Assumption of Options. (a) At the Effective Time, each Company Option and Global Crossing Assumed Option will be assumed by Exodus. Item 5.9 hereto sets forth a true and -------- complete list as of the date hereof of all holders of the Company Options and Global Crossing Assumed Options, including the number of shares of Company Common Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Option. On the Closing Date, the Company shall deliver to Exodus an updated Item 5.9, current as of such date. Each Company -------- Option and Global Crossing Assumed Option so assumed by Exodus under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that: (i) with respect to Company Options, (1) each Company Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Company Common Stock subject to such Company Option multiplied by (B) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Company Option will be equal to the quotient determined by dividing (x) the exercise price per share of Company Common Stock at which such Company Option was exercisable, by (y) the Exchange Ratio, rounded to the nearest whole cent. (ii) with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent with the terms of the Company -------- Options and Global Crossing Assumed Options and the respective documents governing them, the Merger will not terminate any of the Company Options or Global Crossing Assumed Options. (b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that: (i) Each New Exodus Option shall be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common Stock. (ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole cent.
Appears in 2 contracts
Samples: Merger Agreement (Global Crossing LTD), Merger Agreement (Exodus Communications Inc)
Assumption of Options. (a) At the Effective TimeClosing, the Company Stock Plan and each Company Option under the Company Stock Plan that is unexpired, unexercised and Global Crossing Assumed Option will outstanding immediately prior to the Effective Time shall, on the terms and subject to the conditions set forth in this Agreement, be assumed by Exodus. Item 5.9 hereto sets forth a true and -------- complete list as of the date hereof of all holders of the Company Options and Global Crossing Assumed Options, including the number of shares of Company Common Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Option. On the Closing Date, the Company shall deliver to Exodus an updated Item 5.9, current as of such dateParent. Each Company -------- Option and Global Crossing Assumed Option such option so assumed by Exodus Parent under this Agreement shall continue to have, and be subject to, the same terms and conditions (including, if applicable, the terms and conditions set forth in the applicable Company Stock Option Plan and the applicable stock option agreement agreement) as are in effect immediately prior to the Effective TimeClosing, except that:
(i) The portion of each such Company Option that is vested as of immediately prior to the Effective Time (after giving effect to acceleration provisions triggered as a result of the Merger) shall:
(A) Entitle its holder to receive, in accordance with respect Section 1.6, an amount of cash equal to (i) the product of the Cash Amount multiplied by the number of shares of Company OptionsCommon Stock that were issuable upon exercise of such vested portion immediately prior to the Effective Time minus (ii) the product of (x) the aggregate exercise price for the shares of Company Common Stock that were issuable upon exercise of such vested portion immediately prior to the Effective Time, and (y) the quotient of the Option Stock Amount divided by the Common Exchange Ratio; and
(B) From and after such assumption, (1i) each Company Option will be exercisable for that number of whole shares of Exodus Parent Common Stock (rounded down to the nearest whole number of shares of Parent Common Stock) equal to the product of (A1) the number of shares of Company Common Stock subject that were issuable upon exercise of such vested portion immediately prior to such Company Option the Effective Time, multiplied by (B) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the Stock Amount, and (ii) have a per share exercise price for the shares of Exodus Parent Common Stock issuable upon exercise of each such Company Option will be assumed vested portion equal to the quotient determined (rounded up to the nearest whole cent) obtained by dividing (1) the product of (x) the exercise price per share of Company Common Stock at which such Company Option vested portion was exercisable, exercisable immediately prior to the Effective Time multiplied by (y) the quotient of the Stock Amount divided by the Common Exchange Ratio, rounded to divided by (2) the nearest whole cent.Stock Amount; and
(ii) with respect The portion of each such Company Option that is not vested as of immediately prior to Global Crossing Assumed Options, in accordance with the applicable option agreement, Effective Time (1after giving effect to acceleration provisions triggered as a result of the Merger) each Global Crossing Assumed Option will (i) shall be exercisable for that number of whole shares of Exodus Parent Common Stock (rounded down to the nearest whole number of shares of Parent Common Stock) equal to the product of (A) of the number of shares of Global Crossing Ltd. stock subject Company Common Stock that were issuable upon exercise of such unvested portion immediately prior to such Global Crossing Assumed Optionthe Effective Time, multiplied by and (B) 1.888, and multiplied by (C) the Common Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2ii) the per share exercise price for the shares of Exodus Parent Common Stock issuable upon exercise of each such Global Crossing Assumed Option will assumed unvested portion shall be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded up to the nearest whole cent. Except as disclosed on Item 5.9, consistent with ) obtained by dividing (A) the terms exercise price per share of the Company -------- Options and Global Crossing Assumed Options and the respective documents governing them, the Merger will not terminate any of the Company Options or Global Crossing Assumed Options.
(b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Common Stock Option Plan and the applicable stock option agreement at which such unvested portion was exercisable immediately prior to the Effective Time, except that:
(i) Each New Exodus Option shall be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied Time by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common StockExchange Ratio.
(iiiii) The per share exercise price for shares For purposes of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole cent.this Section 4.14:
Appears in 2 contracts
Samples: Merger Agreement (Sunpower Corp), Merger Agreement (Sunpower Corp)
Assumption of Options. (a) At the Effective Time, the Company Stock Option Plan and each outstanding option to purchase Shares under the Company Stock Option and Global Crossing Assumed Option Plan, whether vested or unvested, will be assumed by Exodus. Item 5.9 hereto sets forth a true and -------- complete list as of the date hereof of all holders of the Company Options and Global Crossing Assumed Options, including the number of shares of Company Common Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed OptionParent. On the Closing Date, the Company shall deliver to Exodus Parent an updated Item 5.9list substantially similar to that presented in SECTION 4.3(a) OF THE COMPANY DISCLOSURE LETTER, current as of such date. Each Company -------- Option and Global Crossing Assumed Option such option so assumed by Exodus Parent under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
that (i) such option will, in accordance with respect to Company Optionsthe Common Stock Exchange Ratio, (1) each Company Option will be exercisable for that number of whole shares of Exodus Parent Common Stock equal to the product of (A) the number of shares of Company Common Stock subject to such Company Option multiplied by (B) the Exchange Ratio, and rounded option immediately prior to the nearest whole number of shares of Exodus Common StockEffective Time, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Company Option will be equal to the quotient determined by dividing (xii) the exercise price per share of Company Common Stock at which such Company Option was exercisable, by (y) the Exchange Ratio, rounded to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Optionsshall, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus such Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded remain as the exercise price per share in effect for that option immediately prior to the nearest whole number Effective Time. For purposes of shares this Agreement, the "Common Stock Exchange Ratio" shall be one share of Exodus Parent Common Stock for each share of Company Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent Consistent with the terms of the Company -------- Options and Global Crossing Assumed Options Stock Option Plan and the respective documents governing themthe outstanding options under such Plan, the Merger will not terminate any of the outstanding options under the Company Options or Global Crossing Assumed Options.
