Common use of Top Up Clause in Contracts

Top Up. (a) Subject to Section 1.4(b), Section 1.4(c), Section 1.4(d) and Section 1.4(e) hereof, the Company grants to Merger Sub a non-assignable right and Merger Sub accepts a non-assignable obligation (the “Top-Up”), exercisable only upon the terms and subject to the conditions set forth herein, to purchase from the Company that number of newly issued shares of Company Common Stock 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 Merger Sub at the time of exercise of the Top-Up, constitutes one share more than ninety percent (90%) of the number of shares of Company Common Stock that would be outstanding immediately after the issuance of all shares of Company Common Stock issued pursuant to the exercise of the Top-Up, at a price per share of Company Common Stock equal to the greater of (i) the last reported sale price of a share of Company Common Stock on the NASDAQ Global Market on the last trading day prior to the date on which the Top-Up is exercised or (ii) the Cash Portion of the Merger Consideration. (b) Merger Sub shall (unless the Short Form Threshold has already been exceeded) exercise the Top-Up once, in whole and not in part, promptly following the later of the Acceptance Time or the expiration of the Subsequent Offering Period, and in any event within one (1) Business Day after the date on which the Merger Sub accepts for payment shares of Company Common Stock pursuant to the Offer or such later expiration of the Subsequent Offering Period; provided, however, that, notwithstanding anything in this Agreement to the contrary, the Top-Up shall not be exercisable and the Company shall not be required to issue any shares pursuant to the Top-Up if (i) immediately after the issuance of shares of Company Common Stock pursuant to the Top-Up, the Short Form Threshold would not be reached (assuming the issuance of such shares pursuant to such exercise), (ii) the number of shares of Company Common Stock otherwise to be issued thereunder exceeds the aggregate number of shares of Company Common Stock that the Company is authorized to issue under its Certificate of Incorporation, as amended, but that are not issued and outstanding (and are not subscribed for or otherwise committed to be issued or reserved for issuance) at the time of the closing of the purchase of shares of Company Common Stock pursuant to the Top-Up, or (iii) a provision of any applicable Legal Requirement, excluding the rules and regulations of the NASDAQ Global Market, shall prohibit the exercise of the Top-Up or the delivery of the shares to be purchased thereunder in respect of such exercise. (c) The aggregate purchase price payable for the shares of Company Common Stock being purchased by Merger Sub pursuant to the Top-Up shall be determined by multiplying the number of such shares by the greater of (i) the last reported sale price of a share of Company Common Stock on the NASDAQ Global Market on the last trading day prior to the date on which the Top-Up is exercised or (ii) the Cash Portion of the Merger Consideration. Such purchase price may be paid by Merger Sub, at its election, either entirely in cash or by paying in cash an amount equal to not less than the aggregate par value of such shares and by executing and delivering to the Company one or more unsecured, non-negotiable and non-transferrable promissory notes having a principal amount equal to the balance of such purchase price, which promissory note shall be guaranteed by Parent. Any such promissory note shall bear interest at the rate of 6% per annum, compounded monthly, and shall mature on the first (1st) anniversary of the date of execution and delivery of such promissory note and may be prepaid without premium or penalty, and shall become immediately due and payable in the event that Parent or Merger Sub files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors. (d) In the event Merger Sub shall be obligated to exercise the Top-Up pursuant to Section 1.4(b), Merger Sub shall deliver to the Company a written notice setting forth (i) the number of shares of Company Common Stock that are or will be owned by Merger Sub immediately preceding the purchase of the shares pursuant to the Top-Up, (ii) the manner in which Merger Sub intends to pay the applicable exercise price, and (iii) the date of the closing of the purchase of shares of Company Common Stock pursuant to the Top-Up in accordance with Section 1.4(c). The Company shall, promptly following receipt of such notice, deliver written notice to Merger Sub specifying the number of shares of Company Common Stock to be issued pursuant to the Top-Up and the consideration due in exchange therefor, calculated in accordance with this Section 1.4 (or stating that the Top-Up is not then exercisable