Common use of Top-Up Option Clause in Contracts

Top-Up Option. (a) The Company hereby grants to Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1, to purchase at a price per share equal to the Offer Price an aggregate number of newly and validly issued, fully paid and non-assessable shares of Company Common Stock (the “Top-Up Option Shares”) up to that number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent and Purchaser at the time of exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares more than 90% of the shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”); provided, however, that the Top-Up Option may not be exercised (i) to purchase an amount of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option, (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares as set forth in Section 1.4(b).

Top-Up Option. (a) The Company hereby grants to Purchaser Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1Agreement, to purchase at a price per share equal to the Offer Price an aggregate paid in the Offer that number of newly and validly issued, fully paid and non-assessable shares of Company Common Stock issued Shares (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Common Stock Shares that, when added to the number of shares of Company Common Stock Shares directly or indirectly owned by Parent and Purchaser or Sub at the time of exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares one share more than ninety percent (90% %) of the shares Shares outstanding immediately after the issuance of Company Common Stock then the Top-Up Shares (determined on a fully diluted basis); provided, however, that (i) the Top-Up Option shall not be exercisable for a number of Shares in excess of the Shares authorized and unissued at the time of exercise of the Top-Up Option and (ii) the Top-Up Option may not be exercised unless, (x) following the Acceptance Time or after a subsequent offering period, eighty percent (80%) or more of the Shares shall be directly or indirectly owned by Parent or Sub and (y) after the giving effect to the exercise of the Top-Up Option, Parent, Sub and any wholly owned subsidiary of Parent or Sub would own in the aggregate one share more than ninety percent (90%) of the number of outstanding Shares (after giving effect to the issuance of the Top-Up Option Shares, and but excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee). The Top-Up Option shall be exercisable only once at any time following the Acceptance Time and prior to the earlier to occur of (A) the Effective Time and (B) the “Short-Form Threshold”)termination of this Agreement in accordance with its terms; provided, however, that so long as the Top-Up Option Minimum Condition is satisfied upon the Acceptance Time, Parent and Sub may not be exercised (i) to purchase an amount of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option, (ii) if prohibited by applicable Lawon a second occasion, on the same terms and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares as conditions set forth in this Section 1.4(b)1.10 in the event the Shares that were subject to guarantees of delivery were not properly tendered in the Offer.

Top-Up Option. (a) The Company hereby grants to Purchaser Parent an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1Agreement, to purchase from the Company, at a price per share equal to the Offer Price an aggregate paid in the Offer, up to that number of newly and validly issued, fully paid and non-assessable issued shares of Company Common Stock (the “Top-Up Option Shares”) up to that number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent and Purchaser (or any of its Subsidiaries) at the time of exercise of the Top-Up Option, shall would constitute ten thousand one (10,0001) shares share more than ninety percent (90% %) of the shares of Company Common Stock then outstanding on a fully-diluted basis (“on a fully-diluted basis” meaning the number of shares of Company Common Stock then issued and outstanding, plus all shares of Company Common Stock that the Company may be required to issue as of such date pursuant to options (whether or not then vested or exercisable), rights, convertible or exchangeable securities (only to the extent then convertible or exchangeable into shares of Company Common Stock) or similar obligations then outstanding, and after giving effect to the issuance of the Top-Up Option Shares, and but excluding from the calculation Parent’s (and any of the number of shares of Company Common Stock Parent and Purchaser then ownits Subsidiaries’) ownership, but not from the calculation of then-outstanding shares of Company Common Stock, Shares shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Short Form Threshold”); provided, however, that . Parent may assign the Top-Up Option may not be exercised (i) and its respective rights and obligations pursuant to purchase an amount this Section 1.3, in its sole discretion, to any of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option, (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares as set forth in Section 1.4(b)its Subsidiaries.