(b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan Plan. It is the intention of the parties that the options so assumed by Parent qualify, to the maximum extent permissible, following the Effective Time as incentive stock options as defined in Section 422 of the Code to the extent such options qualified as incentive stock options prior to the Effective Time. Within 20 Business Days after the Effective Time, Parent shall issue to each person who, immediately prior to the Effective Time was a holder of an outstanding option under the Company Stock Option Plan, a document in form and substance satisfactory to Company evidencing the applicable stock foregoing assumption of such option agreement immediately by Parent. At or prior to the Effective Time, except that:
(i) Each New Exodus Option Parent shall be exercisable take all corporate action necessary to reserve for that number of whole shares of Exodus Common Stock equal to the product of (A) the issuance a sufficient number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Parent Common Stock for the ten (10) trading days prior delivery of options assigned to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common Stockassumed by it in accordance with this SECTION 3.4(a).
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole cent.
Appears in 2 contracts
Samples: Merger Agreement (Convergent Holding Corp), Merger Agreement (Convergent Holding Corp)
Assumption of Options. (a) At As of the Effective Time, Parent --------------------- shall assume each Company Option and Global Crossing Assumed Option will be assumed by Exodus. Item 5.9 hereto sets forth a true and -------- complete list as of the date hereof of all holders of the Company Options and Global Crossing Assumed Options, including the number of option to purchase shares of Company Common Stock subject to ("Company Options") outstanding at the Effective Time under the Company's stock option plans (the "Plans") and each such Company Option or, with respect to the Global Crossing Assumed Options, the shall thereafter be exercisable for a number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Parent Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Option. On the Closing Date, the Company shall deliver to Exodus an updated Item 5.9, current as of such date. Each Company -------- Option and Global Crossing Assumed Option so assumed by Exodus under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
(i) with respect to Company Options, (1) each Company Option will be exercisable for that number of whole shares of Exodus Common Stock Shares equal to the product of (A) the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time multiplied by (B) the Common Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the . The exercise price per share exercise price of Parent Common Shares for the shares of Exodus Common Stock issuable upon exercise of each such Company Option will Options shall be equal to the quotient determined by dividing (x) the exercise price per share of Company Common Stock at which under such Company Option was exercisable, divided by (y) the Common Exchange Ratio, rounded to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Options$.01, all in accordance with Section 425(a) of the applicable Code and the regulations promulgated thereunder, without regard to whether the Company Option qualifies as an incentive stock option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent with the terms meaning of Section 422A of the Code, although an assumed Company -------- Options and Global Crossing Assumed Options and the respective documents governing them, the Merger will not terminate any of Option is intended to be an incentive stock option if the Company Options or Global Crossing Assumed OptionsOption so qualifies.
(b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
(i) Each New Exodus assumed Company Option shall be exercisable upon the same terms and conditions as were applicable under the Company Option to purchase Company Common Stock except for that number of whole the adjustments contemplated hereinabove in Section 2.3(a). Parent will take all corporate and other action necessary to reserve and make available sufficient shares of Exodus Parent Common Shares for issuance upon exercise of such Company Options (including the Additional Shares payable as described above), will use its best efforts to list such shares on The Nasdaq Stock equal Market, will prepare and file with the Securities and Exchange Commission ("SEC") registration statements on the appropriate forms relating to the product of (A) the number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common Stock.
(ii) The per share exercise price for shares of Exodus Common Stock issuable issuance upon exercise of the New Exodus shares of Parent Common Shares underlying Company Options held by Company employees and will use its best efforts to have such registration statements declared effective as soon as practicable after the Effective Time and shall maintain the effectiveness of such registration statements. Parent will cause a Registration Statement on Form S-8 to be equal filed with the SEC to register the product shares of (A) Parent issuable under the per share exercise price foregoing Company Options as soon as practical following the Effective Time but not in excess of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading 120 days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole centthereafter.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Medarex Inc), Agreement and Plan of Reorganization (Medarex Inc)
Assumption of Options. (a) At As of the Effective Time, each Company Option and Global Crossing Assumed Option will be assumed by Exodus. Item 5.9 hereto sets forth a true and -------- complete list as Date of the date hereof of Reorganization, all holders of the Company Options and Global Crossing Assumed Options, including the number of shares of Company Common Stock subject to each such Company Option or, rights with respect to the Global Crossing Assumed Bank Stock issuable pursuant to the exercise of stock options (the "Bank Options") granted by the Bank under stock option plans of the Bank (the "Bank Stock Option Plans"), which are outstanding at the number Effective Date of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) the Reorganization, whether or not such Bank Options are then exercisable, shall, subject to each such optionthis section, whether be assumed by the option holder is an employee Company in accordance with the terms of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Option. On the Closing Date, the Company shall deliver to Exodus an updated Item 5.9, current as of such date. Each Company -------- Option and Global Crossing Assumed Option so assumed by Exodus under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company particular Bank Stock Option Plan under which such Bank Options were issued and the applicable stock option agreement immediately prior to by which such Bank Options are evidenced. From and after the Effective TimeDate of the Reorganization, except that:
(i) with respect to each Bank Option assumed by the Company Optionshereunder may be exercised solely for Company Stock, (1) each Company Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (Aii) the number of shares of Company Common Stock subject to such Company Bank Option multiplied by (B) the Exchange Ratio, and rounded shall be equal to the nearest whole number of shares of Exodus Common StockBank Stock subject to such Bank Option immediately prior to the Effective Date, and (2iii) the per share exercise price for the shares of Exodus Common Company Stock issuable upon exercise of under each such Company Bank Option will shall be equal the per share exercise price of the Bank Stock under such Bank Option immediately prior to the quotient determined by dividing (x) the exercise price per share of Company Common Stock at which such Company Option was exercisable, by (y) the Exchange Ratio, rounded to the nearest whole centEffective Date.
