definiens: means ( i ) if the number of Shares that are validly tenderedand not withdrawn at the time of acceptance for payment by Acquisition Sub uponexpiration of the Offer is equal to or greater than the Maximum Number, theacceptance for payment by Acquisition Sub of Shares in the Offer, ( ii ) if thenumber of Shares that are accepted for payment by Acquisition Sub uponexpiration of the Offer is less than the Maximum Number, the consummation of theAdditional Share Issuance ( unless Acquisition Sub shall have accepted Shares forpayment in the Offer and this Agreement is terminated pursuant to Section8.01(f)(i ), in which case shall mean the acceptance for payment byAcquisition Sub of Shares in the Offer ), ( iii ) if the Offer is terminatedpursuant to Section 3.02(a ), the consummation of the Market Failure ShareIssuance, ( iv ) if the Offer is terminated pursuant to Section 3.03(a ) and, immediately following the Open Market Purchase Period, [COMPANY] and its Affiliatesshall own at least 5 % of the then - outstanding Shares, the consummation of theOpen Market Purchase, or ( v ) if the Offer is terminated pursuant to Section3.03(a ) and the Open Market Purchase has been consummated, and immediatelyfollowing the Open Market Purchase Period, [COMPANY] and its Affiliates shall not ownat least 5 % of the then- outstanding Shares, the consummation of the Open MarketTop - Up Share Issuance ( unless this Agreement is terminated pursuant to Section8.01(f)(iii ), in which case shall mean the last day of the Open MarketPurchase Period ), as the case may be