Top-Up Option. (a) The Company hereby grants to Purchaser Parent and/or Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1Agreement, to purchase from the Company, at a price per share equal to the Offer Price an aggregate paid in the Offer, up to that number of newly and validly issued, fully paid and non-assessable issued shares of Company Common Stock (the “Top-Up Option Shares”) up to that number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent and Purchaser (or any of its Subsidiaries) or Merger Sub at the time of exercise of the Top-Up Option, shall would constitute ten thousand one (10,0001) shares share more than ninety percent (90% %) of the shares of Company Common Stock then outstanding on a fully-diluted basis (“on a fully-diluted basis” meaning the number of shares of Company Common Stock then issued and outstanding, plus all shares of Company Common Stock that the Company may be required to issue as of such date pursuant to options (whether or not then vested or exercisable), rights, convertible or exchangeable securities (only to the extent then convertible or exchangeable into shares of Company Common Stock) or similar obligations then outstanding, and after giving effect to the issuance of the Top-Up Option Shares, and but excluding from the calculation Parent’s (and any of the number of shares of Company Common Stock Parent its Subsidiaries’) and Purchaser then ownMerger Sub’s ownership, but not from the calculation of then-outstanding shares of Company Common Stock, Shares shares of Company Common Stock tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Short Form Threshold”); provided, however, that . Parent may assign the Top-Up Option may not be exercised (i) and its rights and obligations pursuant to purchase an amount this Section 1.3, in its sole discretion, to any of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Optionits Subsidiaries, (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares as set forth in Section 1.4(b)including Merger Sub.

Top-Up Option. (a) The Company hereby grants to Purchaser an irrevocable option (the “Top-Up Option”), exercisable only once and only upon the terms and subject to the conditions set forth in this Section 1.4 1.4, and only for so long as this Agreement has not been terminated pursuant to Section 7.1, to purchase at a price per share equal to the Offer Price an aggregate number of newly and validly issued, fully paid and non-assessable nonassessable shares of Company Common Stock (the “Top-Up Option Shares”) equal to up to that number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent and Purchaser at the time of exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares more than 90% of the shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding available authorized and unissued shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”); provided, however, that the Top-Up Option may shall not be deemed to be exercised (i) to purchase an amount of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up OptionOption (treating shares of Company Common Stock issuable pursuant to all then-outstanding stock options, restricted stock units and any other rights to acquire Company Common Stock as if such shares were outstanding), (ii) if prohibited unless immediately after such exercise and the issuance of the Top-Up Option Shares, Purchaser and Parent shall, when added to the shares of Company Common Stock owned by applicable LawPurchaser and Parent, own at least 90% of the shares of the Company Common Stock outstanding (excluding from the calculation of the number of shares of Company Common Stock Purchaser and Parent then owns, but not from the calculation of then-outstanding shares of Company Common Stock, the Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) immediately after the Acceptance Time (the “Short-Form Threshold”), (iii) unless the Acceptance Time shall have occurred, (iv) unless Purchaser irrevocably commits upon acquisition of the Top-Up Shares to immediately effect the Merger pursuant to Section 2.3 and (v) if the exercise of the Top-Up Option, the issuance and delivery of the Top-Up Option Shares and compliance with this Section 1.4 shall be prohibited by any outstanding order or Law (excluding any rules of Nasdaq that require stockholder approval). Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares as set forth in Section 1.4(b).

Top-Up Option. (a) The Company Seller hereby grants to the Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.11.4, to purchase at a price per share equal to the Offer Price an aggregate paid in the Offer up to that number of newly and validly issued, fully paid and non-assessable issued shares of Company Seller Common Stock (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Seller Common Stock that, when added to the number of shares of Company Seller Common Stock directly or indirectly owned by the Parent and or the Purchaser at the time of exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares one share more than 90% of the shares of Company Seller Common Stock then outstanding (immediately after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation Shares (determined on a “fully diluted basis” (which assumes conversion or exercise of all derivative securities regardless of the number of shares of Company Common Stock Parent conversion or exercise price, the vesting schedule or other terms and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”conditions thereof)); provided, however, that (i) the Top-Up Option may shall not be exercised (i) to purchase an amount exercisable for a number of Top-Up Option Shares shares of Seller Common Stock in excess of the number of shares of Company Seller Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option, Option and (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares as set forth may not be exercised unless, following the time of acceptance by the Purchaser of shares of Seller Common Stock tendered in Section 1.4(b)the Offer or after a subsequent offering period, eighty-five percent (85%) or more of the shares of Seller Common Stock shall be directly or indirectly owned by the Parent or the Purchaser. The Top-Up Option shall be exercisable once at any time following the Acceptance Date and prior to the earlier to occur of (a) the Effective Time and (b) the termination of this Agreement in accordance with its terms.