(iib) At all times after the Effective Date of the Reorganization the Company shall reserve for issuance such number of shares of Company Stock as shall be necessary to permit the exercise of the Bank Options in the manner contemplated by this Agreement.
(c) It is intended that the foregoing assumption of the Bank Options shall satisfy all the requirements under Section 424(a) of the Code and be undertaken in a manner that will not constitute a "modification" as defined in Section 424(h) of the Code as to any stock option which is an incentive stock option as defined in Section 422 of the Code. All restrictions or limitations on transfer with respect to Global Crossing Assumed OptionsBank Stock awarded under a Bank Stock Option Plan ("Restricted Stock"), to the extent that such restrictions or limitations shall not have already lapsed, shall remain in full force and effect with respect to the Company Stock into which such Restricted Stock is converted pursuant to this Agreement. Except as otherwise provided herein, the provisions of the Bank Option Plans that provide for the issuance or grant of any other interest in respect of the capital stock of the Bank shall be deleted as of the Effective Date of the Reorganization. <PAGE>
(d) As of the Effective Date of the Reorganization, all rights with respect to the Bank Stock issuable pursuant to the exercise of stock warrants (the "Bank Warrants") granted by the Bank, which are outstanding at the Effective Date of the Reorganization, whether or not such Bank Warrants are then exercisable, shall, subject to this section, be assumed by the Company in accordance with the applicable option agreementterms of the warrant agreements by which such Bank Warrants are evidenced. From and after the Effective Date of the Reorganization, (1i) each Global Crossing Assumed Option will Bank Warrant assumed by the Company hereunder may be exercisable exercised solely for that number of whole shares of Exodus Common Stock equal to the product of Company Stock, (Aii) the number of shares of Global Crossing Ltd. stock Company Stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded Bank Warrant shall be equal to the nearest whole number of shares of Exodus Common StockBank Stock subject to such Bank Warrant immediately prior to the Effective Date, and (2iii) the per share exercise price for the shares of Exodus Common Company Stock issuable upon exercise of under each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent with the terms of the Company -------- Options and Global Crossing Assumed Options and the respective documents governing them, the Merger will not terminate any of the Company Options or Global Crossing Assumed Options.
(b) Options Bank Warrant shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
(i) Each New Exodus Option shall be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common Stock.
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Bank Stock for the ten (10) trading days prior to and including the trading day ending two days under such Bank Warrant immediately prior to the Closing Effective Date, . At all times after the Effective Date of the Reorganization the Company shall reserve for issuance such number of shares of Company Stock as shall be necessary to permit the exercise of the Bank Warrants in the manner contemplated by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole centthis Agreement.
Appears in 2 contracts
Samples: Plan of Reorganization (Alliance Bancshares Inc), Plan of Reorganization (Alliance Bancshares Inc)
Assumption of Options. (a) At the Effective Time, the Target Stock Option Plan and each Company outstanding option to purchase shares of Target Common Stock under the Target Stock Option and Global Crossing Assumed Option Plan, whether vested or unvested, will be assumed by ExodusAcquiror in accordance with the provisions described below. Item 5.9 SCHEDULE 6.10 hereto sets forth a true and -------- complete list as of the date hereof of all holders of outstanding options under the Company Options and Global Crossing Assumed Options, Target Stock Option Plan including the number of shares of Company Common Target Capital Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Optionoption. On the Closing Date, the Company Target shall deliver to Exodus Acquiror an updated Item 5.9, SCHEDULE 6.10 hereto current as of such date. Each Company -------- Option and Global Crossing Assumed Option such option so assumed by Exodus Acquiror under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Target Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
that (i) with respect to Company Options, (1) each Company Option such option will be exercisable for that number of whole shares of Exodus Acquiror Common Stock equal to the product of (A) the number of shares of Company Target Common Stock subject that were issuable upon exercise of such option immediately prior to such Company Option the Effective Time multiplied by the Option Exchange Ratio (Bas defined in EXHIBIT A) the Exchange Ratio, and rounded down to the nearest whole number of shares of Exodus Acquiror Common Stock, and (2ii) the per share exercise price for the shares of Exodus Acquiror Common Stock issuable upon exercise of each such Company Option assumed option will be equal to the quotient determined by dividing (x) the exercise price per share of Company Target Common Stock at which such Company option was exercisable immediately prior to the Effective Time by the Option was exercisable, by (y) the Exchange Ratio, rounded to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded up to the nearest whole cent. Except as disclosed on Item 5.9, consistent Consistent with the terms of the Company -------- Options and Global Crossing Assumed Options Target Stock Option Plan and the respective documents governing themthe outstanding options under such plan, the Merger will not terminate any of the Company Options or Global Crossing Assumed Options.
(b) Options shall be as set forth in outstanding options under the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Target Stock Option Plan and or accelerate the applicable stock option agreement immediately prior to exercisability or vesting of such options or the Effective Time, except that:
(i) Each New Exodus Option shall be exercisable for that number of whole shares of Exodus Acquiror Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock which will be subject to those options upon the applicable Global Crossing Cancelled Option, multiplied by Acquiror's assumption of the options in the Merger. Target shall take all appropriate action to solicit (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior in order to and including the trading day ending two days obtain prior to the Closing Date, by ) consents (yin form satisfactory to Acquiror) from the average closing price per share as quoted on the Nasdaq National Market holders of Exodus Common Stock such outstanding options for the ten (10) trading days prior assumption of such options pursuant to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common Stockthis Section 6.
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole cent.
