Common use of Exercise of Top-Up Option Clause in Contracts

Exercise of Top-Up Option. Upon the exercise of the Top-Up Option in accordance with Section 2.03(a), Purchaser shall so notify the Company and shall set forth in such notice (1) the number of Shares expected to be owned, directly or indirectly, by Parent or Purchaser immediately preceding the purchase of the Top-Up Option Shares (2) a place and time for the closing of the purchase of the Top-Up Option Shares and (3) Purchaser’s agreement to (and Parent’s agreement to cause Purchaser to) consummate the Merger in accordance with the NJBCA as contemplated by this Agreement as promptly as practicable following issuance of the Top-Up Option Shares. The Company shall, as soon as practicable following receipt of such notice, notify Purchaser of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Option Shares, Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares pursuant to this Section 2.03, and the Company shall cause to be issued to Purchaser a Certificate representing the Top-Up Option Shares, which may include any legends required by applicable securities Laws, or, if the Company does not then have certificated shares, the applicable number of uncertificated shares represented by book-entry. At its election, Purchaser may pay the aggregate purchase price payable for the Top-Up Option Shares either (A) in cash by wire transfer of immediately available funds to an account designated by the Company or (B) by executing and delivering to the Company a promissory note in form and substance reasonably satisfactory to the Company having a principal amount equal to the balance of the aggregate purchase price for the Top-Up Option Shares and a per annum interest rate of one hundred thirty percent (130%) of the short-term AFR applicable to notes issued on the date that such promissory note is issued, which promissory note shall be payable in full with accrued interest on the third (3rd) anniversary of the date such promissory note is issued and shall be full recourse against NDI and Purchaser, but shall not be recourse to any extent to Parent (the “Top-Up Option Note”). The Parties shall cooperate to ensure that any issuance of Top-Up Option Shares is accomplished consistent with all applicable Laws.

Exercise of Top-Up Option. Upon the exercise of the Top-Up Option in accordance with Section 2.03(a2.4(a), Purchaser Parent shall so notify the Company and shall set forth in such notice (1i) the number of Shares that are expected to be ownedowned by Parent, directly Merger Sub or indirectly, by any wholly owned Subsidiary of Parent or Purchaser Merger Sub immediately preceding the purchase of the Top-Up Option Shares and (2ii) a place and time for the closing of the purchase of the Top-Up Option Shares and (3) Purchaser’s agreement to (and Parent’s agreement to cause Purchaser to) consummate the Merger in accordance with the NJBCA as contemplated by this Agreement as promptly as practicable following issuance of the Top-Up Option Shares. The Company shall, as soon as practicable following receipt of such notice, notify Purchaser Parent and Merger Sub of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Option Shares, Purchaser Parent or Merger Sub, as the case may be, shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares pursuant to this Section 2.03Shares, and the Company shall cause to be issued to Purchaser Parent or Merger Sub, as applicable, a Certificate certificate representing the Top-Up Option Shares, which may include any legends required by applicable securities Laws, or, if the Company does not then have certificated shares, the applicable number of uncertificated shares represented by book-entry. At its election, Purchaser may pay the The aggregate purchase price payable for the Top-Up Option Shares either (A) may be paid by Merger Sub or Parent in cash by wire transfer of immediately available funds to an account designated by the Company or (B) by executing and delivering to the Company a promissory note in form and substance reasonably satisfactory to the Company having a principal amount equal to the balance of the aggregate purchase price for the Top-Up Option Shares and a per annum interest rate of one hundred thirty percent (130%) of the short-term AFR applicable to notes issued on the date that Shares, or some combination thereof. Any such promissory note is issuedshall bear interest at a rate of interest per annum equal to 3%, which promissory note shall be payable in full with accrued interest mature on the third (3rd) first anniversary of the date of execution and delivery of such promissory note is issued and may be prepaid without premium or penalty. In the event that Merger Sub becomes the owner of 90.0005% or more of the outstanding shares of Common Stock, Parent shall be full recourse against NDI and Purchaser, but shall not be recourse promptly cause Merger Sub to any extent to Parent (consummate the “Top-Up Option Note”). The Parties shall cooperate to ensure that any issuance Merger in accordance with Section 253 of Top-Up Option Shares is accomplished consistent with all applicable Lawsthe DGCL.

