Common use of Top-Up Option Clause in Contracts

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser an option (the “Top-Up Option”), exercisable only after the acceptance by Purchaser of, and payment for, Shares tendered in the Offer, to purchase that number (but not less than that number) of Shares (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned directly or indirectly by Parent or Purchaser at the time of such exercise, shall constitute one share more than 90% of the total Shares then outstanding (assuming the issuance of the Top-Up Shares) at a price per Share equal to the Offer Price; provided, however, that (i) the Top-Up Option shall be exercisable only once, at such time as Parent and Purchaser, directly or indirectly, own at least 85% of the total number of Shares then outstanding and on or prior to the 20th Business Day after the Expiration Date or the expiration date of any subsequent offering period, (ii) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized and unissued shares of Common Stock (including as authorized and unissued shares of Common Stock, for purposes of this Section 1.5, any Shares held in the treasury of the Company), (iii) Purchaser shall, concurrently with the exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (and Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 2.7, and (iv) the Top-Up Option may not be exercised if any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Entity shall prohibit, or require 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 respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable. (b) Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws. (c) Parent and Purchaser understand that the Shares that Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Purchaser represent and warrant to the Company that Purchaser is, and will be upon exercise of the Top-Up Option, an “accredited investor” (as defined in Rule 501 of Regulation D promulgated under the Securities Act). Purchaser agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise thereof are being and will be acquired for the purpose of investment and not with a view to or for resale in connection with any distribution thereof within the meaning of the Securities Act.

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser Newco an option (the “Top-Up Option”), exercisable only after the acceptance by Purchaser Newco of, and payment for, Shares tendered in the Offer, to purchase that number (but not less than that number) of Shares (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned directly by Parent, Newco and any subsidiaries or indirectly by affiliates of Parent or Purchaser Newco, taken as a whole, at the time of such exercise, shall constitute one share Share more than 90% of the total Shares then outstanding (assuming the issuance of the Top-Up Shares) at a price per Share share equal to the Offer PricePer Share Amount; provided, however, that (i) the Top-Up Option shall be exercisable only once, at such time as Parent and Purchaser, directly or indirectly, own at least 85% of the total number of Shares then outstanding and on or prior to the 20th Business Day after the Expiration Date or the expiration date of any subsequent offering period, (ii) in no event shall the Top-Up Option be exercisable (x) for a number of Shares in excess of the Company’s then authorized and unissued shares of Common Stock Shares (including as authorized and unissued shares of Common StockShares, for purposes of this Section 1.51.4, any Shares held in the treasury of the Company), or (iiiy) Purchaser unless, following the time of acceptance by Newco of Shares tendered in the Offer or after a subsequent offering period, 85% or more of the Shares then outstanding shall be directly or indirectly owned by Parent or Newco, (ii) Newco shall, concurrently with the exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to Newco shall (and Purchaser shall, and Parent shall cause Purchaser Newco to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 2.7this Agreement, and (iviii) the Top-Up Option may not be exercised if any provision of applicable Law law or any judgment, injunction, order or decree of any federal, state, provincial, local and foreign government, governmental, quasi-governmental, supranational, regulatory or administrative authority, agency, commission or any court, tribunal, or judicial or arbitral body (each, a “Governmental Entity Entity”) shall prohibit, or require 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 respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable. (b) Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws. (c) Parent and Purchaser Newco understand that the Shares that Purchaser Newco may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Purchaser Newco represent and warrant to the Company that Purchaser Newco is, and will be upon exercise of the Top-Up Option, an “accredited investor” (as defined in Rule 501 of Regulation D promulgated under the Securities Act). Purchaser Newco agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise thereof are being and will be acquired for the purpose of investment and not with a view to or for resale in connection with any distribution thereof within the meaning of the Securities Act.