Appears in 1 contract
Samples: Merger Agreement (Ods Networks Inc)
Assumption of Options. (a) At the Effective TimeClosing Date, the Target Stock Option Plan, and each Company outstanding option to purchase shares of Target Common Stock under the Target Stock Option and Global Crossing Assumed Option Plan, whether vested or unvested (but as modified by the Amendment) (the "Target Options"), will be assumed by ExodusAcquiror. Item Schedule 5.9 to the Disclosure Schedule hereto sets forth a true and -------- complete list as of the date hereof of all holders of outstanding options under the Company Options and Global Crossing Assumed Options, Target Stock Option Plan ("Option Holder") including the number of shares of Company Target Common Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisionsschedule (but as modified by the Amendment) (as defined below), the exercise price per share and the term of each such Company Option or Global Crossing Assumed Optionoption. On the Closing Date, the Company Target shall deliver to Exodus Acquiror an updated Item 5.9, Schedule 5.9 hereto current as of such date. Each Company -------- Option and Global Crossing Assumed Option such option so assumed by Exodus Acquiror under the terms of this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Target Stock Option Plan and the applicable stock option agreement (as modified by the Amendment) immediately prior to the Effective Time, except that:
that (i) with respect to Company Options, (1) each Company Option such option will be exercisable for that number of whole shares of Exodus Acquiror Common Stock equal to the product of (A) the number of shares of Company Target Common Stock subject that were issuable upon exercise of such option immediately prior to such Company Option the Effective Time multiplied by (B) the Exchange Ratio, Ratio and rounded down to the nearest whole number of shares of Exodus Acquiror Common Stock, and (2ii) the per share exercise price for the shares of Exodus Acquiror Common Stock issuable upon exercise of each such Company Option assumed option will be equal to the quotient determined by dividing (x) the exercise price per share of Company Target Common Stock at which such Company Option option was exercisable, exercisable immediately prior to the Effective Time by (y) the Exchange Ratio, rounded to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded up to the nearest whole cent. Except as disclosed on Item 5.9, consistent Consistent with the terms of the Company -------- Options and Global Crossing Assumed Options Target Stock Option Plan and the respective documents governing themthe outstanding options under such Plans, the Merger transactions contemplated hereby will not terminate any of the Company Options or Global Crossing Assumed Options.
(b) Options shall be as set forth in outstanding options under the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Target Stock Option Plan and or accelerate the applicable stock option agreement exercisability or vesting of such options or the shares of Acquiror Common Stock which will be subject to those options upon the Acquiror's assumption of the options hereunder. Within 30 business days after the Effective Time, Acquiror will issue to each person who, immediately prior to the Effective Time, except that:
(i) Each New Exodus Time was a holder of an outstanding option under the Target Stock Option shall be exercisable for that number Plan a document in form and substance satisfactory to Target evidencing the foregoing assumption of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied such option by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common StockAcquiror.
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole cent.
Appears in 1 contract
Samples: Merger Agreement (Cisco Systems Inc)
Assumption of Options. (a) At the Effective TimeTime of the Merger, each Company outstanding option to purchase shares of Ridge Common Stock under the Ridge Stock Option and Global Crossing Assumed Option Plan or held by the Trusts, whether vested or unvested, will be assumed by ExodusAdaptec. Item 5.9 hereto Section 8.6 of the Ridge Disclosure Schedule sets forth a true and -------- complete list as of the date hereof of all holders of the Company Options and Global Crossing Assumed Optionsoutstanding options, including those granted under the Ridge Stock Option Plan, and includes the number of shares of Company Common Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. Ridge capital stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Optionoption. On the Closing Date, the Company Ridge shall deliver to Exodus Adaptec an updated Item 5.9, Section 8.6 of the Ridge Disclosure Schedule current as of such date. Each Company -------- Option and Global Crossing Assumed Option such option so assumed by Exodus Adaptec under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in such option and, if applicable, in the applicable Company Ridge Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, including provisions with respect to vesting, except that:
that (i) with respect to Company Options, (1) each Company Option such option will be exercisable for that number of whole shares of Exodus Adaptec Common Stock stock equal to the product (rounded down to the nearest whole share) of (A) the number of shares of Company Ridge Common Stock subject that were issuable upon exercise of such option immediately prior to such Company Option the Effective Time multiplied by (B) a fraction, the Exchange Ratio, numerator of which shall be 1,720,000 and rounded to the nearest whole denominator of which shall be the total number of shares of Exodus Ridge Common StockStock that were issuable upon exercise of options to purchase Ridge Common Stock then outstanding under the Ridge Stock Option Plan or held by the Trusts, and (2ii) the per share exercise price for the shares of Exodus Adaptec Common Stock stock issuable upon exercise of each such Company Option assumed option will be equal to the quotient determined by dividing (x) the exercise last sale price per for a share of Company Adaptec Common Stock at which such Company Option was exercisableon the trading day immediately preceding the Closing Date, by (y) as reported on the Exchange Ratio, rounded to the nearest whole cent.
(ii) Nasdaq National Market. Consistent with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent with either the terms of the Company -------- Options and Global Crossing Assumed Options Ridge Stock Option Plan and the respective documents governing themthe outstanding options under such Plan or the documents governing the outstanding options held by the Trusts, the Merger will not terminate any of the Company Options or Global Crossing Assumed Options.
(b) Options shall be as set forth in outstanding options under the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Ridge Stock Option Plan and or held by the applicable Trusts or accelerate the exercisability or vesting of such options or the shares of Adaptec Common Stock which will be subject to those options upon Adaptec's assumption of the options in the Merger. It is the intention of the parties that the options so assumed by Adaptec qualify, to the maximum extent permissible, following the Effective Time of the Merger as incentive stock option agreement immediately options as defined in Section 422 of the Code to the extent such options qualified as incentive stock options prior to the Effective Time, except that:
(i) Each New Exodus Option Time of the Merger. Adaptec shall be exercisable take all corporate action necessary to reserve for that number of whole shares of Exodus Common Stock equal to the product of (A) the issuance a sufficient number of shares of Global Crossing Ltd. stock Adaptec Common Stock for delivery upon the exercise of the options assumed by Adaptec in accordance with this Section 8.6. Adaptec will use its best efforts to file, within thirty (30) days following the Effective Date of the Merger, a registration statement on Form S-8 (or any successor form to Form S-8) so as to register the Adaptec Common Stock subject to the applicable Global Crossing Cancelled Option, multiplied options assumed by Adaptec pursuant to this Section 8.6 and shall use its best efforts to effect such registration and to maintain the effectiveness of such registration statement (B) and the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common Stock.
