Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) 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 owned by the Parent and the Purchaser immediately prior to the time of exercise of the Top-Up Option, shall constitute one Share more than 90% of the Shares then outstanding (assuming the issuance of the Top-Up Option Shares) at a price per Share equal to the Share Offer Price; provided, however, that the Top-Up Option shall not be exercisable 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 in excess of the Company’s then authorized but unissued Shares (giving effect to such Shares reserved for issuance pursuant to outstanding Options and Warrants as though such Shares were outstanding.)
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Main Street Restaurant Group, Inc.), Agreement and Plan of Merger (Main Street Restaurant Group, Inc.), Agreement and Plan of Merger (Main Street Acquisition CORP)
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 the Parent and the Parent, Purchaser immediately prior to or their affiliates at the time of exercise of the Top-Up Optionsuch exercise, 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 unless immediately after such exercise if 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 in excess subject thereto exceeds the number of authorized Shares available for issuance under the Company’s then authorized but unissued Shares (giving effect to such Shares reserved for issuance pursuant to outstanding Options and Warrants certificate of incorporation, as though such Shares were outstandingamended.)
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Invitrogen Corp), Agreement and Plan of Merger (Invitrogen Corp), Agreement and Plan of Merger (Informax Inc)
Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) 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 the Parent and the Purchaser immediately prior to at the time of exercise of the Top-Up Optionsuch exercise, shall constitute one (1) Share more than ninety percent (90% %) of the Shares then outstanding (assuming the issuance of the outstanding, on a fully diluted basis, at a price per Top-Up Option Shares) at a price per Share equal to the Share Offer PriceConsideration, payable (at the Purchaser’s option) in shares of Purchaser Common Stock or cash in an amount equal to the value of the Offer Consideration; provided, however, that the Top-Up Option shall not be exercisable exercisable, unless immediately after such exercise the Purchaser would own more than ninety percent (90% %) of the Shares then outstanding, on a fully diluted basis; provided, further, that in no event shall the Top-Up Option shall not be exercisable for to the extent doing so would cause the merger not to qualify as a number reorganization within the meaning of Shares in excess Section 368(a) of the Company’s then authorized but unissued Shares (giving effect to such Shares reserved for issuance pursuant to outstanding Options and Warrants as though such Shares were outstandingCode.)
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Point 360), Agreement and Plan of Merger and Reorganization (DG FastChannel, Inc), Agreement and Plan of Merger and Reorganization (New 360)
Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “Top-Up Option”) to purchase up to that number of newly issued Company Shares (the “Top-Up Option Shares”) equal to the lowest number of Company Shares that, when added to the number of Company Shares collectively owned by the Parent and the Purchaser immediately prior to or Merger Sub at the time of exercise of the Top-Up Optionexercise, shall constitute one Company Share more than ninety percent (90% %) of the Company Shares then outstanding (assuming determined on a fully diluted basis after giving effect to the issuance of the Top-Up Option Shares) ), at a purchase price per Top-Up Option Share equal to the Per Share Offer Price; providedAmount. Notwithstanding the foregoing provisions of this Section 2.3(a), however, that the Top-Up Option shall not be exercisable unless immediately after such if the aggregate number of (i) Company Shares issuable upon 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 Option, plus (ii) Company Shares then outstanding, plus (iii) Company Shares issuable upon exercise of all options and other rights to purchase Company Shares, would exceed the number of Shares in excess of the Company’s then authorized but unissued Shares (giving effect to such Shares reserved for issuance pursuant to outstanding Options and Warrants as though such Shares were outstandingCompany Shares.)
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Blackbaud Inc), Agreement and Plan of Merger (Kintera Inc)
Top-Up Option. (a) The Company hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”) to purchase from the Company up to 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 the Parent and the Purchaser immediately prior to at the time of exercise of the Top-Up Option, shall constitute constitutes up to one Share more than the number of Shares entitled to cast 90% of the Fully Diluted Shares but not less than one Share more than 90% of the number of Shares then outstanding (assuming after giving effect to the issuance of the Top-Up Option Shares) at for a purchase price per Top-Up Option Share equal to the Share Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise the Purchaser would own more than 90% of the Shares then outstanding; provided, further, that in . In no event shall the Top-Up Option be exercisable for a to the extent the number of Shares in excess issuable upon exercise of the Top-Up Option would exceed the Company’s then authorized but and unissued Shares (giving effect to such Shares reserved for issuance pursuant to outstanding Options and Warrants under the Stock Plans, as though if such Shares were outstanding.). For purposes of this Agreement, “
Appears in 1 contract
Samples: Agreement and Plan of Merger (Caribou Coffee Company, Inc.)
Top-Up Option. (a) The Company hereby grants to the Purchaser Merger Sub an irrevocable option (the “"Top-Up Option”) "), exercisable upon the terms and subject to the conditions set forth in this Section 1.04, 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 directly or indirectly owned by the Parent and the Purchaser immediately prior to at the time of exercise such exercise, constitutes one share more than ninety percent (90%) of the Top-Up Option, shall constitute one Share more than 90% of the Fully Diluted Shares then outstanding (assuming immediately after the issuance of the Top-Up Option Shares) Shares at a price per Share share equal to the Share Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise the Purchaser would own more than 90% of the Shares then outstanding; provided, further, provided that in no event shall the Top-Up Option be exercisable for a to the extent the number of Shares in excess issuable upon exercise of the Top-Up Option would exceed the Company’s 's then authorized but and unissued Shares (giving effect to such Shares reserved for issuance pursuant to under the options then outstanding Options and Warrants under the Company Stock Plans, as though if such Shares were outstanding).)
Appears in 1 contract
