Top-Up Option. (a) Subject to the terms and conditions herein, the Company hereby grants to Parent an irrevocable option (the “Top-Up Option”) to purchase up to that number of shares of the 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, Sub and any of their respective affiliates immediately following consummation of the Offer shall constitute 90% of the shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares) at a purchase price per Top-Up Option Share equal to the Offer Price. Notwithstanding the foregoing provisions of this Section 1.04(a), the Top-Up Option shall not be exercisable if the aggregate number of shares issuable upon exercise of the Top-Up Option, plus the aggregate number of then-outstanding shares of Company Common Stock, plus the aggregate number of shares of Company Common Stock issuable upon exercise of all options and other rights to purchase Company Common Stock, plus the aggregate number of shares reserved for issuance pursuant to the Company Stock Plans (as defined in Section 7.04) would exceed the number of authorized shares of Company Common Stock.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Ruby Merger Corp.), Agreement and Plan of Merger (Ruby Merger Corp.), Agreement and Plan of Merger (Retek Inc)
Top-Up Option. (a) Subject to the terms and conditions herein, the Company hereby grants to Parent Merger Sub an irrevocable option (the “Top-Up Option”) to purchase up to that number of shares of the Company Common Stock Shares (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock Shares that, when added to the number of shares of Company Common Stock Shares collectively owned by Parent, Merger Sub and any of their respective affiliates Parent’s other Subsidiaries immediately following consummation of the Offer shall constitute 90% of the shares of Company Common Stock Shares then outstanding (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 Offer PriceCash Consideration. Notwithstanding the foregoing provisions of this Section 1.04(a), the Top-Up Option shall not be exercisable if the aggregate number of shares Shares issuable upon exercise of the Top-Up Option, plus the aggregate number of then-outstanding shares of Company Common StockShares, plus the aggregate number of shares of Company Common Stock Shares issuable upon exercise of all options and other rights to purchase Company Common StockShares, plus the aggregate number of shares reserved for issuance pursuant to the Company Stock Plans (as defined in Section 7.04) would exceed the number of authorized shares of Company Common StockShares.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Allergan Inc), Agreement and Plan of Merger (Allergan Inc), Agreement and Plan of Merger (Inamed Corp)
Top-Up Option. (a) Subject to the terms and conditions herein, the The Company hereby grants to Parent Merger Sub an irrevocable option (the “Top-Up Option”) to purchase up to that number of shares of the Company Common Stock Shares (the “Top-Up Option Shares”) equal to the lowest number of shares of Company Common Stock Shares that, when added to the number of shares of Company Common Stock Shares collectively owned by ParentParent or Merger Sub at the time of exercise, Sub and any of their respective affiliates immediately following consummation shall constitute one Company Share more than ninety percent (90%) of the Offer shall constitute 90% of the shares of Company Common Stock Shares then outstanding (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 Offer PricePer Share Amount. Notwithstanding the foregoing provisions of this Section 1.04(a2.3(a), the Top-Up Option shall not be exercisable if (i) the Minimum Condition shall have not been met or (ii) the aggregate number of shares (A) Company Shares issuable upon exercise of the Top-Up Option, plus the aggregate number of then-outstanding shares of (B) Company Common StockShares then outstanding, plus the aggregate number of shares of (C) Company Common Stock Shares issuable upon exercise of all options and other rights to purchase Company Common StockShares, plus the aggregate number of shares reserved for issuance pursuant to the Company Stock Plans (as defined in Section 7.04) would exceed the number of authorized shares of Company Common StockShares.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Convio, Inc.), Agreement and Plan of Merger (Blackbaud Inc)
Top-Up Option. (a) Subject to the terms and conditions herein, the The Company hereby grants to Parent Merger Sub an irrevocable option (the “Top-Up Option”) exercisable only in accordance with the terms and conditions set forth in this Section 1.3, to purchase up to that number of shares (but not less than that number) of the 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 owned, directly or indirectly, by Parent, Merger Sub and any or their affiliates at the time of their respective affiliates immediately following consummation of the Offer such exercise, shall constitute 90one share of Company Common Stock more than 80% of the total shares of Company Common Stock then outstanding on a fully-diluted basis (after giving effect to assuming the issuance of the Top-Up Option SharesShares and the exercise of options that are vested or may vest prior to the Merger Outside Date) at a purchase price per Top-Up Option Share equal to the Offer PricePer Share Amount. Notwithstanding the foregoing provisions of this Section 1.04(a1.3(a), the Top-Up Option shall not be exercisable if the aggregate number of shares issuable upon exercise of the Top-Up Option, plus the aggregate number of then-outstanding for shares of Company Common Stock, plus Stock and will terminate on the aggregate Acceptance Date if the number of Top-Up Option Shares exceeds the number of shares of Company Common Stock issuable upon exercise authorized and unissued or held in the treasury of all options and other rights to purchase the Company Common Stock, plus the aggregate number of shares reserved for issuance pursuant (giving effect to the Company Stock Plans (as defined in Section 7.04) would exceed the number of authorized shares of Company Common StockStock issuable pursuant to all then-outstanding Company Stock Options (defined in Section 3.3) and any other rights to acquire shares of Company Common Stock as if such shares were outstanding).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Coleman Cable, Inc.), Agreement and Plan of Merger (Technology Research Corp)