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise current status of the New Exodus Options will be equal to the product of (Aprospectus contained therein) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share for so long as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole centsuch options remain outstanding.
Appears in 1 contract
Assumption of Options. (a) At the Effective TimeClosing, each Company Option and Global Crossing Assumed Option outstanding option to --------------------- purchase shares of PAC under the PAC 1997 Stock Plan, whether vested or unvested, will be assumed by ExodusRational. Item 5.9 Schedule 5.3(c) hereto sets forth a true --------------- and -------- complete list as of the date hereof of all holders of outstanding options under the Company Options and Global Crossing Assumed OptionsPAC 1997 Stock Option Plan, including the number of shares of Company PAC Common Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Option. On the Closing Date, the Company shall deliver to Exodus an updated Item 5.9, current as of such dateoption. Each Company -------- Option and Global Crossing Assumed Option such option so assumed by Exodus Rational under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company PAC 1997 Stock Option Plan and the applicable stock option agreement documents governing the outstanding options under that plan, immediately prior to the Effective TimeClosing, except that:
that (i) with respect to Company Options, (1) each Company Option such option will be exercisable for that number of whole shares of Exodus Rational Common Stock equal to the product of (A) the number of shares of Company PAC Common Stock subject that were issuable upon exercise of such option immediately prior to such Company Option the Closing multiplied by a fraction, the numerator of which shall be $4.99 and the denominator of which shall be the average closing price of Rational Common Stock traded on the Nasdaq National Market as reported in the Wall Street Journal or similar reliable source for the ten (B10) trading days prior to the Exchange Ratio, Closing (such fraction is the "DEEMED EXCHANGE RATIO") and rounded down to the nearest whole number of shares of Exodus Rational Common Stock, and (2ii) the per share exercise price for the shares of Exodus PAC Common Stock issuable upon exercise of each such Company Option assumed option will be equal to the quotient determined by dividing (x) the exercise price per share of Company PAC Common Stock at which such Company Option option was exercisable, exercisable immediately prior to the Closing by (y) the Deemed Exchange Ratio, rounded to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded up to the nearest whole cent. Except as disclosed on Item 5.9, consistent Consistent with the terms of the Company -------- Options and Global Crossing Assumed Options PAC 1997 Stock Option Plan and the respective documents governing them, the Merger outstanding options under that Plan the Stock Purchase will not terminate any of the Company Options outstanding options under such plan or Global Crossing Assumed Options.
(b) Options shall be accelerate the exercisability or vesting of such options. It is the intention of the parties that the options so assumed by Rational qualify following the Closing as set forth incentive stock options as defined in Section 422 of the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and the applicable stock option agreement immediately prior Code to the Effective Time, except that:
(i) Each New Exodus Option shall be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. extent such options qualified as incentive stock subject to the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share options as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common Stock.
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole centClosing.
Appears in 1 contract
Assumption of Options. (a) At the Effective Time, each Company Option option granted by Target to purchase shares of Target Common Stock (each, a "Target Option") which is outstanding and Global Crossing Assumed Option will unexercised immediately prior thereto shall cease to represent a right to acquire shares of Target Common Stock and shall be assumed by Exodus. Item 5.9 hereto sets forth a true Acquirer and -------- complete list as of the date hereof of all holders of the Company Options and Global Crossing Assumed Options, including converted automatically into an option to purchase the number of shares of Company Acquirer Common Stock equal to the number of whole shares of Target Common Stock subject to each such Company Option oroption (including, without limitation, any shares with respect to which the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder vesting is an employee accelerated as a result of the Company, an employee of one of Merger) multiplied by the Company Parties other than the Company or a consultant Common Stock Exchange Ratio (rounded to the Companynearest whole share), the exercise or vesting schedule, acceleration provisions, at a price per share of Acquirer Common Stock equal to (i) the exercise price per share and for the term shares of each Target Common Stock purchasable pursuant to such Company Target Option or Global Crossing Assumed Option. On the Closing Date, the Company shall deliver to Exodus an updated Item 5.9, current as of such date. Each Company -------- Option and Global Crossing Assumed Option so assumed by Exodus under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Stock Option Plan and the applicable stock option agreement immediately prior to the Effective TimeTime divided by (ii) the Common Stock Exchange Ratio (rounded to the nearest whole cent), and shall otherwise be subject to the terms of the Target 1999 Stock Option Plan (the "Target Option Plan") pursuant to which such options were issued and the agreements evidencing grants thereunder and shall thereupon be assumed by Acquirer. The adjustments provided herein with respect to any options which are "incentive stock options" (as defined in Section 422 of the Code) shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code. Subject to the adjustments noted herein, the duration and other terms of each option shall be the same as the original option except that:
that all references to (i) with respect to Company Options, (1) each Company Option will be exercisable for that number of whole shares of Exodus Target Common Stock equal shall be deemed to be references to Acquirer Common Stock and (ii) the product "Company" shall be deemed to be references to Acquirer. Further, any and all vesting or performance requirements or conditions affecting any outstanding stock option shall continue to apply. Target and Acquirer shall take all action that may be necessary (under the terms of the Target Option Plan or otherwise) to effectuate the provisions of this Section 2.09. Following the Closing Date, Acquirer shall send to each holder of an assumed Target Option a written notice setting forth (Ai) the number of shares of Company Acquirer Common Stock subject to such Company Option multiplied by (B) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stockeach assumed Target Option, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Company Option will be equal to the quotient determined by dividing (xii) the exercise price per share of Company Common Stock at which such Company Option was exercisable, by (y) the Exchange Ratio, rounded to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Acquirer Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent with the terms of the Company -------- Options and Global Crossing Assumed Options and the respective documents governing them, the Merger will not terminate any of the Company Options or Global Crossing Assumed Optionsan assumed Target Option.
