Page 39 is also important because it explains what Takeda will try to do to avoid delays in the merger completion. They will use the Top-Up Option in order to get the 90% necessary for a Short-Form Merger.
"Top-Up Option.
Subject to the terms of the Merger Agreement, the Company has granted Takeda America and Offeror an irrevocable option (the "Top-Up Option" ), exercisable only on the terms and conditions set forth in the Merger Agreement, to purchase from the Company an aggregate number of newly-issued Shares equal to the lesser of (i) the number of Shares that, when added to the number of Shares owned by Offeror as of immediately prior to the exercise of the Top-Up Option, constitutes one Share more than 90% of the number of Shares then outstanding on a fully diluted basis (assuming the issuance of the Top-Up Option Shares) or (ii) the aggregate of the number of Shares held as treasury shares by the Company and its subsidiaries and the number of Shares that the Company is authorized to issue under its Certificate of Incorporation, but that are not issued and outstanding (and are not reserved for issuance pursuant to the exercise of stock options or warrants) as of immediately prior to the exercise of the Top-Up Option. The obligation of the Company to issue such Shares is subject to compliance with all applicable regulatory and stock exchange requirements.
The Top-Up Option may be exercised by Offeror, in whole or in part, at any time at or after the Acceptance Time, and no exercise of the Top-Up Option shall be effective prior to the Acceptance Time. The aggregate purchase price payable for the Shares acquired upon exercise of the Top-Up Option shall be determined by multiplying the number of such Shares by the Offer Price. Such purchase price will be paid by Offeror, 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 applicable federal rate determined under Section 1274(d) of the Code, 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. The Top-Up Option is intended to expedite the timing of the completion of the Merger by permitting Offeror to effect a "short-form" merger pursuant to applicable Delaware law at a time when the approval of the Merger at a meeting of the Company's stockholders would be assured because their ownership would represent at least a majority of the voting power of all Shares entitled to vote at such a meeting and required to complete the Merger.
Short-Form Merger.
Section 253 of the DGCL provides that, if a parent corporation owns at least 90% of each class of the stock of a subsidiary, that corporation can effect a short-form merger with that subsidiary without the action of the other stockholders of the subsidiary. Accordingly, if Offeror or any other subsidiary of Takeda America shall own, by virtue of the Offer or otherwise, 90% of the outstanding Shares, Takeda America, Offeror and the Company shall take all actions necessary and appropriate to cause the Merger to become effective as soon as practicable following the expiration of the Offer, without a stockholders' meeting in accordance with Section 253 of the DGCL."
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