Top-Up Option. (ai) The In order to offset the dilutive impact of the issuance of Shares pursuant to the exercise, conversion or exchange of any Company Options, SARs, RSUs, Warrants, Equity Interests or other rights to acquire Shares following the Appointment Time, the Company hereby irrevocably grants to Purchaser an irrevocable option (the “50% Top-Up Option”), exercisable only after upon the acceptance by Purchaser of, terms and payment for, Shares tendered in subject to the Offerconditions set forth herein, to purchase with a Promissory Note, at a price per share equal to the Offer Price, that number (but not less than that number) of Shares shares of Common Stock (the “50% Top-Up Option Shares”) as is equal to the lesser of (x) the lowest number of Shares shares of Common Stock that, when added to the number of Shares shares of Common Stock owned directly or indirectly by Parent or Parent, Purchaser and their respective subsidiaries and affiliates at the time of such exercise, shall constitute one share ten thousand (10,000) shares more than 9050% of the total shares of Common Stock then outstanding (after giving effect to the issuance of the 50% Top-Up Option Shares) and (y) an aggregate number of shares of Common Stock that is equal to 19.9% of the shares of Common Stock issued and outstanding as of the date hereof; provided, however, that the 50% Top-Up Option shall not be exercisable unless, immediately after such exercise and the issuance of shares of Common Stock pursuant thereto, Purchaser would own more than 50% of the Shares then outstanding (assuming the issuance of the Top-Up Shares) at a price per Share equal to the Offer Price; provided, however, that (i) the 50% Top-Up Option shall be exercisable only onceShares); and provided, at such time as Parent and Purchaserfurther, directly or indirectly, own at least 85% of the total number of Shares then outstanding and on or prior to the 20th Business Day after the Expiration Date or the expiration date of any subsequent offering period, (ii) that in no event shall the 50% Top-Up Option be exercisable for a number of Shares shares of Common stock in excess of the Company’s then authorized and unissued shares of Common Stock (including as total authorized and unissued shares of Common Stock. (ii) Provided that no applicable law, for purposes of this Section 1.5rule, any Shares held in the treasury of the Company)regulation, (iii) Purchaser shallorder, concurrently with injunction or other legal impediment shall prohibit the exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (and Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 2.7, and (iv) the Top-Up Option may not be exercised if any provision of applicable Law or any judgment, injunction, order or decree of any Governmental Entity shall prohibit, or require 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 50% Top-Up Option or the delivery issuance of the Top-Up Shares in respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable. (b) Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws. (c) Parent and Purchaser understand that the Shares that Purchaser may acquire upon exercise of the 50% Top-Up Option will not be registered under Shares pursuant thereto, or otherwise make such exercise or issuance illegal, Purchaser may exercise the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Purchaser represent and warrant to the Company that Purchaser is, and will be upon exercise of the 50% Top-Up Option, an in whole but not in part, at any one time after the Appointment Time and prior to the earlier to occur of (i) the record date for the Special Meeting, and (ii) the termination of this Agreement pursuant to Section 8.1. (iii) In the event Purchaser wishes to exercise the 50% Top-Up Option, Purchaser shall send to the Company a written notice (a “accredited investor50% Top-Up Exercise Notice,” (the date of which notice is referred to herein as defined in Rule 501 the “50% Top-Up Notice Date”) specifying the denominations of Regulation D promulgated under the Securities Act). Purchaser agrees that certificate or certificates evidencing the 50% Top-Up Option Shares which the Purchaser wishes to receive, and the place, time and date for the closing of the purchase and sale pursuant to the 50% Top-Up Option (the “50% Top-Up Closing”). The Company shall, promptly after receipt of the 50% Top-Up Exercise Notice, deliver a written notice to the Purchaser confirming the number of 50% Top-Up Option Shares and the aggregate purchase price therefore (the “50% Top-Up Notice Receipt”). At the 50% Top-Up Closing, Purchaser shall pay the Company the aggregate price required to be acquired upon exercise thereof are being and will be acquired paid for the purpose 50% Top-Up Option Shares by delivery of investment a Promissory Note in an aggregate principal amount equal to the aggregate purchase price specified in the 50% Top-Up Notice Receipt, and not with the Company shall cause to be issued to Purchaser a view to certificate or for resale in connection with certificates representing the 50% Top-Up Option Shares. Such certificates may include any distribution thereof within the meaning of the Securities Actlegends that are required by federal or state securities laws.