pursuant to Section 1.4(b)). At the closing of the purchase of such shares of Company Common Stock, Merger Sub shall cause to be delivered to the Company the consideration required to be delivered in exchange for such shares in accordance with this Section 1.4, and the Company shall cause to be issued to Merger Sub a certificate representing such shares (or the applicable number of shares of Company Common Stock in noncertificated book-entry form). The Company Board has taken all steps necessary such that upon issuance and delivery in accordance with this Section 1.4(d), such shares shall be validly issued, fully paid and non-assessable. (e) Parent and Merger Sub acknowledge that the shares of Company Common Stock issuable to Merger Sub pursuant to the Top-Up will not be registered under the Securities Act and will be issued in reliance upon an applicable exemption from registration under the Securities Act. Each of Parent and Merger Sub hereby represents and warrants to the Company that Merger Sub is and will be, upon the purchase of such shares, an “accredited investor” (as defined in Rule 501 of Regulation D under the Securities Act). (f) The parties hereto agree and acknowledge that, notwithstanding anything to the contrary herein, the failure to obtain approval of the Company’s stockholders of the issuance of Company Common Stock pursuant to the Top-Up as a result of the NASDAQ Global Market or any other applicable stock exchange listing requirements shall not cause any condition to the Offer not to be met.

Top Up. (a) Subject to Section 1.4(b), Section 1.4(c), Section 1.4(dSections 1.9(b) and Section 1.4(e) hereof(c), the Company grants to Merger Sub a non-assignable the irrevocable right and Merger Sub accepts a non-assignable obligation (the “Top-Up”), exercisable only upon the terms and subject to the conditions set forth herein, ) to purchase from the Company that number of newly issued shares of Company Common Stock 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 Merger Sub at (the time of exercise of the Top-Up, constitutes one share more than ninety percent (90%) of the number of shares of Company Common Stock that would be outstanding immediately after the issuance of all shares of Company Common Stock issued pursuant to the exercise of the Top-Up, at a price per share of Company Common Stock equal to the greater of (i) the last reported sale price of a share of Company Common Stock on the NASDAQ Global Market on the last trading day prior to the date on which the “Top-Up is exercised or (iiShares”) that would result in the Cash Portion of the Merger Consideration. (b) Merger Sub shall (unless the Short Form Threshold has already been exceeded) exercise the Top-Up once, in whole and not in part, promptly following the later of the Acceptance Time or the expiration of the Subsequent Offering Period, and in any event within one (1) Business Day after the date on which the Merger Sub accepts for payment shares of Company Common Stock pursuant to the Offer or such later expiration of the Subsequent Offering Period; provided, however, that, notwithstanding 90% Requirement being satisfied. Notwithstanding anything else in this Agreement to the contrary, the Top-Up shall not be exercisable and obligation of the Company shall not be required to issue any shares pursuant to and deliver the Top-Up if Shares upon the exercise of the Top-Up is subject to (and only to) the conditions that (i) immediately after no Judgment (as defined below) or other legal restraint (other than any listing requirement of any securities exchange) that has the issuance effect of shares preventing the exercise of Company Common Stock pursuant to the Top-Up, the Short Form Threshold would not be reached (assuming Up or the issuance and delivery of the Top-Up Shares in respect of such shares pursuant to such exercise)exercise shall be in effect, (ii) the number of Top-Up Shares shall not exceed the aggregate of (x) the number of shares of Company Common Stock otherwise to be issued thereunder exceeds held as treasury shares by the aggregate Company and any Company Subsidiary plus (y) the number of shares of Company Common Stock that the Company is authorized to issue under its Certificate certificate of Incorporation, as amended, incorporation but that are not issued and outstanding (and are not subscribed for or otherwise committed unreserved, in each case, as of immediately prior to be issued or reserved for issuance) at the time exercise of the closing Top-Up, and (iii) this Agreement shall not have been terminated in accordance with its terms. (b) Subject to the satisfaction of the purchase conditions set forth in the last sentence of Section 1.9(a), the Top-Up may be exercised by Merger Sub but only once, in whole and not in part, at, or