(b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
(i) Each New Exodus Option shall be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common Stock.
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole cent.
Appears in 1 contract
Samples: Merger Agreement (Media Metrix Inc)
Assumption of Options. (a) At the Effective TimeClosing, each Company outstanding option award to purchase Ordinary Shares under the Target Stock Option and Global Crossing Assumed Option will Plan (the "Target Options"), whether vested or unvested (as modified by the Waiver), shall be assumed by ExodusAcquiror. Item 5.9 The Sellers represent and warrant to Acquiror that Schedule 5.7 hereto sets forth a true and -------- complete list as of the date hereof of all holders of the Company Options and Global Crossing Assumed Optionsoutstanding Target Option, including the number of shares of Company Common Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) Ordinary Shares subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisionsschedule (as modified by the Waiver to be executed prior to the Closing Date), the exercise price per share and the term of each such Company Option or Global Crossing Assumed Target Option. On the Closing Date, the Company Sellers shall cause Target to deliver to Exodus Acquiror an updated Item 5.9, Schedule 5.7 hereto current as of such date. Each Company -------- Option and Global Crossing Assumed such Target Option so assumed by Exodus Acquiror under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Stock Option Plan and the applicable stock option agreement (as modified by the Waiver) immediately prior to the Effective TimeClosing, except that:
that (i) with respect to Company Options, (1) each Company Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Company Common Stock subject to such Company Option multiplied by (B) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Company Option will be equal to the quotient determined by dividing (x) the exercise price per share of Company Common Stock at which such Company Option was exercisable, by (y) the Exchange Ratio, rounded to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent with the terms of the Company -------- Options and Global Crossing Assumed Options and the respective documents governing them, the Merger will not terminate any of the Company Options or Global Crossing Assumed Options.
(b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
(i) Each New Exodus Target Option shall be exercisable for that number of whole shares of Exodus Acquiror Common Stock equal to the product of (A) the number of shares Ordinary Shares that were issuable upon exercise of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days such option immediately prior to the Closing Date, Date multiplied by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, Exchange Ratio and rounded down to the nearest whole number of shares of Exodus Acquiror Common Stock.
, and (ii) The the per share exercise price for the shares of Exodus Acquiror Common Stock issuable upon exercise of the New Exodus Options will such assumed Target Option shall be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing exercise price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days Ordinary Share at which such option was exercisable immediately prior to the Closing by the Exchange Ratio, rounded up to the nearest whole cent. Consistent with the terms of the Target Stock Option Plan and the documents governing the outstanding Target Options (including the trading day ending two Waiver), the transactions contemplated hereby shall not terminate any of the outstanding Target Options or accelerate the exercisability or vesting of such options or the Ordinary Shares which will be subject to those options upon the Acquiror's assumption of the options at the Closing. After the Closing, each assumed Target Option shall continue to be subject to Section 102 (and the regulations thereunder) of the Israeli Income Tax Ordinance ("Section 102") only to the extent the option was so subject prior to the Closing and the continuing applicability of Section 102 to such options is approved by the Israeli Tax Authorities pursuant to Section 6.3(j) hereof. Within 20 business days after the Closing Date, Acquiror shall issue to each person who, immediately prior to the Closing Date, was a holder of an outstanding Target Option a document in appropriate form evidencing the foregoing assumption of such option by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole centAcquiror.
Appears in 1 contract
Assumption of Options. (ai) At The Company's obligations with respect to each outstanding option, as set forth on Schedule 2(d) hereto, to purchase shares of common stock of the Company issued pursuant to the Company's 1997 Stock Option Plan (the "Options"), whether vested or unvested, shall, by virtue of this Agreement and without any further action of the Company, 24/7 or the holder of any Option, be assumed by 24/7 under its 1998 Stock Incentive Plan. Unless otherwise elected by 24/7 prior to the Effective Time, each Company 24/7 shall make such assumption in such manner that (i) 24/7 is a corporation "assuming a stock option in a transaction to which Section 424(a) applies" within the meaning of Section 424 of the Code or (ii) to the extent that Section 424 of the Code does not apply to such Option, 24/7 would be such a corporation were Section 424 of the Code applicable to such Option; and, if not so otherwise elected, after the Effective Time, all references to the Company's 1997 Stock Option and Global Crossing Assumed Option will Plan shall be assumed by Exodus. Item 5.9 hereto sets forth a true and -------- complete list deemed to refer to 24/7's 1998 Stock Incentive Plan as of the date hereof Effective Time by virtue of all holders of the Company Options this Agreement and Global Crossing Assumed Options, including the number of shares of Company Common Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock without any further action.
(and deemed number of shares of Company Common Stockii) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Option. On the Closing Date, the Company shall deliver to Exodus an updated Item 5.9, current as of such date. Each Company -------- Option and Global Crossing Assumed Option so assumed by Exodus 24/7 under this Agreement shall continue to have, and be subject to, the same similar terms and conditions set forth in the applicable Company Company's 1997 Stock Option Plan and the applicable stock option agreement as in effect immediately prior to the Effective Time, except that:
that (i) with respect to Company Optionssuch Option shall be governed by 24/7's 1998 Stock Incentive Plan, (1ii) each Company such Option will be exercisable for that number of whole shares of Exodus 24/7 Common Stock equal to the product of (A) the number of shares of common stock of the Company Common Stock subject that were purchasable under such Option immediately prior to such Company Option the Effective Time multiplied by (B) the Exchange Ratioquotient determined by dividing the fair market value of the common stock of the Company by the fair market value of the 24/7 Common Stock, and rounded to the nearest whole number of shares of Exodus 24/7 Common Stock, and (2iii) the per share exercise price for the shares of Exodus 24/7 Common Stock issuable upon exercise of each such Company assumed Option will be equal to the quotient determined by dividing (x) the exercise price per share of common stock of the Company Common Stock at which such Company Option was exercisable, by (y) the Exchange Ratio, rounded exercisable immediately prior to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, Effective Time multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent with the terms fair market value of the Company -------- Options and Global Crossing Assumed Options and the respective documents governing them, the Merger will not terminate any of the Company Options or Global Crossing Assumed Options.