Top-Up Option. (ai) The Company hereby grants to Purchaser Parent an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1herein, to purchase purchase, at a price per share equal to the Offer Price an aggregate Price, that number of newly and validly issued, fully paid and non-assessable shares of Company Common Stock (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent and Purchaser its subsidiaries and affiliates at the time of exercise of the Top-Up Optionsuch exercise, shall constitute ten thousand (10,000) shares more than 90% of the shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”); provided, however, that (x) the Top-Up Option may shall not be exercised exercisable unless, (iA) immediately prior to purchase an amount of Top-Up Option such exercise, Merger Sub and Parent collectively hold Company Shares in excess of 80% of the number Company Shares then outstanding and (B) immediately after such exercise and the issuance of shares of Company Common Stock authorized and unissued pursuant thereto, the Short Form Threshold would be reached (treating shares owned by assuming the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option, Option Shares); (iiy) if prohibited by applicable Law, and (iii) unless the Acceptance Time that in no event shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares be exercisable for a number of shares of Common stock in excess of the Company’s total authorized and unissued shares of Common Stock; and (z) in no event shall the Top-Up Option be exercisable for more than an aggregate number of shares of Common Stock that is equal to 19.9% of the shares of Common Stock issued and outstanding as set forth in Section 1.4(bof the date hereof (or such greater amount as may be issuable under Rule 4350(i) of the Nasdaq Marketplace Rules without the approval of the Company’s stockholders). Neither Parent nor Merger Sub may transfer the Top-Up Option to any other Person, other than a wholly-owned direct or indirect subsidiary of the Parent, without the prior written consent of the Company.

Top-Up Option. (a) The Company hereby grants to Purchaser Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.11.10, to purchase at a price per share equal to the Offer Price an aggregate paid in the Offer up to that number of newly and validly issued, fully paid and non-assessable issued shares of Company Common Stock (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock directly or indirectly owned by the Parent and Purchaser or the Sub at the time of exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares one share more than 90% of the shares of Company Common Stock then outstanding (immediately after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation Shares (determined on a “fully diluted basis” (which assumes conversion or exercise of all derivative securities regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof)); provided, however, that (i) the Top-Up Option shall not be exercisable for a number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”); provided, however, that the Top-Up Option may not be exercised (i) to purchase an amount of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option, Option and (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option Shares as set forth may not be exercised unless, following the time of acceptance by the Sub of shares of Company Common Stock tendered in Section 1.4(b)the Offer or after a subsequent offering period, eighty-five percent (85%) or more of the shares of Company Common Stock shall be directly or indirectly owned by the Parent or the Sub. The Top-Up Option shall be exercisable once at any time following the Acceptance Date and prior to the earlier to occur of (a) the Effective Time and (b) the termination of this Agreement in accordance with its terms.

Top-Up Option. (a) The Subject to the number of Shares that have been accepted for payment pursuant to the Offer (after giving effect to any proper withdrawal of Shares prior to the Expiration Date but without giving effect to Shares issuable upon the exercise of the Top-Up Option), together with (x) the number of Shares, if any, then owned of record by Parent or Purchaser or with respect to which Parent or Purchaser otherwise has, directly or indirectly, sole voting power, and (y) the number of shares of Company Common Stock that are issuable upon exercise of Options, that are held in trust pursuant to the Company's Director Stock Unit Program or that constitute restricted shares, in each case whose holders have executed the Stockholders’ Agreement, representing at least eighty percent (80%) but less than ninety percent (90%) of all outstanding Shares (determined on a Fully Diluted Basis), the Company hereby grants to Purchaser an irrevocable option (the “Top-Up Option”), exercisable only once upon the terms and subject to the other conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1herein, to purchase at a price per share equal to the Offer Price an aggregate number of newly and validly issued, fully paid and non-assessable shares of Company Common Stock Shares (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Common Stock Shares that, when added to the number of Shares owned by Parent, Purchaser and their Affiliates at the time of such exercise and the number of shares of Company Common Stock owned by Parent and Purchaser at the time of that are issuable upon exercise of Options, that are held in trust pursuant to the Top-Up OptionCompany's Director Stock Unit Program or that constitute restricted shares, in each case whose holders have executed the Stockholders’ Agreement, shall constitute ten thousand (10,000) shares one Share more than ninety percent (90% %) of the shares of Company Common Stock then outstanding Shares (after giving effect to the issuance of the Top-Up Option Shares) issued and outstanding, and excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) determined on a Fully Diluted Basis (the “Short-Short Form Threshold”); provided, however, that in no event shall the Top-Up Option may not be exercised (i) to purchase an amount exercisable for a number of Top-Up Option Shares in excess of the number of shares authorized but unissued Shares as of Company Common Stock authorized and unissued (treating shares owned by immediately prior to the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up OptionShares; provided, (ii) if prohibited by applicable Lawfurther, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for that the Top-Up Option Shares shall terminate upon the earlier of: (x) the fifth (5th) Business Day after the later of (1) the Expiration Date and (2) the expiration of any “subsequent offering period” as set forth described in Section 1.4(b)1.1(f) above and (y) the termination of this Agreement in accordance with its terms.