at any time within three Business Days after the acceptance for payment of, and payment by Merger Sub for, any shares of Company Common Stock pursuant to the Top-Up, or Offer (iii) a provision of any applicable Legal Requirement, excluding the rules and regulations of the NASDAQ Global Market, shall prohibit the exercise of the Top-Up or the delivery of the shares to be purchased thereunder in respect of such exercise. (c) “Acceptance Time”). The aggregate purchase price payable for the shares of Company Common Stock being purchased by Merger Sub pursuant to the Top-Up Shares shall be determined by multiplying the number of such shares by the greater of (i) the last reported sale price of a share of Company Common Stock on the NASDAQ Global Market on the last trading day prior to the date on which the Top-Up is exercised or (ii) Shares by the Cash Portion of the Merger ConsiderationOffer Price, without interest. Such purchase price may be paid by Merger Sub, at its election, either (i) entirely in cash or (ii) by paying in cash an amount equal to not less than the aggregate par value of such shares Top-Up Shares and by executing and delivering to the Company one or more unsecureda non-negotiable, non-negotiable and non-transferrable transferable promissory notes note having a principal amount equal to the balance of such purchase price, which promissory note shall be guaranteed by Parent. Any such promissory note (A) shall be full recourse against Parent and Merger Sub, (B) shall be due one year from the date the Top-Up Shares are issued, (C) shall bear interest at the rate of 63% per annum, compounded monthly, and shall mature on the first (1stD) anniversary of the date of execution and delivery of such promissory note and may be prepaid without premium or penalty, (E) shall provide that the unpaid principal amount and accrued interest thereunder shall immediately become immediately due and payable in the event that Parent (1) Merger Sub fails to timely make any payment on the promissory note as provided therein and such failure continues for a period of 30 days or (2) Merger Sub files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors, and (F) shall have no other material terms. (dc) In the event that Merger Sub shall be obligated is required to exercise the Top-Up pursuant to Section 1.4(b)Up, Merger Sub it shall deliver to the Company a written notice (the “Top-Up Notice”) setting forth (i) the number of shares of Company Common Stock Top-Up Shares that are or will be owned by Merger Sub immediately preceding the it intends to purchase of the shares pursuant to the Top-Up, (ii) the manner in which Merger Sub it intends to pay the applicable exercise price, purchase price and (iii) the date of place and time at which the closing of the purchase of shares of Company Common Stock pursuant to the Top-Up Shares by Merger Sub is to take place. The Top-Up Notice shall also include an undertaking signed by Parent and Merger Sub that promptly following such exercise of the Top-Up, Merger Sub shall consummate the Merger in accordance with Section 1.4(c). The Company shall, promptly following receipt 253 of such notice, deliver written notice to Merger Sub specifying the number of shares of Company Common Stock to be issued pursuant DGCL as contemplated by Section 6.1(b) and upon the terms and subject to the Top-Up and the consideration due conditions set forth in exchange therefor, calculated in accordance with this Section 1.4 (or stating that the Top-Up is not then exercisable pursuant to Section 1.4(b))Agreement. At the closing of the purchase of such shares of Company Common Stockthe Top-Up Shares, Merger Sub shall cause to be delivered to the Company the consideration required to be delivered in exchange for such shares in accordance with this Top-Up Shares pursuant to Section 1.4, 1.9(b) and the Company shall cause to be issued to Merger Sub a certificate representing such shares (or the applicable number or, with Parent’s reasonable consent, evidence of shares of Company Common Stock in noncertificated book-entry formuncertificated shares). The parties hereto agree to use their reasonable best efforts to cause the closing of the purchase of the Top-Up Shares to occur as promptly as possible after (including, to the extent possible, on the same day as) the Top-Up Notice is deemed received by the Company Board has taken all steps necessary such that upon issuance and delivery pursuant to Section 9.1. The parties further agree to use their reasonable best efforts to cause the Merger to be consummated in accordance with this Section 1.4(d)253 of the DGCL as contemplated by Section 6.1(b) as close in time as possible to (including, such shares to the extent possible, on the same day as) the issuance of the Top-Up