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser an option (the “Top-Up Option”), exercisable in Purchaser’s discretion, but only after the acceptance by Purchaser of, and payment for, Shares tendered in the Offer, to purchase (for cash or a note payable) that number (but not less than that number) of Shares (the “Top-Up Shares”) as is equal to the lowest number of Shares that, when added to the number of Shares owned directly or indirectly by Parent or Purchaser at the time of such exercise, shall will constitute one share more than ninety percent (90% %) of the total Shares then outstanding (assuming the issuance of the Top-Up Shares) at a price per Share equal to the Offer Price; provided, however, that (i1) the Top-Up Option shall will be exercisable only once, at such time as Parent and Purchaser, directly or indirectly, own at least 85% eighty (80%) of the total number of Shares then outstanding outstanding, and only on or prior to the 20th fifth (5th) Business Day after the Expiration Date expiration date of the Offer or the expiration date of any subsequent offering period, (ii2) in no event shall will the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized and unissued shares of Common Stock Shares (including as authorized and unissued shares of Common StockShares, for purposes of this Section 1.51.5(a), any Shares held in the treasury of the Company), (iii) Purchaser shall, concurrently with the exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (and Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 2.7, and (iv3) the Top-Up Option may not be exercised if any provision of applicable Law (including the Nasdaq rules) or any judgment, injunction, order or decree of any Governmental Entity shall will prohibit, or require 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 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 exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (and Purchaser will, and Parent will cause Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 2.7. (b) The aggregate purchase price payable for the Shares purchased by Purchaser pursuant to the Top-Up Option shall be determined by multiplying the number of such Shares by the Offer Price. Such purchase price may be paid by Purchaser, at its election, either entirely in cash or by executing and delivering to the Company a promissory note having a principal amount equal to such purchase price, or by any combination of the foregoing. Any such promissory note shall bear interest at the rate of 3% per annum, shall mature on the first anniversary of the date of execution and delivery of such promissory note and may be prepaid without premium or penalty. (c) In the event that Purchaser wishes to exercise the Top-Up Option, Parent or Purchaser shall deliver to the Company a notice setting forth: (i) the number of Shares that Purchaser intends to purchase pursuant to the Top-Up Option; (ii) the manner in which Parent or Purchaser intends to pay the applicable exercise price; and (iii) the place and time at which the closing of the purchase of such Top-Up Shares by Purchaser is to take place. The Company shall, as soon as practicable following receipt of such notice, notify Parent and Purchaser of the number of Shares then outstanding, the number of Shares then outstanding on a fully diluted basis and the number of Top-Up Shares. At the closing of the purchase of such Top-Up Shares, Parent or Purchaser shall cause to be delivered to the Company the consideration required to be delivered in exchange therefor, and the Company shall cause to be issued to Purchaser a certificate representing such Top-Up Shares. Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws. (cd) Parent and Purchaser understand that the Shares that Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Purchaser represent and warrant to the Company that Purchaser is, and will be upon exercise of the Top-Up Option, an “accredited investor” (as defined in Rule 501 of Regulation D promulgated under the Securities Act). Purchaser agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise thereof are being and will be acquired for the purpose of investment and not with a view to or for resale in connection with any distribution thereof within the meaning of the Securities Act.