(b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
(i) Each New Exodus Option shall be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common Stock.
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole cent.the
Appears in 1 contract
Samples: Merger Agreement (24/7 Media Inc)
Assumption of Options. (a) At As of the Effective Time, each Company Option and Global Crossing Assumed Option will be assumed by Exodus. Item 5.9 hereto sets forth a true and -------- complete list as Date of the date hereof of Reorganization, all holders of the Company Options and Global Crossing Assumed Options, including the number of shares of Company Common Stock subject to each such Company Option or, rights with respect to the Global Crossing Assumed Bank Stock issuable pursuant to the exercise of stock options (the "Bank Options") granted by the Bank under stock option plans of the Bank (the "Bank Stock Option Plans"), which are outstanding at the number Effective Date of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) the Reorganization, whether or not such Bank Options are then exercisable, shall, subject to each such optionthis section, whether be assumed by the option holder is an employee Company in accordance with the terms of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Option. On the Closing Date, the Company shall deliver to Exodus an updated Item 5.9, current as of such date. Each Company -------- Option and Global Crossing Assumed Option so assumed by Exodus under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company particular Bank Stock Option Plan under which such Bank Options were issued and the applicable stock option agreement immediately prior to by which such Bank Options are evidenced. From and after the Effective TimeDate of the Reorganization, except that:
(i) with respect to each Bank Option assumed by the Company Optionshereunder may be exercised solely for Company Stock, (1) each Company Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (Aii) the number of shares of Company Common Stock subject to such Company Bank Option multiplied by (B) the Exchange Ratio, and rounded shall be equal to the nearest whole number of shares of Exodus Common StockBank Stock subject to such Bank Option immediately prior to the Effective Date, and (2iii) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of under each such Company Bank Option will shall be equal to the quotient determined by dividing (x) the exercise price per share of Company Common Stock at which such Company Option was exercisable, by (y) the Exchange Ratio, rounded to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent with the terms of the Company -------- Options and Global Crossing Assumed Options and the respective documents governing them, the Merger will not terminate any Bank Stock as of the Company Options or Global Crossing Assumed OptionsEffective Date.
(b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and the applicable stock option agreement immediately prior to At all times after the Effective Time, except that:
(i) Each New Exodus Option Date of the Reorganization the Company shall be exercisable reserve for that number of whole shares of Exodus Common Stock equal to the product of (A) the issuance such number of shares of Global Crossing Ltd. stock subject Company Stock as shall be necessary to permit the applicable Global Crossing Cancelled Option, multiplied exercise of the Bank Options in the manner contemplated by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common StockAgreement.
(iic) The per share exercise price for shares of Exodus Common Stock issuable upon exercise It is intended that the foregoing assumption of the New Exodus Bank Options shall satisfy all the requirements under Section 424(a) of the Code and be undertaken in a manner that will be equal not constitute a "modification" as defined in Section 424(h) of the Code as to any stock option which is an incentive stock option as defined in Section 422 of the Code. All restrictions or limitations on transfer with respect to Bank Stock awarded under a Bank Stock Option Plan ("Restricted Stock"), to the product of (A) extent that such restrictions or limitations shall not have already lapsed, shall remain in full force and effect with respect to the per share exercise price Company Stock into which such Restricted Stock is converted pursuant to the Agreement. Except as otherwise provided herein, the provisions of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock Bank Option Plans that provide for the ten (10) trading days prior to and including issuance or grant of any other interest in respect of the trading day ending two days prior to capital stock of the Closing Date, by (y) Bank shall be deleted as of the average closing price per share as quoted on Effective Date of the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole centReorganization.
Appears in 1 contract
Samples: Plan of Reorganization (Mountain National Bancshares Inc)
Assumption of Options. (a) At the Effective Time, the Target Stock Option Plan, and each Company outstanding option to purchase shares of Target Common Stock under the Target Stock Option and Global Crossing Assumed Option Plan, whether vested or unvested, will be assumed by ExodusAcquiror. Item 5.9 Schedule 5.11 hereto sets forth a true and -------- complete list as of the date hereof of all holders of outstanding options under the Company Options and Global Crossing Assumed Options, Target Stock Option Plan including the number of shares of Company Common Target Capital Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Optionoption. On the Closing Date, the Company Target shall deliver to Exodus Acquiror an updated Item 5.9, Schedule 5.11 current as of such date. Each Company -------- Option and Global Crossing Assumed Option such option so assumed by Exodus Acquiror under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Target Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
that (i) with respect to Company Options, (1) each Company Option such option will be exercisable for that number of whole shares of Exodus Acquiror Common Stock equal to the product of (A) the number of shares of Company Target Common Stock subject that were issuable upon exercise of such option immediately prior to such Company Option the Effective Time multiplied by (B) the Exchange Ratio, Ratio and rounded down to the nearest whole number of shares of Exodus Acquiror Common Stock, and (2ii) the per share exercise price for the shares of Exodus Acquiror Common Stock issuable upon exercise of each such Company Option assumed option will be equal to fifty percent (50%) of the quotient determined by dividing (x) the exercise market price per share of Company Common Acquiror's common stock on the Vienna Stock Exchange as of the market close at which such Company Option was exercisablethe Effective Time. It is the intention of the parties that the options so assumed by Acquiror qualify, by (y) the Exchange Ratio, rounded to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Optionsmaximum extent permissible, following the Effective Time as incentive stock options as defined in accordance with Section 422 of the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal Code to the product of (A) the number of shares of Global Crossing Ltd. extent such options qualified as incentive stock subject to such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded options prior to the nearest whole number of shares of Exodus Common StockEffective Time. Following the Effective Time, and (2) the per share exercise price for the shares of Exodus Common Stock issuable upon exercise of Acquiror will issue to each such Global Crossing Assumed Option will be equal to the quotient determined by dividing (x) $17person who, by (y) the Exchange Ratio, rounded to the nearest whole cent. Except as disclosed on Item 5.9, consistent with the terms of the Company -------- Options and Global Crossing Assumed Options and the respective documents governing them, the Merger will not terminate any of the Company Options or Global Crossing Assumed Options.