Shares. Parent, Merger Sub and the Company shall be validly issued, fully paid and noncooperate to ensure that any issuance of the Top-assessableUp Shares is accomplished in a manner consistent with all applicable Laws. (ed) Parent and Merger Sub acknowledge that the shares of Company Common Stock issuable to Top-Up Shares that Merger Sub pursuant to may acquire upon exercise of the Top-Up will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an applicable exemption from registration under the Securities Actthereunder for transactions not involving a public offering. Each of Parent and Merger Sub hereby represents represent and warrants warrant to the Company that Merger Sub is and is, or will be, be upon the purchase of such sharesthe Top-Up Shares, an “accredited investorAccredited Investor,” (as defined in Rule 501 of Regulation D under the Securities Act). Merger Sub agrees that the Top-Up and the Top-Up Shares to be acquired upon exercise of the Top-Up are being and will be acquired by Merger Sub for the purpose of investment and not with a view to, or for resale in connection with, any distribution thereof in violation of the Securities Act. (fe) The parties hereto hereby agree and acknowledge that, notwithstanding anything that in any appraisal proceeding with respect to the contrary hereinAppraisal Shares and to the fullest extent permitted by applicable Law, the failure to obtain approval fair value of the Company’s stockholders Appraisal Shares shall be determined in accordance with Section 262 of the issuance of Company Common Stock pursuant DGCL (“Section 262”) without regard to the Top-Up, the Top-Up as a result of the NASDAQ Global Market Shares or any other applicable stock exchange listing requirements shall not cause any condition promissory note delivered by Merger Sub to the Offer not to be metCompany in payment for the Top-Up Shares.

Top Up. (a) Subject to Section 1.4(b), Section 1.4(c), Section 1.4(d) and Section 1.4(e) hereof, the The Company hereby grants to Merger Sub a non-assignable right and Merger Sub accepts a non-assignable obligation an irrevocable option (the “Top-Up”)) to purchase, exercisable only upon the terms and subject at a price per share equal to the conditions set forth hereinOffer Price, up to purchase from the Company that number of newly issued or treasury shares (which, in either event, shall be fully paid and nonassessable 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 owned by Merger Sub Parent and its Subsidiaries at the time of exercise of the Top-Up, constitutes one share more than ninety percent (shall constitute at least 90%) % of the number of shares of Company Common Stock that would be outstanding immediately after the issuance of all shares of Company Common Stock issued pursuant to the exercise of the Top-Up, at a price per share of Company Common Stock equal to the greater of (i) the last reported sale price of a share of Company Common Stock on the NASDAQ Global Market on the last trading day prior to the date on which the Top-Up is exercised or (ii) the Cash Portion of the Merger Consideration. (b) Merger Sub shall (unless the Short Form Threshold has already been exceeded) exercise the Top-Up once, in whole and not in part, promptly following the later of the Acceptance Time or the expiration of the Subsequent Offering Period, and in any event within one (1) Business Day after the date Shares on which the Merger Sub accepts for payment shares of Company Common Stock pursuant to the Offer or such later expiration of the Subsequent Offering Perioda Fully Diluted Basis; provided, however, that, notwithstanding anything in this Agreement to the contrary, that the Top-Up shall not be exercisable and the Company shall not be required to issue any shares pursuant to the Top-Up if (i) immediately after the issuance of shares of Company Common Stock pursuant to the Top-Up, the Short Form Threshold would not be reached (assuming the issuance of such shares pursuant to such exercise), (ii) the number of shares of Company Common Stock otherwise to be issued thereunder exceeds the aggregate number of shares of Company Common Stock that the Company is authorized to issue under its Certificate of Incorporation, as amended, but that are not issued and outstanding (and are not subscribed for or otherwise committed to be issued or reserved for issuance) at the time of the closing of the purchase of shares of Company Common Stock pursuant to the Top-Up, or (iii) a provision of any applicable Legal Requirement, excluding the rules and regulations of the NASDAQ Global Market, shall prohibit the exercise of the Top-Up or the delivery of the shares to be purchased thereunder in respect of such exercise. (c) The aggregate purchase price payable for the shares of Company Common Stock being