Adjustments upon Changes in Capitalization, Merger or Asset Sale. (a) In the event that the Company determines that other than an Equity Restructuring any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), reclassification, reorganization, merger, consolidation, spin off, combination, repurchase, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, or other similar corporate transaction or event, in the Company’s sole discretion, affects the Common Stock such that an adjustment is determined by the Company to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under this Agreement or with respect to the SAR, then the Company shall, in such manner as it may deem equitable, adjust the number and kind of shares of Common Stock (or other securities or property) subject to this Agreement. (b) In the event of any transaction or event described in paragraph 16(a), the Company, in its sole discretion, and on such terms and conditions as it deems appropriate, either by the terms of the Agreement or by action taken prior to the occurrence of such transaction or event and either automatically or upon the Participant’s request, is hereby authorized to take any one or more of the following actions whenever the Company determines that such action is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under this Agreement or to facilitate such transaction or event: (i) To provide for either the purchase of the SAR for an amount of cash equal to the amount that could have been obtained upon the exercise of the SAR or realization of the Participant’s rights had the SAR been currently exercisable or payable or fully vested or the replacement of the SAR with other rights or property selected by the Company in its sole discretion; (ii) To provide that the SAR shall be exercisable as to all shares covered thereby, notwithstanding anything to the contrary in this Agreement; (iii) To provide that the SAR be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices; (iv) To make adjustments in the number and type of shares of Common Stock (or other securities or property) subject to outstanding SAR, and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding SAR; or (v) To provide that immediately upon the consummation of such event, the SAR shall not be exercisable and shall terminate; provided, that for a specified period of time prior to such event, the SAR shall be exercisable as to all Shares covered thereby, and the restrictions imposed under this Agreement upon some or all Shares may be terminated, notwithstanding anything to the contrary in this Agreement. (c) In connection with the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in paragraphs 16(a) and 16(b), the number and type of securities subject to the outstanding SAR and the exercise price or ▇▇▇▇▇ ▇▇▇▇▇ thereof, if applicable, will be proportionately adjusted. The adjustments provided under this paragraph 16(c) shall be nondiscretionary and shall be final and binding on the affected the Participant and the Company. (d) If the Company undergoes an Acquisition, then any surviving corporation or entity or acquiring corporation or entity, or affiliate of such corporation or entity, may assume the SAR or may substitute similar stock awards (including an award to acquire the same consideration paid to the stockholders in the transaction described in this paragraph 16(d)) for those outstanding under this Agreement. In the event any surviving corporation or entity or acquiring corporation or entity in an Acquisition, or affiliate of such corporation or entity, does not assume the SAR or does not substitute similar stock awards for the SAR, then if the Participant’s status as a Service Provider has not terminated prior to such event, the vesting of the SAR (and the time during which the SAR may be exercised) shall be accelerated and made fully exercisable and all restrictions thereon shall lapse at least ten (10) days prior to the closing of the Acquisition (and the SAR terminated if not exercised prior to the closing of such Acquisition). (f) The existence of this Agreement shall not affect or restrict in any way the right or power of the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or prior preference stocks whose rights are superior to or affect the Common Stock or the rights thereof or which are convertible into or exchangeable for Common Stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
Appears in 1 contract
Adjustments upon Changes in Capitalization, Merger or Asset Sale. Except as provided in paragraph 4 above:
(a) In the event that the Company determines that other than an Equity Restructuring any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), reclassification, reorganization, merger, consolidation, spin off, combination, repurchase, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, or other similar corporate transaction or event, in the Company’s sole discretion, affects the Common Stock such that an adjustment is determined by the Company to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under this Agreement or with respect to the SARSARs, then the Company shall, in such manner as it may deem equitable, adjust the number and kind of shares of Common Stock (or other securities or property) subject to this AgreementAgreement and the SARs.
(b) In the event of any transaction or event described in paragraph 16(a)17(a) above, the Company, in its sole discretion, and on such terms and conditions as it deems appropriate, either by the terms of the Agreement or by action taken prior to the occurrence of such transaction or event and either automatically or upon the Participant’s request, is hereby authorized to take any one or more of the following actions whenever the Company determines that such action is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under this Agreement or to facilitate such transaction or event:
(i) To provide for either the purchase of the SAR SARs for an amount of cash equal to the amount that could have been obtained upon the exercise of the SAR SARs or realization of the Participant’s rights had the SAR SARs been currently exercisable or payable or fully vested or the replacement of the SAR SARs with other rights or property selected by the Company in its sole discretion;
(ii) To provide that the SAR SARs shall be exercisable as to all shares Shares covered thereby, notwithstanding anything to the contrary in this Agreement;
(iii) To provide that the SAR SARs be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;
(iv) To make adjustments in the number and type of shares of Common Stock (or other securities or property) subject to outstanding SARSARs, and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding SARSARs; or
(v) To provide that immediately upon the consummation of such event, the SAR SARs shall not be exercisable and shall terminate; provided, that for a specified period of time prior to such event, the SAR SARs shall be exercisable as to all Shares covered thereby, and the restrictions imposed under this Agreement upon some or all Shares may be terminated, notwithstanding anything to the contrary in this Agreement.