Top-Up Option. (a) The Subject to the terms and conditions set forth herein, the Company hereby irrevocably grants to Purchaser Merger Sub an option (the “Top-Up Option”), exercisable only after the acceptance by Purchaser Merger Sub of, and payment for, Shares tendered in the OfferOffer and upon the terms and conditions set forth in this Section 1.4, to purchase that number (but not less than that number) of Shares shares of Company Common Stock (the “Top-Up Option Shares”) as is equal to the lowest number of Shares shares that, when added to the number of Shares owned directly or indirectly owned by Parent or Purchaser Merger Sub or their Subsidiaries at the time of such exercise, shall constitute one share more than 90% of the total Shares then outstanding (assuming taking into account the issuance of the Top-Up Option Shares) at a price per Share share equal to the Offer Price; provided, however, provided that (i) the Top-Up Option shall be exercisable only once, at such time as Parent and Purchaser, directly or indirectly, own at least 85% of the total number of Shares then outstanding and on or prior to the 20th Business Day earlier to occur of the 21st business day (calculated in accordance with Rule 14d-1(g)(3) under the Exchange Act) after the Expiration Date or the expiration date of any subsequent offering periodthe Offer or the termination of this Agreement in accordance with its terms, (ii) in no event shall the Top-Up Option be exercisable for a number of Shares (x) in excess of the Company’s then authorized and unissued shares of Company Common Stock (including as authorized and unissued shares of Common Stockgiving effect, for purposes of this Section 1.51.4, to shares reserved for issuance under any Shares held in Employee Benefit Plan as if such shares were outstanding) or (y) that would require the treasury Company to obtain the approval of the Company)its stockholders under Applicable Law or any Nasdaq rule or regulation, (iii) Purchaser shall, concurrently with the exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (and Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 2.7, and (iv) the Top-Up Option may not be exercised if any provision of applicable Applicable Law or any judgment, injunction, order or decree of any Governmental Entity shall prohibit, or require 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 Option Shares in respect of such exercise, which action, consent, approval, authorization or permit, action, filing or notification has not theretofore been obtained or made, as applicable. (b) If Merger Sub wishes to exercise the Top-Up Option, Merger Sub shall send to the Company a written notice (a “Top-Up Exercise Notice”, and the date of receipt of such notice the “Top-Up Notice Date”) specifying the place for the closing of the purchase and sale of Shares pursuant to the Top-Up Option (the “Top-Up Closing”). The Company shall, promptly after receipt of the Top-Up Exercise Notice, deliver a written notice to Merger Sub confirming (i) the number of Shares then outstanding on a fully-diluted basis, and (ii) the number of Top-Up Shares and the aggregate purchase price therefor. (c) At the Top-Up Closing, subject to the terms and conditions of this Agreement, the Company shall deliver to Merger Sub a certificate or certificates evidencing the applicable number of Top-Up Option Shares, and Merger Sub shall purchase each Top-Up Option Share from the Company at a price per Share equal to the Offer Price. Payment by Merger Sub of the purchase price for the Top-Up Option Shares may be made, at Merger Sub’s option, by delivery of immediately available funds by wire transfer to an account designated by the Company. The parties shall cooperate to ensure that the issuance of the Top-Up Option Shares is accomplished consistent with all applicable legal requirements, including all federal securities Laws. (d) Upon the delivery by Merger Sub to the Company of the Top-Up Exercise Notice, and the tender of the consideration described in Section 1.4(c), Merger Sub shall be deemed to be the holder of record of the Top-Up Option Shares issuable upon that exercise, notwithstanding that the stock transfer books of the Company shall then be closed or that certificates representing those Top-Up Option Shares shall not then be actually delivered to Merger Sub or the Company shall have failed or refused to designate the account described in Section 1.4(c). (e) Any certificates evidencing Top-Up Option Shares may include any legends required by applicable securities lawsLaws. (cf) Parent and Purchaser understand Merger Sub acknowledge that the Shares that Purchaser Merger Sub may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Each of Parent and Purchaser represent Merger Sub hereby represents and warrant warrants to the Company that Purchaser Merger Sub is, and will be upon exercise the purchase of the Top-Up OptionOption Shares, an “accredited investor” (”, as defined in Rule 501 of Regulation D promulgated under the Securities Act). Purchaser Merger Sub agrees that the Top-Up Option and the Top-Up Option Shares to be acquired upon exercise thereof of the Top- Up Option are being and will be acquired by Merger Sub for the purpose of investment and not with a view to to, or for resale in connection with with, any distribution thereof (within the meaning of the Securities Act).