Top-Up Option. (a) The Subject to the immediately succeeding sentence, the Company hereby grants to Purchaser Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.11.2, to purchase from the Company, at a price per share equal to the Common Offer Price an aggregate Price, that number of newly and validly issued, fully paid and non-assessable shares of Company Common Stock Shares (the “Top-Up Option Shares”) up to that number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock Shares owned by Parent and Purchaser Merger Sub at the time of exercise of the Top-Up Option, shall constitute ten thousand Exercise Time (10,000) shares more than 90% of including Common Shares validly tendered into the shares of Company Common Stock then outstanding Offer and not validly withdrawn (after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company including any Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered received by the depository for the Offer in full settlement or satisfaction of such guarantee)), would represent at least ninety percent (90%) (of the “ShortCommon Shares outstanding immediately after giving effect to the issuance of the Top-Form Threshold”); provided, however, that Up Shares. Merger Sub shall exercise the Top-Up Option may not be exercised as promptly as practicable after the Offer Acceptance Time (ithe date and time of such exercise, the “Top-Up Exercise Time”) to purchase an amount of if, but shall only exercise the Top-Up Option if, (i) a Triggering Event shall have occurred, (ii) the Offer Acceptance Time shall have occurred, (iii) the Minimum Condition has been satisfied, and (iv) Merger Sub shall not hold Common Shares (including Common Shares validly tendered into the Offer and not validly withdrawn (but not including any Common Shares tendered pursuant to guaranteed delivery procedures that have not yet been received by the depository for the Offer in excess full settlement or satisfaction of such guarantee)) representing at least ninety percent (90%) of the number of shares of Company Common Stock authorized and unissued (treating shares owned by Shares then outstanding. On the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise day of the Top-Up OptionExercise Time, (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time Merger Sub shall have occurred. Purchaser shall pay give the Company written notice specifying the aggregate purchase price required number of Common Shares directly or indirectly owned by Merger Sub at the time of such notice (including Common Shares validly tendered into the Offer and not validly withdrawn (but not including any Common Shares tendered pursuant to be paid guaranteed delivery procedures that have not yet been received by the depository for the Top-Up Option Shares as set forth Offer in Section 1.4(bfull settlement or satisfaction of such guarantee).) and the number of Top-

Top-Up Option. (a) The Company hereby grants to Purchaser Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.11.04, to purchase purchase, at a price per share equal to the Offer Price an aggregate paid in the Offer, up to a number of newly and validly issued, fully paid and non-assessable issued shares of Company Common Stock (the “Top-Up Option Shares”) up which is equal to that the number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent, Merger Sub and any direct or indirect wholly owned subsidiary of Parent (other than treasury shares or shares in trust accounts, managed accounts and Purchaser at the time like, or otherwise held in a fiduciary or agency capacity for the benefit of customers or clients) immediately prior to the exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares one share more than 90% eighty percent (80%) of the shares of Company Common Stock outstanding immediately after the issuance of the Top-Up Shares on a fully diluted basis (meaning, for this purpose, assuming the conversion, exchange or exercise of all then-outstanding warrants, options, securities, rights or other instruments convertible or exchangeable into, or exercisable for, shares of Company Common Stock, whether or not then convertible, exchangeable or exercisable, regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) but not less than one share more than eighty percent (80%) of the number of shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Shares); provided, however, that (i) the Top-Up Option Shares, and excluding from the calculation of the shall not be exercisable for a number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”); provided, however, that the Top-Up Option may not be exercised (i) to purchase an amount of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by or held in the treasury of the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up OptionOption (giving effect to the shares of Company Common Stock issuable pursuant to all then-outstanding stock options, restricted stock, performance shares and any other rights to acquire Company Common Stock as if such shares were outstanding) and (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the Top-Up Option shall not be exercisable if either the exercise of the Top-Up Option and the issuance and delivery of the Top-Up Shares as set forth shall be prohibited by any applicable law. The Top-Up Option may be exercised in Section 1.4(b)whole or in part, at any time following the Offer Closing and prior to the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement in accordance with its terms.