(c) In connection with the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in paragraphs 16(a17(a) and 16(b)17(b) above, the number and type of securities subject to the outstanding SAR SARs and the exercise price or ▇▇▇▇▇ ▇▇▇▇▇ thereof, if applicable, thereof will be proportionately adjusted. The adjustments provided under this paragraph 16(c17(c) shall be nondiscretionary and shall be final and binding on the affected the Participant and the Company.
(d) If the Company undergoes an Acquisitiona Change in Control, then any surviving corporation or entity or acquiring corporation or entity, or affiliate of such corporation or entity, may assume the SAR SARs or may substitute similar stock awards (including an award to acquire the same consideration paid to the stockholders in the transaction described in this paragraph 16(d17(d)) for those outstanding under this Agreement. In the event any surviving corporation or entity or acquiring corporation or entity in an Acquisitiona Change in Control, or affiliate of such corporation or entity, does not assume the SAR SARs or does not substitute similar stock awards for the SARSARs, then if the Participant’s status as a Service Provider has not terminated prior to such event, the vesting of the SAR SARs (and the time during which the SAR SARs may be exercised) shall be accelerated and made fully exercisable and all restrictions thereon shall lapse at least ten (10) days prior to the closing of the Acquisition Change in Control (and the SAR terminated SARs shall terminate if not exercised prior to the closing of such AcquisitionChange in Control).
(fe) The existence of this Agreement shall not affect or restrict in any way the right or power of the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or prior preference stocks whose rights are superior to or affect the Common Stock or the rights thereof or which are convertible into or exchangeable for Common Stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
Appears in 1 contract
Adjustments upon Changes in Capitalization, Merger or Asset Sale. (a) In the event that the Company determines that other than an Equity Restructuring any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), reclassification, reorganization, merger, consolidation, spin off, combination, repurchase, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, or other similar corporate transaction or event, in the Company’s sole discretion, affects the Common Stock such that an adjustment is determined by the Company to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under this Agreement or with respect to the SAR, then the Company shall, in such manner as it may deem equitable, adjust the number and kind of shares of Common Stock (or other securities or property) subject to this Agreement.
(b) In the event of any transaction or event described in paragraph 16(a14(a), the Company, in its sole discretion, and on such terms and conditions as it deems appropriate, and to the extent allowed by Section 409A of the Code and any applicable regulations thereunder, to the extent applicable, either by the terms of the Agreement or by action taken prior to the occurrence of such transaction or event and either automatically or upon the Participant’s request, is hereby authorized to take any one or more of the following actions whenever the Company determines that such action is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under this Agreement or to facilitate such transaction or event:
(i) To provide for either the purchase of the SAR for an amount of cash equal to the amount that could have been obtained upon the exercise of the SAR or realization of the Participant’s rights had the SAR been currently exercisable or payable or fully vested or the replacement of the SAR with other rights or property selected by the Company in its sole discretion;
(ii) To provide that the SAR shall be exercisable as to all shares covered thereby, notwithstanding anything to the contrary in this Agreement;
(iii) To provide that the SAR be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;
(iv) To make adjustments in the number and type of shares of Common Stock (or other securities or property) subject to outstanding SAR, and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding SAR; or
(v) To provide that immediately upon the consummation of such event, the SAR shall not be exercisable and shall terminate; provided, that for a specified period of time prior to such event, the SAR shall be exercisable as to all Shares covered thereby, and the restrictions imposed under this Agreement upon some or all Shares may be terminated, notwithstanding anything to the contrary in this Agreement.
(c) In connection with the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in paragraphs 16(a14(a) and 16(b), the 14(b):
(i) The number and type of securities subject to the outstanding SAR and the exercise price or ▇▇▇▇▇ ▇▇▇▇▇ thereof, if applicable, will be proportionately adjusted. The adjustments provided under this paragraph 16(c14(c)(i) shall be nondiscretionary and shall be final and binding on the affected the Participant and the Company.
(ii) Notwithstanding anything in this paragraph 14 to the contrary, this paragraph 14(c) shall not apply to, and instead paragraph 14(a) shall apply to the SAR to the extent the application of this paragraph 14(c) would result in a penalty tax under Section 409 A of the Code and the proposed and final regulations and guidance issued by the Secretary of the Treasury thereunder.
(d) If the Company undergoes an Acquisition, then any surviving corporation or entity or acquiring corporation or entity, or affiliate of such corporation or entity, may assume the SAR or may substitute similar stock awards (including an award to acquire the same consideration paid to the stockholders in the transaction described in this paragraph 16(d15(d)) for those outstanding under this Agreementthe Plan. In the event any surviving corporation or entity or acquiring corporation or entity in an Acquisition, or affiliate of such corporation or entity, does not assume the SAR or does not substitute similar stock awards for the SAR, then if the Participant’s status as a Service Provider has not terminated prior to such event, the vesting of the SAR (and the time during which the SAR may be exercised) shall be accelerated and made fully exercisable and all restrictions thereon shall lapse at least ten (10) days prior to the closing of the Acquisition (and the SAR terminated if not exercised prior to the closing of such Acquisition).