(b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and the applicable stock option agreement immediately prior to the Effective Time, except that:
(i) Each New Exodus Time was a holder of an outstanding option under the Target Stock Option shall be exercisable for that number Plan a document in form and substance satisfactory to Target evidencing the foregoing assumption of whole shares of Exodus Common Stock equal to the product of (A) the number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied such option by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common StockAcquiror.
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole cent.
Appears in 1 contract
Assumption of Options. (a) At the Effective Time, the Company Stock --------------------- Option Plan, and each outstanding option to purchase shares of Company Common Stock under the Company Stock Option and Global Crossing Assumed Option Plan, whether vested or unvested, will be assumed by ExodusParent. Item 5.9 Notwithstanding anything to the contrary, no Merger Cash shall be paid with respect to the options so assumed. Company hereby represents and warrants to Parent that Schedule 5.10 hereto sets forth a true and -------- complete ------------- list as of the date hereof of all holders of outstanding options under the Company Options and Global Crossing Assumed OptionsStock Option Plan, including the number of shares of Company Common Capital Stock subject to each such Company Option or, with respect to the Global Crossing Assumed Options, the number of shares of Global Crossing Ltd. stock (and deemed number of shares of Company Common Stock) subject to each such option, whether the option holder is an employee of the Company, an employee of one of the Company Parties other than the Company or a consultant to the Company, the exercise or vesting schedule, acceleration provisions, the exercise price per share and the term of each such Company Option or Global Crossing Assumed Optionoption. On the day immediately preceding the Closing Date, the Company shall deliver to Exodus Parent an updated Item 5.9Schedule 5.10, current as of such datethe Closing Date. Each Company -------- Option and Global Crossing Assumed Option such option so ------------- assumed by Exodus Parent under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Stock Option Plan and the applicable stock option agreement as in effect immediately prior to the Effective Time, except that:
(i) with respect to Company Options, (1) each Company Option will be exercisable for that the number of whole shares of Exodus Parent Common Stock for which the option will be exercisable immediately after the assumption shall be equal to the product sum of (A) the number of shares of Company Common Stock subject to such Company Option option immediately prior to the Effective Time multiplied by the per share exchange ratio in effect for the conversion of one share of Company Common Stock into a fractional share of Parent Common Stock in the Merger plus (B) the Exchange Ratio, and rounded additional number of shares of Parent Common Stock determined by dividing (x) the total amount of Merger Cash which would have otherwise been payable at the Effective Time for the number of shares of Company Common Stock subject to the nearest option immediately prior to the Effective Time had those shares been actually issued and outstanding at the Effective Time by (y) the Closing Market Value, with the resulting number of shares of Parent Common Stock subject to the assumed option to be rounded down to the next whole number of shares of Exodus Parent Common Stock, and and
(2ii) the per share exercise price for the shares of Exodus Parent Common Stock issuable upon exercise of each such Company Option assumed option will be equal to the quotient determined by dividing (x) the total exercise price per share payable for the shares of Company Common Stock at which subject to such Company Option was exercisable, by (y) the Exchange Ratio, rounded option immediately prior to the nearest whole cent.
(ii) with respect to Global Crossing Assumed Options, in accordance with the applicable option agreement, (1) each Global Crossing Assumed Option will be exercisable for that number of whole shares of Exodus Common Stock equal to the product of (A) Effective Time by the number of shares of Global Crossing Ltd. stock Parent Common Stock subject to the option immediately after the assumption (as determined pursuant to subparagraph (i) immediately above), with such Global Crossing Assumed Option, multiplied by (B) 1.888, and multiplied by (C) the Exchange Ratio, and rounded to the nearest whole number of shares of Exodus Common Stock, and (2) the adjusted per share exercise price for the shares of Exodus Common Stock issuable upon exercise of each such Global Crossing Assumed Option will to be equal rounded up to the quotient determined by dividing (x) $17, by (y) the Exchange Ratio, rounded to the nearest next whole cent. Except as disclosed on Item 5.9, consistent Consistent with the terms of the Company -------- Options and Global Crossing Assumed Options Stock Option Plan and the respective documents governing themthe outstanding options under such Plan, the Merger will not terminate any of the outstanding options under the Company Options or Global Crossing Assumed Options.
(b) Options shall be as set forth in the Exodus 1998 Equity Incentive Plan or the Exodus 1999 Stock Option Plan and or accelerate the applicable exercisability or vesting of such options or the shares of Parent Common Stock which will be subject to those options upon the Parent's assumption of the options in the Merger. It is the intention of the parties that the options so assumed by Parent qualify, to the maximum extent permissible, following the Effective Time as incentive stock option agreement options as defined in Section 422 of the Code to the extent such options qualified as incentive stock options prior to the Effective Time. As soon as practicable after the Effective Time, Parent will issue to each person who, immediately prior to the Effective TimeTime was a holder of an outstanding option under the Company Stock Option Plan, except that:
(i) Each New Exodus Option shall be exercisable for that number of whole shares of Exodus Common Stock equal a document in form and substance reasonably satisfactory to the product Shareholders' Agent (as defined below) evidencing the foregoing assumption of (A) the number of shares of Global Crossing Ltd. stock subject to the applicable Global Crossing Cancelled Option, multiplied such option by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, and rounded to the nearest whole number of shares of Exodus Common StockParent.
(ii) The per share exercise price for shares of Exodus Common Stock issuable upon exercise of the New Exodus Options will be equal to the product of (A) the per share exercise price of the applicable Global Crossing Cancelled Option, multiplied by (B) the quotient determined by dividing (x) the average closing price per share as quoted on the Nasdaq National Market of Exodus Common Stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, by (y) the average closing price per share as quoted on the Nasdaq National Market of Global Crossing Ltd. stock for the ten (10) trading days prior to and including the trading day ending two days prior to the Closing Date, rounded to the nearest whole cent.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Digital Island Inc)
