Top-Up Option. (a) The Company hereby grants to Parent and Acquisition Sub an irrevocable option (the "Top-Up Option") to purchase, at a price per share equal to the Offer Price, a number of shares of Company Common Stock (the "Top-Up Option Shares") that, when added to the number of shares of Company Common Stock owned by Parent or any wholly-owned Subsidiary of Parent at the time of exercise of the Top-Up Option, constitutes one share of Company Common Stock more than 90% of the number of shares of Company Common Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares. The Top-Up Option may be exercised by Parent or Acquisition Sub, in whole but not in part, at any time on or after the Acceptance Date and on or prior to the tenth business day after the later of (i) the Acceptance Date or (ii) the expiration of any subsequent offering period; PROVIDED, HOWEVER, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the condition that no provision of any applicable law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable Legal Requirements, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Triangle Pharmaceuticals Inc), Agreement and Plan of Merger (Gilead Sciences Inc), Agreement and Plan of Merger (Triangle Pharmaceuticals Inc)
Top-Up Option. (a) The Company hereby grants to Parent and Acquisition Sub Purchaser an irrevocable option (the "“Top-Up Option") ”), such option to be exercisable only after Purchaser has purchased and paid for Company Shares constituting 88% of the then outstanding Company Shares, to purchase, at a price per share equal to the Offer PricePer Share Amount, a number of shares of Company Common Stock (the "“Top-Up Option Shares"”) that, when added to the number of shares of Company Common Stock owned by Parent or Purchaser or any wholly-owned Subsidiary subsidiary of Parent or Purchaser at the time of exercise of the Top-Up Option, constitutes one share of Company Common Stock more than 90% of the number of shares of Company Common Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares; provided, however, that in no event shall the Top-Up Option be exercisable for more than 1,682,784 shares of Company Common Stock. The Top-Up Option may be exercised by Parent or Acquisition SubPurchaser, in whole but not or in part, at any one time on or after the Acceptance Date expiration date of the Offer and on or prior to the tenth business day after the later of (i) the Acceptance Date expiration date of the Offer or (ii) the expiration of any subsequent offering period; PROVIDEDprovided, HOWEVERhowever, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the condition that no provision of any applicable law Law and no judgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable Legal Requirementslegal requirements of all Governmental Entities, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act of 1933, as amended (the “Securities Act”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Invitrogen Corp), Agreement and Plan of Merger (Bioreliance Corp)
Top-Up Option. (a) The Company hereby grants to Parent and Acquisition Merger Sub an irrevocable option (the "“Top-Up Option") ”), exercisable only on the terms and conditions set forth in this Section 1.03, to purchase, purchase at a price per share equal to the Offer Price, Price paid in the Offer a number of newly issued shares of Company Common Stock (the “Top-Up Shares”) equal to (and not less than) the lowest number of shares of Company Common Stock (the "Top-Up Option Shares") that, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent, U.S. Parent or any wholly-owned Subsidiary of Parent and Merger Sub at the time of exercise of the Top-Up Option, constitutes shall constitute one share of Company Common Stock more than 90% of the number of shares of Company Common Stock that will be outstanding immediately after the issuance of the Top-Up Shares; provided, however, that the Top-Up Option Sharesshall not be exercisable for a number of shares of Company Common Stock in excess of the number of shares of Company Common Stock authorized and unissued (and not reserved for issuance) at the time of exercise of the Top-Up Option. The Top-Up Option may shall be exercised by exercisable only once, at such time as Parent, U.S. Parent or Acquisition and Merger Sub, in whole but not in partdirectly or indirectly, own at least 80% of the outstanding shares of Company Common Stock (determined on a fully diluted basis) (i) following the expiration of the Offer and any time on or after the Acceptance Date subsequent offering period and on or (ii) prior to the tenth fifth business day after the later applicable expiration date of (i) the Acceptance Date Offer or (ii) the expiration of any subsequent offering period; PROVIDED, HOWEVER, that the . The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the condition that no provision of any applicable law Law and no judgmentJudgment, injunction, order or decree shall prohibit the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable Legal Requirements, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cgi Group Inc), Agreement and Plan of Merger (Stanley, Inc.)