Exercise of Top-Up Option. Upon the exercise of the Top-Up Option in accordance with Section 2.03(a1.4(a), Purchaser the Parent shall so notify the Company and shall set forth in such notice (1i) the number of Shares that are expected to be ownedowned by the Parent, directly the Purchaser or indirectly, by any wholly owned Subsidiary of the Parent or the Purchaser immediately preceding the purchase of the Top-Up Option Shares and (2ii) a place and time for the closing of the purchase of the Top-Up Option Shares (which, subject to applicable Law and any required regulatory approvals, shall be effected as promptly as practicable and not more than two (32) Purchaser’s agreement Business Days after date such notice is delivered to (the Company). Such notice shall also include an undertaking signed by the Parent and Parent’s agreement the Purchaser that, as promptly as practicable after such exercise and the delivery by the Company of the Top-Up Option Shares, to cause Purchaser to) consummate the Merger in accordance with the NJBCA as contemplated by this Agreement as promptly as practicable following issuance of the Top-Up Option Sharesterms hereof. The Company shall, as soon as practicable following receipt of such notice, notify the Parent and the Purchaser of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Option Shares, Purchaser the Parent or the Purchaser, as the case may be, shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares pursuant to this Section 2.03Shares, and the Company shall cause to be issued to Purchaser the Parent or the Purchaser, as applicable, a Certificate certificate representing the Top-Up Option Shares, which may include any legends required by applicable securities Laws, or, if the Company does not then have certificated shares, the applicable number of uncertificated shares represented by book-entry. At its election, Purchaser may pay the The aggregate purchase price payable for the Top-Up Option Shares either shall be paid by the Parent or the Purchaser as follows: (Ai) the portion of the aggregate purchase price equal to the par value of the Top-Up Shares shall be paid in cash, and (ii) the balance of the remaining aggregate purchase price may be paid (x) in cash by wire transfer of immediately available funds to an account designated by the Company or (By) by executing and delivering to the Company a promissory note in form and substance reasonably satisfactory to the Company having a principal amount equal to the balance of the aggregate purchase price for the Top-Up Option Shares and a per annum interest rate of one hundred thirty percent (130%) of the short-term AFR applicable to notes issued on the date that Shares, or some combination thereof. Any such promissory note is issuedshall be on terms as provided by the Parent or the Purchaser, which terms shall include the following: (i) the principal amount and accrued interest under the promissory note shall be payable upon the demand of the Company, (ii) the unpaid principal amount of the promissory note will accrue simple interest at the per annum of 1.0%, (iii) the promissory note may be prepaid in full with whole or in part at any time, without penalty or prior notice and (iv) the unpaid principal amount and accrued interest under the promissory note shall be immediately become due and payable in the event that (x) Purchaser fails to make any payment of interest on the third promissory note as provided therein and such failure continues for a period of 30 days or (3rdy) anniversary Purchaser files or has filed against it any petition under any bankruptcy or insolvency law or makes a general assignment for the benefit of creditors. Upon the delivery of the date such promissory note is issued appropriate exercise notice and shall the tender of the consideration described above, the Purchaser shall, to the extent permitted by applicable Law, be full recourse against NDI and Purchaser, but shall not deemed to be recourse to any extent to Parent (the “Top-Up Option Note”). The Parties shall cooperate to ensure that any issuance holder of record of the Top-Up Option Shares is accomplished consistent with all applicable Lawsissuable upon that exercise, notwithstanding that certificates representing those Top-Up Option Shares shall not then be actually delivered to the Purchaser or the Company shall have failed to refused to designate the account described above.