Top-Up Option. (a) The Company hereby grants to Purchaser Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1herein, to purchase at a price per share equal to the Offer Price an aggregate number of newly and validly issued, fully paid and non-assessable shares of Company Common Stock Shares (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Common Stock Shares that, when added to the number of shares of Company Common Stock Shares owned by Parent Parent, Merger Sub and Purchaser their Affiliates at the time of such exercise of (after giving effect to the Top-Up OptionOffer Closing), shall constitute ten thousand (10,000) shares one Share more than 90% of the shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”)on a fully diluted basis; provided, however, that the Top-Up Option may shall not be exercised exercisable to the extent (i) to purchase an amount of Top-Up Option Shares in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of Shares issuable upon exercise of the Top-Up OptionOption would exceed the number of authorized but unissued Shares or Shares held in the treasury of the Company as of immediately prior to the issuance of the Top-Up Shares (giving effect to Shares reserved for issuance under all outstanding stock options, restricted equity and any other rights to acquire the Shares as if such Shares were outstanding) or (ii) if prohibited by any other provision of applicable LawLaw or judgment, and (iii) unless injunction order or decree shall prohibit the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for exercise of the Top-Up Option or delivery of the Top-Up Shares; provided, further, that the Top-Up Option shall terminate upon the termination of this Agreement in accordance with its terms. The Top-Up Option shall not be exercisable until such time as Merger Sub shall have accepted for payment the Shares as tendered pursuant to the Offer, and in no event shall the Top-Up Option be exercisable (A) if the Minimum Tender Condition shall have been waived, (B) more than once or (C) unless, immediately after such exercise and the issuance of Shares pursuant thereto, and accounting for the limitations set forth in Section 1.4(b)herein, Parent and Merger Sub would hold one Share more than 90% of the outstanding Shares on a fully-diluted basis.

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser Acquisition Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.12.4, to purchase at a price per share equal to the Offer Price an aggregate that number of newly authorized and validly issued, fully paid and non-assessable shares of unissued Company Common Stock Shares (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Common Stock Shares that, when added to the number of shares of Company Common Stock Shares beneficially owned by Parent and Purchaser and/or Acquisition Sub at the time of exercise of the Top-Up Optionsuch exercise, shall constitute ten thousand (10,000) shares 100 Company Shares more than 90% of the shares sum of the following: (A) the total number of Company Common Stock then Shares outstanding immediately after the issuance of the Top-Up Option Shares plus (after giving effect B) the total number of Company Shares that are issuable pursuant to the Company Warrants outstanding at such time (including any such Company Warrants that have been conditionally exercised prior to such time) (the “Short-Form Threshold”) (assuming the issuance of the Top-Up Option Shares) at a price per share equal to the Offer Price. Notwithstanding anything to the contrary set forth in this Agreement, and excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”); provided, however, that the Top-Up Option may shall not be exercised exercisable (i) if the Merger can be effected pursuant to purchase an amount Section 251(h) of Topthe DGCL; (ii) unless immediately after such exercise and the issuance of Company Shares pursuant thereto, Acquisition Sub would own more than the Short-Up Option Form Threshold; (iii) for a number of Company Shares in excess of the number of shares of Company Common Stock Company’s then authorized and unissued Company Shares (treating shares owned by any Company Shares held in the treasury of the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at (iv) if any applicable Law or any applicable Order shall prohibit the time of exercise of the Top-Up Option, (ii) if prohibited by applicable Law, and (iii) unless Option or the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for delivery of the Top-Up Option Shares as set forth in Section 1.4(b)Shares.