Top-Up Option. (a) Subject to the terms and conditions herein, the The Company hereby irrevocably grants to Parent Merger Sub an irrevocable option (the “Top-Up Option”) ), exercisable only on or after the Appointment Time, to purchase up to that number of shares of the 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 ParentMerger Sub at the time of such exercise, Sub and any of their respective affiliates immediately following consummation of the Offer shall constitute one share more than 90% of the shares of Company Common Stock then outstanding (after giving effect to assuming the issuance of the Top-Up Option SharesShares and the exercise of all outstanding exercisable options to purchase shares of Company Common Stock with an exercise price equal to or less than $17.87) at a purchase price per Top-Up Option Share share equal to the Offer Price. Notwithstanding the foregoing provisions of this Section 1.04(a); provided, however, that the Top-Up Option shall not be exercisable if unless immediately after such exercise and the aggregate number of shares issuable upon exercise of the Top-Up Option, plus the aggregate number of then-outstanding shares of Company Common Stock, plus the aggregate number issuance of shares of Company Common Stock issuable upon exercise pursuant thereto, Merger Sub would own more than 90% of all options and other rights to purchase the shares of Company Common StockStock then outstanding; and provided further, plus however, that in no event shall the aggregate Top-Up Option be exercisable for a number of Top-Up Option Shares (i) in excess of the Company’s then authorized and unissued shares of Company Common Stock (giving effect to shares of Company Common Stock reserved for or issuance pursuant to under the Company Stock Plans as though such shares were outstanding) or (as defined in Section 7.04ii) that would exceed require approval of the number of authorized shares of Company Common StockStockholders under applicable NASDAQ rules.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cognos Inc), Agreement and Plan of Merger (Applix Inc /Ma/)
Top-Up Option. (a) Subject to the terms and conditions herein, the The Company hereby grants to Parent Sub an irrevocable option (the “"Top-Up Option”) "), exercisable only on or after the Determination Time, to purchase up to that number of shares of the 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 ParentSub at the time of such exercise, Sub and any of their respective affiliates immediately following consummation shall constitute one share more than ninety percent (90%) of the Offer shall constitute 90% of the then outstanding shares of Company Common Stock (assuming the issuance of the Top-Up Option Shares), at a price per share equal to the Offer Price; provided, however, that the Top-Up Option shall not be exercisable unless immediately after such exercise Sub would own at least ninety percent (90%) of the then outstanding shares of Company Common Stock (after giving effect to assuming the issuance of the Top-Up Option Shares) and at a purchase price per Top-Up Option Share equal to least ninety percent (90%) of the Offer Price. Notwithstanding the foregoing provisions then outstanding shares of this Section 1.04(a)Company Series D Stock; and provided, further, that in no event shall the Top-Up Option shall not be exercisable if the aggregate for a number of shares issuable upon exercise in excess of the Top-Up Option, plus the aggregate number of then-outstanding shares of Company Common Stock, plus the aggregate number of Company's then authorized but unissued shares of Company Common Stock issuable upon exercise (giving effect to such shares of all options and other rights to purchase Company Common Stock, plus the aggregate number of shares Stock reserved for issuance pursuant to the outstanding Company Employee Stock Plans (Options, Warrants and shares of Company Series D Stock as defined in Section 7.04) would exceed the number of authorized though such shares of Company Common StockStock were outstanding).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (I Stat Corporation /De/), Agreement and Plan of Merger (I Stat Corporation /De/)
Top-Up Option. (a) Subject to the terms and conditions herein, the Company hereby grants to Parent Merger Sub an irrevocable option (the “"Top-Up Option”") to purchase up to that number of shares of the Company Common Stock Shares (the “"Top-Up Option Shares”") equal to the lowest number of shares of Company Common Stock Shares that, when added to the number of shares of Company Common Stock Shares collectively owned by Parent, Merger Sub and any of their respective affiliates Parent's other Subsidiaries immediately following consummation of the Offer shall constitute 90% of the shares of Company Common Stock Shares then outstanding (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 Offer PriceCash Consideration. Notwithstanding the foregoing provisions of this Section 1.04(a), the Top-Up Option shall not be exercisable if the aggregate number of shares Shares issuable upon exercise of the Top-Up Option, plus the aggregate number of then-outstanding shares of Company Common StockShares, plus the aggregate number of shares of Company Common Stock Shares issuable upon exercise of all options and other rights to purchase Company Common StockShares, plus the aggregate number of shares reserved for issuance pursuant to the Company Stock Plans (as defined in Section 7.04) would exceed the number of authorized shares of Company Common StockShares.
Appears in 1 contract
Top-Up Option. (a) Subject to the terms and conditions herein, the Company hereby grants to Parent an irrevocable option (the “Top-Up Option”) to purchase purchase, at a price per share equal to the Offer Price, up to that number of shares of the Company Common Stock (the “Top-Up Option Shares”) equal to the lesser of (i) 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, Merger Sub and any of their respective affiliates Affiliates immediately following consummation of the Offer shall constitute 90% of the shares of Company Common Stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares) at a purchase price per and (ii) an aggregate number of shares of Common Stock that is equal to 19.9% of the shares of Common Stock issued and outstanding immediately prior to the exercise of the Top-Up Option Share equal to the Offer PriceOption. Notwithstanding the foregoing provisions of this Section 1.04(a1.5(a), the Top-Up Option shall not be exercisable if the aggregate number of shares issuable upon exercise of the Top-Up Option, plus the aggregate number of then-outstanding shares of Company Common Stock, plus the aggregate number of shares of Company Common Stock issuable upon exercise of all options and other rights to purchase Company Common Stock, plus the aggregate number of shares reserved for issuance pursuant to the Company Stock Option Plans (as defined in Section 7.04) would exceed the number of authorized shares of Company Common Stock.
Appears in 1 contract