Top-Up Option. (a) The Company hereby grants to Parent and Acquisition Merger Sub an irrevocable option (the "“Top-Up Option") to purchase”), at a price per share equal subject to the Offer Priceterms and conditions hereof, a to purchase from the Company that number of shares of Company Common Stock (the "“Top-Up Option Shares"”) equal to the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent or any wholly-owned Subsidiary of Parent and its Subsidiaries (including Merger Sub) at the time of exercise of the Top-Up Option, constitutes shall constitute one share of Company Common Stock more than 90% of the number of shares of Company Common Stock that will be outstanding immediately after outstanding, at an exercise price per Top-Up Share equal to the issuance Offer Price; provided that, the Merger Sub may, and at the request of the Company, Merger Sub shall (and at the request of the Company, Parent shall cause Merger Sub to) exercise the Top-Up Option Shares. The Top-Up Option may be exercised by Parent or Acquisition SubOption, in whole but not in part, at any time on or after the Acceptance Date and on or prior to the tenth business day after the later of only if (i) the Acceptance Date or (ii) the expiration of any subsequent offering period; PROVIDED, HOWEVER, that the obligation of the Company to deliver Top-Up Option Shares upon the exercise of the Top-Up Option and the issuance and delivery of the Top-Up Shares shall not be prohibited by any Law or Restraint, (ii) the Top-Up Option is subject to exercisable for not more than the condition that no provision number of any applicable law shares of Company Common Stock in excess of the shares of Company Common Stock authorized but unissued (and no judgmentnot reserved for issuance) at the time of exercise of the Top-Up Option, injunction, order or decree shall prohibit the and (iii) Merger Sub irrevocably commits upon exercise of the Top-Up Option or the delivery of the Topto promptly effect a short-Up Option Shares in respect of form merger pursuant to Section 1.05 hereof following such exercise. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable Legal Requirements, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hertz Global Holdings Inc), Agreement and Plan of Merger (Dollar Thrifty Automotive Group Inc)
Top-Up Option. (a) The Company hereby grants to Parent and Acquisition Sub Merger Subsidiary an irrevocable option (the "“Top-Up Option") ”), exercisable in its sole discretion and only on the terms and conditions set forth in this Section 2.03 following the Offer Closing, to purchase, purchase at a price per share equal to the Offer PricePrice that number of newly issued, a fully paid and nonassessable shares of Company Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock (the "Top-Up Option Shares") that, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent or any wholly-owned and Merger Subsidiary of Parent at the time of exercise of the Top-Up Option, constitutes one share of Company Common Stock more than shall constitute ninety percent (90% %) of the number of shares of Company Common Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares; provided, however, that 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 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 may shall be exercised by Parent or Acquisition Subexercisable only once, in whole but not in part, at any time on or after the Acceptance Date and on or prior to the tenth business day after the later of (i) the Acceptance Date or (ii) the expiration of any subsequent offering period; PROVIDED, HOWEVER, that the . The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the condition that no provision Applicable Law shall be in effect that has the effect of any applicable law and no judgment, injunction, order enjoining or decree shall prohibit otherwise prohibiting the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exerciseShares. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable Legal Requirements, including compliance with an applicable exemption from registration will terminate on the earlier of the Top-Up Option Shares under Effective Time and the Securities Acttermination of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Conmed Healthcare Management, Inc.)
Top-Up Option. (a) The Company hereby grants to Parent and Acquisition Sub an irrevocable option (the "“Top-Up Option") ”), exercisable only upon the terms and subject to purchasethe conditions set forth herein, to purchase at a price per share equal to the Offer Price, a Price such number of shares of Company Common Stock (the "Top-Up Option Shares") that, when added to the number of shares of Company Common Stock owned by Parent or any wholly-owned Subsidiary and Acquisition Sub as of Parent at immediately prior to the time of exercise of the Top-Up OptionOption as indicated by Parent or Acquisition Sub by notice to the Company, constitutes one share of Company Common Stock more than 90% of the number of shares of Company Common Stock that will be outstanding immediately after such issuance (the “Top-Up Option Shares”); provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise and the issuance of shares of Common Stock pursuant to the Top-Up Option, the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares). Upon Parent’s request, the Company shall use its reasonable best efforts to cause its transfer agent to certify in writing to Parent the number of shares of Common Stock issued and 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. The Top-Up Option may be exercised by Parent or Acquisition Sub, in whole but not in part, at any time on or after the Acceptance Date and on or prior to the tenth business day after the later of (i) the Acceptance Date or (ii) the expiration of any subsequent offering period; PROVIDED, HOWEVER, that the obligation of Sub may pay the Company the aggregate price required to deliver be paid for the Top-Up Option Shares upon by delivery of an unsecured, non-negotiable and non-transferable promissory note, bearing simple interest at 3% per annum, with principal and interest due one year after the exercise purchase of the Top-Up Option is subject to the condition that no provision of any applicable law and no judgmentShares, injunction, order prepayable in whole or decree shall prohibit the exercise of the Top-Up Option in part without premium or the delivery of the Top-Up Option Shares in respect of such exercise. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable Legal Requirements, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Actpenalty.
Appears in 1 contract
Top-Up Option. (a) The Company hereby grants to Parent and Acquisition Sub an irrevocable option (the "“Top-Up Option") ”), exercisable only on the terms and conditions set forth in this Section 2.3 following the Offer Closing, to purchase, purchase at a price per share equal to the Offer PricePrice that number of newly issued, a fully paid and nonassessable shares of Company Common Stock (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock (the "Top-Up Option Shares") that, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent or any wholly-owned Subsidiary of Parent and Acquisition Sub at the time of exercise of the Top-Up Option, constitutes shall constitute one share of Company Common Stock more than ninety percent (90% %) of the number of shares of Company Common Stock that will be outstanding immediately after the issuance of the Top-Up Option Shares; provided, however, that 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. The Top-Up Option may shall be exercised by Parent or Acquisition Subexercisable only once, in whole but not in part, at any time on or after the Acceptance Date and on or prior to the tenth business day after the later of (i) the Acceptance Date or (ii) the expiration of any subsequent offering period; PROVIDED, HOWEVER, that the . The obligation of the Company to issue and deliver the Top-Up Option Shares upon the exercise of the Top-Up Option is subject to the condition that no provision applicable Law shall be in effect that has the effect of any applicable law and no judgment, injunction, order enjoining or decree shall prohibit otherwise prohibiting the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares in respect of such exercise. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable Legal Requirements, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities ActShares.
Appears in 1 contract