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser an irrevocable option (the “Top-Up Option”), exercisable in Purchaser’s discretion, but only upon after the terms acceptance by Purchaser of, and subject to payment for, Shares tendered in the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1Offer, to purchase at (for cash or a price per share equal to the Offer Price an aggregate note payable) that number (but not less than that number) of newly and validly issued, fully paid and non-assessable shares of Company Common Stock Shares (the “Top-Up Option Shares”) up equal to that the lesser of (i) the lowest number of shares of Company Common Stock Shares that, when added to the number of shares of Company Common Stock Shares owned by Parent and or Purchaser at the time of exercise such exercise, will constitute one share more than ninety percent (90%) of the Top-Up Option, shall constitute ten thousand (10,000) shares more than 90% of the shares of Company Common Stock total Shares then outstanding on a Fully-Diluted Basis (after giving effect to assuming the issuance of the Top-Up Option Shares, ) at a price per Share equal to the Offer Price and excluding from (ii) the calculation aggregate number of Shares held as treasury shares by the Company and the number of shares Shares that the Company is authorized to issue under its certificate of Company Common Stock Parent incorporation but which (A) are not issued and Purchaser then ownoutstanding, but (B) are not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered reserved for issuance pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction the Company Stock Plans and (C) are issuable without the approval of such guarantee) (the “Short-Form Threshold”)Company’s stockholders; provided, however, that (1) the Top-Up Option will be exercisable only once and only on or prior to the fifth (5th) Business Day after the later of the Expiration Date or the expiration date of any subsequent offering period and (2) the Top-Up Option may not be exercised if any provision of applicable Law (iincluding the Nasdaq rules) to purchase an amount or any judgment, injunction, order or decree of any Governmental Entity prohibits, or requires any action, consent, approval, authorization or permit of, action by, or filing with or notification to, any Governmental Entity or the Company’s stockholders in connection with the exercise of the Top-Up Option or the delivery of the Top-Up Shares in excess respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable. Purchaser will, concurrently with the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (ii) if prohibited by applicable Lawand Purchaser will, and (iiiParent will cause Purchaser to, as promptly as practicable after such exercise) unless consummate the Acceptance Time shall have occurred. Purchaser shall pay Merger in accordance with Section 253 of the Company the aggregate purchase price required to be paid for the Top-Up Option Shares DGCL as set forth in contemplated by Section 1.4(b)2.7.

Top-Up Option. (a) The Company hereby grants to Purchaser Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.11.4, to purchase at a price per share equal to the Offer Price an aggregate that number of newly and validly issued, fully paid and non-assessable shares of Company Common Stock issued Shares (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Common Stock Shares that, when added to the number of shares of Company Common Stock Shares owned by Parent and Purchaser its Subsidiaries at the time of exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares result in Parent and its Subsidiaries owning one share more than ninety percent (90% %) of the shares of Company Common Stock then Shares outstanding (immediately after giving effect to the issuance of the Top-Up Option SharesShares on a fully diluted basis, and excluding from the calculation which assumes conversion or exercise of all derivative securities regardless of the number of shares of Company Common Stock Parent conversion or exercise price, the vesting schedule or other terms and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) conditions thereof (the “Short-Short Form Threshold”); provided, however, that (i) the Top-Up Option may shall not be exercised (i) to purchase an amount exercisable for a number of Top-Up Option Shares in excess of the number of shares of Company Common Stock Shares authorized and unissued (treating shares owned by or held in the treasury of the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option, Option (giving effect to the Shares issuable pursuant to all then-outstanding Company Stock Options and any other rights to acquire Company Common Stock as if such Shares were outstanding) and (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for exercise of the Top-Up Option and the issuance and delivery of the Top-Up Shares shall not, in the reasonable judgment of Parent and the Company, be prohibited by any Law or Order. The Top-Up Option shall be exercisable only once, and only in whole but not in part, and subject to the provisions in the immediately preceding sentence, Parent agrees to cause Merger Sub to, and Merger Sub shall, exercise the Top-Up Option promptly (but in no event later than one (1) Business Day) after the later of (x) the Offer Closing and (y) the expiration of any permitted subsequent offering period, as set forth applicable, if the number of Shares owned by Merger Sub at such time does not meet the Short Form Threshold and if and only if after giving effect to the exercise of the Top-Up Option, Merger Sub would own in Section 1.4(b)the aggregate Shares sufficient to meet the Short Form Threshold. The Top-Up Option shall terminate with and prior to the earlier to occur of (A) the Effective Time and (B) the termination of this Agreement in accordance with its terms.

