is five (5) business days after the occurrence of a Top-Up Exercise Event, by giving written notice to the Company and tendering to the Company a check or wire transfer for the full amount of the exercise price. (c) For purposes of this Agreement, a “Top-Up Exercise Event” shall occur only upon Purchaser’s purchase of and payment pursuant to the Offer (or any subsequent offering period pursuant to Section 1.1(d)) for Shares constituting at least 85% of the Shares then outstanding.
Appears in 3 contracts
Samples: Merger Agreement (Informax Inc), Merger Agreement (Invitrogen Corp), Merger Agreement (Invitrogen Corp)
Top-Up Option. (a) The Company hereby grants to Purchaser an irrevocable option (the “"Top-Up Option”), such Top-Up Option to be exercisable only on or after the Expiration Date and upon the occurrence of a Top-Up Exercise Event (as defined below), ") to purchase that number of Shares shares of Common Stock (the “------------- "Top-Up Option Shares”") equal to the lowest number of Shares shares of Common Stock -------------------- that, when added to the number of Shares shares of Common Stock owned by Parent, Purchaser or their affiliates at the time of such exercise, shall constitute one share more than ninety percent (90%) % of the Shares shares of Common Stock then outstanding (assuming the issuance of the Top-Up Option Shares and the exercise of all outstanding exercisable options and warrants to purchase Shares) at a price per share equal to the Offer PriceConsideration; provided, -------- however, that the Top-Up Option shall not be exercisable if unless immediately ------- after such exercise Purchaser would own more than 90% of the number shares of Shares subject thereto exceeds the number of authorized Shares available for issuance under the Company’s certificate of incorporation, as amendedCommon Stock then outstanding.
(b) Purchaser may exercise the Top-Up Option, in whole but not in part, at any one time after the occurrence for 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, Time and (ii) the termination of this Agreement pursuant to its terms, or (iii) the date which is five (5) business days after the occurrence of a Top-Up Exercise Event, by giving written notice to the Company and tendering to the Company a check or wire transfer for the full amount of the exercise price.
(c) For purposes of this Agreement, a “Top-Up Exercise Event” shall occur only upon Purchaser’s purchase of and payment pursuant to the Offer (or any subsequent offering period pursuant to Section 1.1(d)) for Shares constituting at least 85% of the Shares then outstanding.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Telocity Delaware Inc), Merger Agreement (Hughes Electronics Corp), Merger Agreement (Telocity Delaware Inc)
Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”), such Top-Up Option to be exercisable only on or after the Expiration Date and upon the occurrence of a Top-Up Exercise Event (as defined below), ) to purchase that number of newly issued Shares (the “Top-Up Option Shares”) equal to the lowest number of Shares that, when added to the number of Shares owned by Parent, the Parent and the Purchaser or their affiliates at immediately prior to the time of such exerciseexercise of the Top-Up Option, shall constitute one share Share more than ninety percent (90%) % of the Shares then outstanding (assuming the issuance of the Top-Up Option Shares and the exercise of all outstanding exercisable options and warrants to purchase Shares) at a price per share Share equal to the Share Offer Price; provided, however, that the Top-Up Option shall not be exercisable if unless immediately after such exercise the Purchaser would own more than 90% of the Shares then outstanding; provided, further, that in no event shall the Top-Up Option be exercisable for a number of Shares subject thereto exceeds the number in excess of authorized Shares available for issuance under the Company’s certificate of incorporation, then authorized but unissued Shares (giving effect to such Shares reserved for issuance pursuant to outstanding Options and Warrants as amendedthough 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 for of a Top-Up Exercise Event (as defined below) and prior to the earlier to occur of (i) the Effective Time, (ii) the termination of this Agreement pursuant to its terms, or (iii) the date which that is five (5) ten business days after the occurrence of a Top-Up Exercise Event, by giving written notice and (iii) the termination of this Agreement pursuant to the Company and tendering to the Company a check or wire transfer for the full amount of the exercise price.
(c) its terms. For purposes of this Agreement, Agreement a “Top-Up Exercise Event” shall occur only upon Purchaser’s purchase acceptance of and Shares for payment pursuant to the Offer (or any subsequent offering period pursuant to Section 1.1(d)) for Shares constituting at least 85% but less than 90% of the Shares then outstanding.
Appears in 3 contracts
Samples: Merger Agreement (Main Street Restaurant Group, Inc.), Merger Agreement (Main Street Restaurant Group, Inc.), Merger Agreement (Main Street Acquisition CORP)
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”), such Top-Up Option to be exercisable only on or after the Expiration Date and upon the occurrence of a Top-Up Exercise Event (as defined below), ) to purchase up to that number of Shares shares of Company Common Stock (the “Top-Up Option Shares”) 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 collectively owned by Parent, Purchaser or Acquisition and any of their respective affiliates at immediately following consummation of the time of such exerciseOffer, shall constitute one share more than ninety percent (at least 90%) % of the Fully Diluted Shares then outstanding (assuming the issuance of the Top-Up Option Shares and the exercise of all outstanding exercisable options and warrants to purchase Shares) ), at a purchase price per share Top-Up Option Share equal to the Offer Price; providedConsideration, 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 if value of the number of Shares subject thereto exceeds the number of authorized Shares available for issuance under the Company’s certificate of incorporation, as amendedOffer 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 for of a Top-Up Exercise Event (as defined below) and prior to (i) the Effective Time, (ii) the termination of this Agreement pursuant to its terms, or (iii) the date which is five (5) business days after the occurrence of a Top-Up Exercise Event, by giving written notice to Termination Event (as defined below). For the Company and tendering to the Company a check or wire transfer for the full amount of the exercise price.
(c) For purposes of this Agreementhereof, a “Top-Up Exercise Event” shall occur only upon PurchaserParent’s purchase of and acceptance for payment pursuant to the Offer (or including, without limitation, any subsequent offering period that Parent may elect to extend pursuant to Section 1.1(d)the terms and conditions of this Agreement) for of Shares constituting at least 85constituting, together with Shares owned directly or indirectly by any other affiliates of Parent, less than 90% of the Fully-Diluted Shares, but only if (i) the issuance of the Top-Up Option Shares then outstanding.pursuant thereto would not
Appears in 1 contract
Samples: Merger Agreement (K2 Inc)