(f) The existence of this Agreement shall not affect or restrict in any way the right or power of the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or prior preference stocks whose rights are superior to or affect the Common Stock or the rights thereof or which are convertible into or exchangeable for Common Stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
Appears in 1 contract
Adjustments upon Changes in Capitalization, Merger or Asset Sale. (a) In the event that the Company determines that other than an Equity Restructuring any dividend or other distribution (whether in the form of cash, Common Stock, other securities, or other property), reclassification, reorganization, merger, consolidation, spin off, combination, repurchase, liquidation, dissolution, or sale, transfer, exchange or other disposition of all or substantially all of the assets of the Company, or exchange of Common Stock or other securities of the Company, issuance of warrants or other rights to purchase Common Stock or other securities of the Company, or other similar corporate transaction or event, in the Company’s sole discretion, affects the Common Stock such that an adjustment is determined by the Company to be appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under this Agreement or with respect to the SAROption, then the Company shall, in such manner as it may deem equitable, adjust the number and kind of shares of Common Stock (or other securities or property) subject to this AgreementAgreement and the Option.
(b) In the event of any transaction or event described in paragraph 16(aSection 4.5(a), the Company, in its sole discretion, and on such terms and conditions as it deems appropriate, either by the terms of the Agreement or by action taken prior to the occurrence of such transaction or event and either automatically or upon the Participant’s request, is hereby authorized to take any one or more of the following actions whenever the Company determines that such action is appropriate in order to prevent dilution or enlargement of the benefits or potential benefits intended by the Company to be made available under this Agreement or to facilitate such transaction or event:
(i) To provide for either the purchase of the SAR Option for an amount of cash equal to the amount that could have been obtained upon the exercise of the SAR Option or realization of the Participant’s rights had the SAR Option been currently exercisable or payable or fully vested or the replacement of the SAR Option with other rights or property selected by the Company in its sole discretion;
(ii) To provide that the SAR Option shall be exercisable as to all shares Shares covered thereby, notwithstanding anything to the contrary in this Agreement;
(iii) To provide that the SAR Option be assumed by the successor or survivor corporation, or a parent or subsidiary thereof, or shall be substituted for by similar options, rights or awards covering the stock of the successor or survivor corporation, or a parent or subsidiary thereof, with appropriate adjustments as to the number and kind of shares and prices;
(iv) To make adjustments in the number and type of shares of Common Stock (or other securities or property) subject to outstanding SARthis Option, and/or in the terms and conditions of (including the grant or exercise price), and the criteria included in, outstanding SARthe Option; or
(v) To provide that immediately upon the consummation of such event, the SAR Option shall not be exercisable and shall terminate; provided, that for a specified period of time prior to such event, the SAR Option shall be exercisable as to all Shares covered thereby, and the restrictions imposed under this Agreement upon some or all Shares may be terminated, notwithstanding anything to the contrary in this Agreement.
(c) In connection with the occurrence of any Equity Restructuring, and notwithstanding anything to the contrary in paragraphs 16(aSections 4.5(a) and 16(b4.5(b), the number and type of securities subject to the outstanding SAR Option and the exercise price or ▇▇▇▇▇ ▇▇▇▇▇ thereof, if applicable, thereof will be proportionately adjusted. The adjustments provided under this paragraph 16(cSection 4.5(c) shall be nondiscretionary and shall be final and binding on the affected the Participant and the Company.
(d) If the Company undergoes an Acquisition, then any surviving corporation or entity or acquiring corporation or entity, or affiliate of such corporation or entity, may assume the SAR or may substitute similar stock awards (including an award to acquire the same consideration paid to the stockholders in the transaction described in this paragraph 16(d)) for those outstanding under this Agreement. In the event any surviving corporation or entity or acquiring corporation or entity in an Acquisition, or affiliate of such corporation or entity, does not assume the SAR or does not substitute similar stock awards for the SAR, then if the Participant’s status as a Service Provider has not terminated prior to such event, the vesting of the SAR (and the time during which the SAR may be exercised) shall be accelerated and made fully exercisable and all restrictions thereon shall lapse at least ten (10) days prior to the closing of the Acquisition (and the SAR terminated if not exercised prior to the closing of such Acquisition).
(f) The existence of this Agreement shall not affect or restrict in any way the right or power of the Company or the stockholders of the Company to make or authorize any adjustment, recapitalization, reorganization or other change in the Company’s capital structure or its business, any merger or consolidation of the Company, any issue of stock or of options, warrants or rights to purchase stock or of bonds, debentures, preferred or prior preference stocks whose rights are superior to or affect the Common Stock or the rights thereof or which are convertible into or exchangeable for Common Stock, or the dissolution or liquidation of the Company, or any sale or transfer of all or any part of its assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
Appears in 1 contract