Top-Up Option. (a) The Company hereby grants to Purchaser Sub an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1purchase, to purchase at a price per share Share equal to the Offer Price an aggregate Price, such number of newly and validly issued, fully paid and non-assessable shares of Company Common Stock Shares (the “Top-Up Option Shares”) up to that number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock Shares owned by Parent and Purchaser at Sub and any other wholly-owned Subsidiary of Parent immediately prior to the time of exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares constitutes at least one share more than 90% of the shares of Company Common Stock then outstanding (Adjusted Outstanding Share Number immediately after giving effect to the issuance of the Top-Up Option Shares. The Top-Up Option shall only be exercisable once, in whole and excluding from not in part, at or following the calculation of Offer Closing at any time during the number of shares of Company Common Stock Parent and Purchaser then ownfive (5) Business Day period following the Offer Closing (or, if applicable, one or more subsequent offering periods), but not from in any event prior to the calculation earlier to occur of then-outstanding shares (i) the Effective Time and (ii) the termination of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered this Agreement in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”)accordance with its terms; provided, however, that the Top-Up Option may shall not be exercised exercisable unless (iA) to purchase an amount immediately after the exercise of the Top-Up Option and the issuance of Top-Up Option Shares (and not before), the Short Form Threshold would be reached (assuming the issuance of the Top-Up Option Shares), (B) no Governmental Entity of competent jurisdiction shall have issued or granted any order, writ, injunction, judgment or decree prohibiting the exercise of the Top-Up Option or the delivery of the Top-Up Option Shares in respect of such exercise; and (C) the issuance of the Top-Up Option will not cause the Company to have shares of Company Common Stock outstanding in excess of the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option; provided, (ii) if prohibited by applicable Lawfurther, that Sub shall, and (iii) unless Parent shall cause Sub to, exercise the Acceptance Time Top-Up Option on the same day as the Offer Closing if possible and if that is not possible as soon thereafter as possible, in each case in accordance with this Section 1.03(a). The parties shall have occurred. Purchaser shall pay cooperate to ensure that the Company the aggregate purchase price required to be paid for issuance of the Top-Up Option Shares as set forth is accomplished consistent with applicable Law, including compliance with an applicable exemption from registration of the Top-Up Option Shares under the Securities Act. The Top-Up Option Shares have been duly authorized by the Company Board and, when issued in Section 1.4(b)accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable.

Top-Up Option. (a) The Immediately prior to the Offer Closing, Parent and the Company shall confer and mutually determine, in good faith, after consulting with their respective outside legal counsel, whether the Merger remains eligible to be effected pursuant to Section 251(h) of the DGCL. Unless Parent and the Company determine that the Merger is ineligible to be effected pursuant to Section 251(h) of the DGCL (the “251(h) Inapplicable Determination”), the Merger shall be effected in accordance with Section 251(h) of the DGCL. If prior to the Effective Time, Parent and the Company make a 251(h) Inapplicable Determination then, contingent and effective upon the occurrence of the 251(h) Inapplicable Determination and the Offer Closing, the Company hereby grants to Purchaser Acquisition Sub an irrevocable option (the “Top-Up Option”), exercisable only upon on the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.11.3, to purchase at a price per share equal to the Offer Price an aggregate that number of newly and validly issued, fully paid and non-assessable issued shares of Company Common Stock (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock directly or indirectly owned by Parent and Purchaser Acquisition Sub at the time of exercise of the Top-Up OptionClosing (after giving effect to the Offer Closing), shall constitute ten thousand one more share than ninety percent (10,00090%) shares more than 90% of the shares of Company Common Stock that are then issued and outstanding (immediately after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation of the number of shares of Company Common Stock Parent and Purchaser then own, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (the “Short-Form Threshold”)on a fully diluted basis; provided, however, that (i) the Top-Up Option may not be exercised (i) to purchase an amount the extent that the number of Top-Up Option Shares in excess of the 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 otherwise reserved or committed for issuance at the time of exercise of the Top-Up Option, Option and (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for issuance of the Top-Up Option Shares as set forth shall not require approval of the Company's stockholders under applicable Law (including the rules of the NASDAQ). The Top-Up Option shall be exercisable only once, in Section 1.4(b)whole but not in part. 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 applicable Law or Order shall be in effect that has the effect of enjoining or otherwise prohibiting the exercise of the Top-Up Option or the issuance and delivery of the Top-Up Option Shares.