purchased by Merger Sub pursuant to the Top-Up shall be determined by multiplying the number of such shares by the greater of (i) the last reported sale price of a share of Company Common Stock on the NASDAQ Global Market on the last trading day prior to the date on which the Top-Up is exercised or (ii) the Cash Portion of the Merger Consideration. Such purchase price may be paid by Merger Sub, at its election, either entirely in cash or by paying in cash an amount equal to not less than the aggregate par value of such shares and by executing and delivering to the Company one or more unsecured, non-negotiable and non-transferrable promissory notes having a principal amount equal to the balance of such purchase price, which promissory note shall be guaranteed by Parent. Any such promissory note shall bear interest at the rate of 6% per annum, compounded monthly, and shall mature on the first (1st) anniversary of the date of execution and delivery of such promissory note and may be prepaid without premium or penalty, and shall become immediately due and payable in the event that Parent or Merger Sub files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors. (d) In the event Merger Sub shall be obligated to exercise the Top-Up pursuant to Section 1.4(b), Merger Sub shall deliver to the Company a written notice setting forth (i) the number of shares of Company Common Stock that are or will be owned by Merger Sub immediately preceding the purchase of the shares pursuant to the Top-Up, (ii) the manner in which Merger Sub intends to pay the applicable exercise price, and (iii) the date of the closing of the purchase of shares of Company Common Stock pursuant to the Top-Up in accordance with Section 1.4(c). The Company shall, promptly following receipt of such notice, deliver written notice to Merger Sub specifying the number of shares of Company Common Stock to be issued pursuant to the Top-Up and the consideration due in exchange therefor, calculated in accordance with this Section 1.4 (or stating that the Top-Up is not then exercisable pursuant to Section 1.4(b)). At the closing of the purchase of such shares of Company Common Stock, Merger Sub shall cause to be delivered to the Company the consideration required to be delivered in exchange for such shares in accordance with this Section 1.4, and the Company shall cause to be issued to Merger Sub a certificate representing such shares (or the applicable number of shares of Company Common Stock in noncertificated bookexcess of the shares of Company Common Stock authorized (and unissued or held in the treasury of the Company) at the time of exercise of the Top-entry form). The Company Board has taken all steps necessary such that upon issuance and delivery in accordance with this Section 1.4(d), such shares shall be validly issued, fully paid and non-assessable. Up (e) Parent and Merger Sub acknowledge that giving effect to the shares of Company Common Stock issuable to Merger Sub pursuant to the all then-outstanding stock options, restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding). The Top-Up will shall be exercised in whole but not be registered under in part at any one time following the Securities Act Offer Closing and will be issued in reliance upon an applicable exemption from registration under the Securities Act. Each of Parent and Merger Sub hereby represents and warrants prior to the Company that Merger Sub is earlier to occur of (i) the Effective Time and will be, upon (ii) the purchase termination of such shares, an “accredited investor” (as defined this Agreement in Rule 501 of Regulation D under the Securities Act). (f) The parties hereto agree and acknowledge that, notwithstanding accordance with Section 8.1. Notwithstanding anything to the contrary herein, the failure to obtain approval of the Company’s stockholders of the issuance of Company Common Stock pursuant to the Top-Up as a result of the NASDAQ Global Market or any other applicable stock exchange listing requirements shall not cause any condition to of the Offer not to be metmet or otherwise effect the Merger Sub’s right to exercise the Top-Up or the obligations of the Company to issue the Top-Up Shares. Subject to the terms and conditions hereof, and for so long as this Agreement has not been terminated pursuant to the provisions hereof, the Company shall maintain out of its existing authorized capital, free from preemptive rights, sufficient authorized but unissued (or treasury) shares of Company Common Stock issuable pursuant to this Agreement as Top-Up Shares so that the Top-Up may be exercised, after giving effect to the shares of Company Common Stock issuable pursuant to all Company RSUs and Company SARs in the amounts set forth in Section 4.1(c)(ii) as if such shares were outstanding.