Top-Up Option. (a) The Company hereby irrevocably grants to Purchaser an option (the “Top-Up Option”), exercisable in Purchaser’s discretion, but only after the acceptance by Purchaser of, and payment for, Shares tendered in the Offer, to purchase (for cash or a note payable) that number (but not less than that number) of Shares (the “Top-Up Shares”) as is equal to the lesser of (i) the lowest number of Shares that, when added to the number of Shares owned directly or indirectly by Parent or Purchaser at the time of such exercise, shall will 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 PricePrice and (ii) the aggregate number of Shares held as treasury shares by the Company and the number of Shares that the Company is authorized to issue under its certificate of incorporation but which (A) are not issued and outstanding, (B) are not reserved for issuance pursuant to the Company Stock Plans and (C) are issuable without the approval of the Company’s stockholders; provided, however, that (i1) the Top-Up Option shall will be exercisable only once, at such time as Parent once and Purchaser, directly or indirectly, own at least 85% of the total number of Shares then outstanding and only on or prior to the 20th fifth (5th) Business Day after the later of the Expiration Date or the expiration date of any subsequent offering period, (ii) in no event shall the Top-Up Option be exercisable for a number of Shares in excess of the Company’s then authorized and unissued shares of Common Stock (including as authorized and unissued shares of Common Stock, for purposes of this Section 1.5, any Shares held in the treasury of the Company), (iii) Purchaser shall, concurrently with the exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (and Purchaser shall, and Parent shall cause Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 2.7, period and (iv2) the Top-Up Option may not be exercised if any provision of applicable Law (including the Nasdaq rules) or any judgment, injunction, order or decree of any Governmental Entity shall prohibitprohibits, or require 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 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 exercise of the Top-Up Option, give written notice to the Company that as promptly as practicable following such exercise, Purchaser intends to (and Purchaser will, and Parent will cause Purchaser to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of the DGCL as contemplated by Section 2.7. (b) The aggregate purchase price payable for the Shares purchased by Purchaser pursuant to the Top-Up Option shall be determined by multiplying the number of such Shares by the Offer Price. Such purchase price may be paid by Purchaser, at its election, either entirely in cash or by paying in cash an amount equal to not less than the aggregate par value of such Shares and by executing and delivering to the Company a promissory note having a principal amount equal to the balance of such purchase price, or any combination of the foregoing. Any such promissory note, in the form attached as Annex IV, (i) shall bear interest at the rate of 5% per annum, (ii) shall mature on the first anniversary of the date of execution and delivery of such promissory note, and (iii) shall be full recourse to Parent and Purchaser and may be prepaid in whole or in part without premium or penalty. (c) In the event that Purchaser wishes to exercise the Top-Up Option, Parent or Purchaser shall deliver to the Company a notice setting forth: (i) the number of Shares that Purchaser intends to purchase pursuant to the Top-Up Option; (ii) the manner in which Parent or Purchaser intends to pay the applicable exercise price; and (iii) the place and time at which the closing of the purchase of such Top-Up Shares by Purchaser is to take place. The Company shall, as soon as practicable following receipt of such notice, notify Parent and Purchaser of the number of Shares then outstanding, the number of Shares then outstanding on a Fully-Diluted Basis and the number of Top-Up Shares. At the closing of the purchase of such Top-Up Shares, Parent or Purchaser shall cause to be delivered to the Company the consideration required to be delivered in exchange therefor, and the Company shall cause to be issued to Purchaser a certificate representing such Top-Up Shares. Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws. (cd) Parent and Purchaser understand that the Shares that Purchaser may acquire upon exercise of the Top-Up Option will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Parent and Purchaser represent and warrant to the Company that Purchaser is, and will be upon exercise of the Top-Up Option, an “accredited investor” (as defined in Rule 501 of Regulation D promulgated under the Securities Act). Purchaser agrees that the Top-Up Option and the Top-Up Shares to be acquired upon exercise thereof are being and will be acquired for the purpose of investment and not with a view to to, or for resale in connection with with, any distribution thereof within the meaning of the Securities Act. (e) The parties agree and acknowledge that any dilutive impact on the value of the shares of Common Stock as a result of the issuance of the Top-Up Shares will not be taken into account in any determination of the fair value of any Dissenting Shares pursuant to Section 262 of the DGCL as contemplated by Section 3.3.