Exercise of Top-Up Option. Upon the exercise of the Top-Up Option in accordance with Section 2.03(a1.3(a), Purchaser Merger Sub shall so notify the Company and shall set forth in such notice (1i) the number of Shares shares of Common Stock expected to be owned, directly or indirectly, by Parent or Purchaser Merger Sub immediately preceding the purchase of the Top-Up Option Shares and (2ii) a place and time selected by Merger Sub for the closing of the purchase of the Top-Up Option Shares and (3) Purchaser’s agreement to (and Parent’s agreement to cause Purchaser to) consummate the Merger in accordance with the NJBCA as contemplated by this Agreement as promptly as practicable following issuance time for the closing being not more than five Business Days after the exercise of the Top-Up Option SharesOption. The Company shall, as soon as practicable following receipt of such notice, notify Purchaser Merger Sub of the sum of (1) the number of Shares shares of Common Stock then outstanding and (2) the total number of shares of Common Stock that are issuable within ten Business Days after the scheduled closing of the purchase of the Top-Up Option SharesShares upon the vesting, conversion or exercise of all outstanding options, warrants, convertible or exchangeable securities and similar rights, regardless of the conversion or exercise price or other terms and conditions thereof. At the closing of the purchase of the Top-Up Option Shares, Purchaser Merger Sub shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares pursuant to this Section 2.03, and the Company shall cause to be issued to Purchaser a Certificate representing the Top-Up Option Shares, which may include any legends required by applicable securities Laws, or, if the Company does not then have certificated shares, the applicable number of uncertificated shares represented by book-entry. At its election, Purchaser may pay the aggregate purchase price payable for the Top-Up Option Shares pursuant to this Section 1.3, and the Company shall cause to be issued to Merger Sub a certificate representing the Top-Up Option Shares. The aggregate purchase price payable for the Top-Up Shares may be paid either (Ai) entirely in cash by wire transfer of immediately available funds to an account designated by the Company or (Bii) at the election of Merger Sub or Parent, by paying in cash an amount equal to not less than the aggregate par value of the Top-Up Option Shares and by Merger Sub executing and delivering to the Company a an unsecured promissory note in form and substance reasonably satisfactory to the Company having a principal amount equal to the balance of the aggregate purchase price for the Top-Up Option Shares and a per annum interest rate of one hundred thirty percent (130%) of the short-term AFR applicable to notes issued on the date that Shares. Any such promissory note is issued, which promissory note shall bear interest at the rate of interest that would be payable in full with accrued interest by Parent under its commercial paper program for a similar term of borrowing as of the date of the promissory note, shall mature on the third (3rd) first anniversary of the date of execution and delivery of such promissory note is issued and shall may be full recourse against NDI prepaid at any time and Purchaserfrom time to time, but shall not be recourse to any extent to Parent (the “Top-Up Option Note”). The Parties shall cooperate to ensure that any issuance of Top-Up Option Shares is accomplished consistent with all applicable Lawsin whole or in part, without premium or penalty.

Exercise of Top-Up Option. Upon the exercise of the Top-Up Option in accordance with Section 2.03(a), Purchaser shall so notify the Company and shall set forth in such notice (1) the number of Shares expected to be owned, directly or indirectly, by Parent or Purchaser immediately preceding the purchase of the Top-Up Option Shares Shares, (2) the number of Top-Up Option Shares, (3) a place and time for the closing of the purchase of the Top-Up Option Shares and (34) Purchaser’s agreement to (and Parent’s agreement to cause Purchaser to) consummate the Merger in accordance with the NJBCA DGCL as contemplated by this Agreement as promptly as practicable following issuance of the Top-Up Option Shares. The Company shall, as soon as practicable following receipt of such notice, notify Purchaser of the number of Shares then outstanding and the number of Top-Up Option Shares. At the closing of the purchase of the Top-Up Option Shares, which the parties hereby agree will occur on the same day such notice is delivered by Purchaser to the Company, Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares pursuant to this Section 2.03, and the Company shall cause to be issued to Purchaser a Certificate certificate representing the Top-Up Option Shares, which may include any legends required by applicable securities Lawslaws, or, if the Company does not then have certificated shares, the applicable number of uncertificated shares represented by book-entry. At its election, Purchaser may pay the aggregate purchase price payable for the Top-Up Option Shares either (A) in cash by wire transfer of immediately available funds to an account designated by the Company or Company, (B) by executing and delivering to the Company a promissory note in form and substance reasonably satisfactory to the Company having a principal amount equal to the balance of the aggregate purchase price for the Top-Up Option Shares and a per annum an interest rate of one hundred thirty three percent (1303%) of the short-term AFR applicable to notes issued on the date that such promissory note is issuedper annum, which promissory note shall be payable in full with accrued interest on immediately at the third Effective Time or (3rdC) anniversary by a combination of the date such promissory note is issued methods set forth in the preceding clauses (A) and shall be full recourse against NDI and Purchaser, but shall not be recourse to (B); provided that payment of the par value of any extent to Parent (the “Top-Up Option Note”Shares must be in cash in accordance with the preceding clause (A). The Parties shall cooperate to ensure that any issuance of Top-Up Option Shares is accomplished consistent with all applicable Lawslaws.