Top-Up Option. (a) The Company hereby grants to Purchaser Parent and Merger Sub an irrevocable option (the “Top-Up Option”), exercisable only upon subject to the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.1hereof, to purchase at a price per share equal to from the Offer Price an aggregate Company that number of newly and validly issued, fully paid and non-assessable shares of Company Common Stock (the “Top-Up Option Shares”) up equal to that the lowest number of shares of Company Common Stock that, when added to the number of shares of Company Common Stock owned by Parent and Purchaser its Subsidiaries (including Merger Sub) at the time of exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares one share of Company Common Stock more than ninety percent (90% %) of the number of shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares, and excluding from the calculation of the number of shares of Company Common Stock then owned by Parent and Purchaser then ownMerger Sub, but not from the calculation of then-outstanding shares of Company Common Stock, Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) (), at an exercise price per Top-Up Share equal to the “Short-Form Threshold”)Offer Price; provided, howeverthat Merger Sub may, that 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, only if (i) the exercise of the Top-Up Option may and the issuance and delivery of the Top-Up Shares shall not be exercised prohibited by any Law or Restraint, (iii) to purchase an amount of the Top-Up Option Shares in excess of is exercisable for not more than the number of shares of Company Common Stock that are authorized and but unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance issuance) at the time of exercise of the Top-Up Option, (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for Merger Sub irrevocably commits upon exercise of the Top-Up Option Shares as set forth in to promptly effect a short-form merger pursuant to Section 1.4(b)1.5 hereof following such exercise and is permitted to do so under applicable Laws.

Top-Up Option. (a) The Company hereby grants to Purchaser an irrevocable option (the “Top-Up Option”), exercisable only upon the terms and subject to the conditions set forth in this Section 1.4 and only for so long as this Agreement has not been terminated pursuant to Section 7.11.3, to purchase from the Company at a price per share Share equal to the Offer Price an aggregate up to the number of newly and validly issued, fully paid and nonnewly-assessable shares issued Shares equal to the lesser of Company Common Stock (i) the “Top-Up Option Shares”) up to that number of shares of Company Common Stock Shares that, when added to the number of shares of Company Common Stock Shares owned by Parent and Purchaser each of the other Bayer Entities at the time of exercise of the Top-Up Option, shall constitute ten thousand (10,000) shares constitutes one Share more than 90% of the shares of Company Common Stock total Shares then outstanding (determined on a fully-diluted basis (x) after giving effect to the issuance of the Shares pursuant to the exercise of the Top-Up Option Option, (y) including all Shares which the Company may be required to issue upon the vesting (including vesting solely as a result of the consummation of the Offer), conversion, settlement or exercise of all then outstanding warrants, options, benefit plans, obligations or securities convertible or exchangeable into Shares, or other rights to acquire or be issued Shares (including all then outstanding Company Options, Company Restricted Stock Units, Company Stock Appreciation Rights and Company Convertible Notes (after giving effect to any Make-Whole Fundamental Change (as defined in the Indenture), assuming the effectiveness thereof occurred on the Expiration Date)), regardless of the conversion or exercise price or other terms and conditions thereof and (z) excluding from the calculation of the number of shares of Company Common Stock Parent Parent’s and Purchaser then ownits Subsidiaries’ ownership, but not from the calculation number of then-outstanding shares of Company Common StockShares, Shares tendered pursuant to guaranteed delivery procedures that have not yet then been delivered in settlement or satisfaction of such guarantee), and (ii) (the “Short-Form Threshold”); provided, however, aggregate number of Shares that the Top-Up Option may Company is authorized to issue under the Company Certificate of Incorporation but that are not be exercised (i) to purchase an amount of Top-Up Option Shares in excess issued and outstanding or reserved for issuance upon the conversion of the number of shares of Company Common Stock authorized and unissued (treating shares owned by the Company as treasury stock as unissued) and not otherwise reserved or committed for issuance Convertible Notes at the time of exercise of the Top-Up Option, (ii) if prohibited by applicable Law, and (iii) unless the Acceptance Time shall have occurred. Purchaser shall pay the Company the aggregate purchase price required to be paid for the The Top-Up Option Shares as set forth shall expire upon the earlier to occur of (i) the Effective Time and (ii) termination of this Agreement in Section 1.4(b)accordance with its terms.