The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”) to purchase that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares owned by Parent, Merger Sub or their Affiliates at the time of such exercise, shall constitute one 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 equal to the Offer Price.
The Top-Up Option. The Company hereby grants to Purchaser an irrevocable option (the "TOP-UP OPTION") to purchase, subject to the terms hereof, that number of shares of common stock, $0.01 par value per share ("COMMON STOCK"), of the Company (the "TOP-UP OPTION SHARES") equal to the lowest number of shares of Common Stock that, when added to the number of shares of Common Stock owned by Purchaser at the time of such exercise, shall constitute one share more than 90% of the shares of Common Stock then outstanding (assuming the issuance of the Top-Up Option Shares) at a price per share equal to $5.25 (the "OPTION PRICE"); PROVIDED, HOWEVER, that the Top-Up Option shall not be exercisable unless immediately after such exercise Purchaser would own more than 90% of the shares of Common Stock then outstanding.
The Top-Up Option. The Company hereby grants to Acquisition Corp. an irrevocable option (the "Top-Up Option") to purchase, subject to the terms hereof, up to that number of shares of common stock, no par value per share ("Common Stock"), of the Company (the "Top-Up Option Shares") equal to the lowest number of shares of Common Stock that, when added to the number of shares of Common Stock owned by Acquisition Corp. at the time of such exercise, shall constitute one share more than 90% of the shares of Common Stock on a Fully-Diluted Basis (assuming the issuance of the Top-Up Option Shares) at a purchase price per Top-Up Option Share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise Acquisition Corp. would own more than 90% of the shares of Common Stock then outstanding and in no event shall Acquisition Corp. have the right hereunder to purchase shares of Common Stock to the extent (but only to the extent) that the exercise of Acquisition Corp.'s right to purchase shares of Common Stock hereunder would violate the rules or regulations of the Nasdaq National Market, Inc. The Company agrees to provide Acquisition Corp. with information regarding the number of authorized shares of Common Stock available for issuance on an ongoing basis.
The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”) to purchase from the Company up to that number of newly issued shares of Common Stock (the “Top-Up Option Shares”) equal to the aggregate number of shares of Common Stock that the Company is authorized to issue under its certificate of incorporation 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 exercise of the Top-Up Option, in each case, for consideration per Top-Up Option Share equal to the Offer Price.
The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, to purchase that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing), would constitute one Share more than ninety percent (90%) of the total Shares then outstanding (calculated on a fully diluted basis excluding securities convertible into Shares pursuant to the Convertible Notes, Shares issuable upon the exercise or vesting of Company Stock Options, Company RSUs, Deferred Share Rights and the Company ESPP that will be extinguished in exchange for a cash payment pursuant to Section 6.10 and after giving effect to the issuance of the Top-Up Shares), at a price per Top-Up Share equal to the Offer Price; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after the issuance of the Top-Up Shares the number of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis excluding securities convertible into Shares pursuant to the Convertible Notes and Shares issuable upon the exercise or vesting of Company Stock Options, Company RSUs, Deferred Share Rights and shares that may be acquired pursuant to the Company ESPP that will be extinguished in exchange for a cash payment pursuant to Section 6.10).
The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and conditions hereof, to purchase that number of Shares (the “Top-Up Shares”) equal to the lowest number of Shares that, when added to the number of Shares Beneficially Owned by Parent, Merger Sub and any other Affiliates of Parent collectively at the time of exercise (after giving effect to the Offer Closing), would constitute one Share more than ninety percent (90%) of the total Shares then outstanding (calculated on a fully diluted basis and after giving effect to the issuance of the Top-Up Shares), at a price per Top-Up Share equal to the Offer Price; provided, however, that (x) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to Shares reserved for issuance under the Company Benefit Plans and pursuant to the exercise of any other securities convertible into or exchangeable into Shares, if any, as if such Shares were outstanding); and (y) the Top-Up Option will not be exercisable unless immediately after the issuance of the Top-Up Shares the number of Shares owned by Parent, Merger Sub and any other Affiliates of Parent (after giving effect to the Offer Closing) will constitute one Share more than ninety percent (90%) of the Shares that will then be outstanding (calculated on a fully diluted basis).
The Top-Up Option. (a) The Company and the Company Partnership hereby grant to Purchaser an irrevocable option (the “Top-Up Option”) 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 and their respective affiliates at the time of such exercise, shall constitute one Share more than the number of Shares necessary for the Company to be merged with the Purchaser pursuant to Section 253 of the DGCL at a price per Share equal to the Offer Price (a “Short Form Merger”).
The Top-Up Option. (a) The Company hereby grants to Merger Sub an irrevocable option (the "Top-Up Option"), exercisable upon the terms and conditions of this Section 1.5, to purchase that number of newly- issued Shares (the "Top-Up Shares") equal to the lowest number of Shares that, when added to the number of Shares held by Parent and Merger Sub at the time of such exercise, shall constitute one share more than 90% of the total Shares then outstanding (determined on a fully diluted basis and assuming the issuance of the Top-Up Shares, but excluding from Merger Sub's ownership, but not from outstanding Shares, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee).
The Top-Up Option. The Company hereby grants to Acquisition Corp. an irrevocable option (the "TOP-UP OPTION") to purchase, subject to the terms hereof, up to that number of shares of common stock, no par value per share ("COMMON STOCK"), of the Company (the "TOP-UP OPTION SHARES") equal to the lowest number of shares of Common Stock that, when added to the number of shares of Common Stock owned by Acquisition Corp. at the time of such exercise, shall constitute one share more than 90% of the shares of Common Stock on a Fully-Diluted Basis (assuming the issuance of the Top-Up Option Shares) at a purchase price per Top-Up Option Share equal to the Offer Price; PROVIDED, HOWEVER, that the Top-Up Option shall not be exercisable unless immediately after such exercise Acquisition Corp. would own more than 90% of the shares of Common Stock then outstanding and in no event shall Acquisition Corp. have the right hereunder to purchase shares of Common Stock to the extent (but only to the extent) that the exercise of Acquisition Corp.'s right to purchase shares of Common Stock hereunder would violate the rules or regulations of the Nasdaq National Market, Inc. The Company agrees to provide Acquisition Corp. with information regarding the number of authorized shares of Common Stock available for issuance on an ongoing basis.
The Top-Up Option. Subject to the terms and conditions set forth herein, the Company hereby grants to Purchaser an irrevocable option (the "Top-Up Option") to purchase up to 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 collectively owned by Parent, Purchaser and any other affiliates of Parent immediately following consummation of the Offer, shall constitute at least 90 percent of the shares of Company Common Stock then outstanding on a fully diluted basis (assuming the issuance of the Top-Up Option Shares and the exercise of all Options (as defined in Section 4.2), Warrants and any other rights to acquire Company Common Stock on the date of the Top-Up Exercise Event (as defined in Section 1.3)) at a purchase price per Top-Up Option Share equal to the Per Share Amount.
