Cancellation of Options. (i) At the Closing, by virtue of the Closing and without any action on the part of the Company or any Optionholder, each outstanding Cash Out Option shall be deemed cancelled and each Optionholder shall receive (in respect of any Cash Out Option held) from the Company pursuant to Section 2(f)(ii) below, in exchange for such cancellation (A) a single lump sum cash payment equal to such Optionholder’s Allocable Portion of the Distribution Amount less the aggregate Exercise Price for each such Cash Out Option held by such Optionholder (with respect to each Optionholder, the “Option Cancellation Payment”) and (B) the right to receive such Optionholder’s Allocable Portion of any additional Purchase Price or payments pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii) or Section 6(d). Each Specified Option shall fully vest and become exercisable immediately prior to the Closing (with any Shares issued in connection with the exercise of a Specified Option treated in accordance with Section 2(a)). To the extent a Specified Option is not exercised in full prior to the Closing, such Specified Option shall terminate and be cancelled for no consideration by virtue of the Closing and without any action on the part of the Company or any Optionholder. (ii) Each Optionholder shall receive with respect to each Cash Out Option, and Buyer shall cause the Company to pay through the Company’s payroll system, (x) promptly after the Closing, such Optionholder’s Option Cancellation Payment and (y) promptly after the Company has received each such amount, the amounts, if any, to which such Optionholder is entitled pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d); provided, however, that the Company shall deduct and withhold, or cause to be deducted and withheld, from such Option Cancellation Payment and the payments, if any, to be made pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d) such amounts as are required to be deducted and withheld with respect to such payments, in each case under the Code, or any provision of applicable U.S. federal, state, local or foreign Tax Laws, including the employee’s share of FICA taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensation. To the extent that such amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Optionholders in respect of which such deduction and withholding was made. For the avoidance of doubt, the Option Cancellation Payments (A) shall be deemed made on the Closing Date, (B) shall be includible in each Optionholder’s income on the Closing Date and (C) shall be treated in accordance with Section 6(d)(i)(C) below. (iii) At least three Business Days before the Closing, the Company shall contact, and provide all necessary information (including any updated information as it becomes available within the three Business Day period before the Closing) to, its payroll service provider to set-up a special payroll for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance with Section 2(b)(ii). (iv) Prior to the Closing, the Company and/or the Company’s board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any actions that are necessary to effect the treatment of the Options and provide for the deduction, withholding and remittance of any amounts required, in each case, pursuant to this Section 2(f). (v) Each Optionholder acknowledges and agrees that this Section 2(f) governs the terms of the Options in connection with the transactions contemplated by this Agreement and shall be deemed to amend each Option Agreement accordingly.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Harsco Corp), Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Cancellation of Options. (i) At the Closing, by virtue of the Closing and without any action on the part of the Company or any Optionholder, each outstanding Cash Out Option shall be deemed cancelled and each Optionholder shall receive (in respect of any Cash Out Option held) from the Company pursuant to Section 2(f)(ii) below, in exchange for such cancellation (A) a single lump sum cash payment equal to such Optionholder’s Allocable Portion of the Distribution Amount less the aggregate Exercise Price for each such Cash Out Option held by such Optionholder (with respect to each Optionholder, the “Option Cancellation Payment”) and (B) the right to receive such Optionholder’s Allocable Portion of any additional Purchase Price or payments pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii) or Section 6(d). Each Specified Option shall fully vest and become exercisable immediately prior to the Closing (with any Shares issued in connection with the exercise of a Specified Option treated in accordance with Section 2(a)). To the extent a Specified Option is not exercised in full prior to the Closing, such Specified Option shall terminate and be cancelled for no consideration by virtue of the Closing and without any action on the part of the Company or any Optionholder.
(ii) Each Optionholder shall receive with respect to each Cash Out Option, and Buyer shall cause the Company to pay through the Company’s payroll system, (x) promptly after the Closing, such Optionholder’s Option Cancellation Payment and (y) promptly after the Company has received each such amount, the amounts, if any, to which such Optionholder is entitled pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d); provided, however, that the Company shall deduct and withhold, or cause to be deducted and withheld, from such Option Cancellation Payment and the payments, if any, to be made pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d) such amounts as are required to be deducted and withheld with respect to such payments, in each case under the Code, or any provision of applicable U.S. federal, state, local or foreign Tax Laws, including the employee’s share of FICA taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensation. To the extent that such amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Optionholders in respect of which such deduction and withholding was made. For the avoidance of doubt, the Option Cancellation Payments (A) shall be deemed made on the Closing Date, (B) shall be includible in each Optionholder’s income on the Closing Date and (C) shall be treated in accordance with Section 6(d)(i)(C) below.
(iii) At least three Business Days before the Closing, the Company shall contact, and provide all necessary information (including any updated information as it becomes available within the three Business Day period before the Closing) to, its payroll service provider to set-up a special payroll for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance with Section 2(b)(ii).
(iv) Prior to the Closing, the Company and/or the Company’s board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any all actions that are necessary to effect the treatment of the Options and provide for the deductioncancellation, withholding effective at the Closing, subject to the payment as provided for herein, of all Options set forth under the heading “Cancelled Options” opposite each Option Holder’s name on Exhibit A attached hereto (the “Cancelled Options”). Immediately prior to the Closing, each Cancelled Option (as set forth on Exhibit A), shall no longer be exercisable for the purchase of shares of Common Stock but shall entitle each holder thereof, in cancellation and remittance settlement therefor, to a payment by the Company in cash, at the Closing, equal to (i) the product of (x) the total number of shares of Common Stock that would have otherwise been issuable upon the exercise of such Cancelled Option, and (y) the Per Share Equity Value, minus (ii) the aggregate exercise price payable upon exercise in full of such Cancelled Option. It shall be a condition precedent to the right of any Cancelled Option Holder to receive the consideration contemplated by the preceding sentence in respect of such Cancelled Option Holder’s Cancelled Options, that such Cancelled Option Holder execute an Option Cancellation Agreement with respect thereto, and the Company shall take all actions reasonably requested by Purchaser to provide for the execution of all Option Cancellation Agreements prior to Closing. Any payments made to the Option Holders under this Agreement, the Earn-Out Agreement and the Option Cancellation Agreements (including any amounts requiredto be distributed from the Adjustment Escrow Account to such Option Holders) shall be subject to reduction as required by applicable federal and state withholding Laws, in each case, pursuant and all such withheld amounts shall be paid to this Section 2(f).
(v) Each Optionholder acknowledges the Company and agrees thereafter remitted by the Company to the applicable Taxing Authorities promptly following the date of payment. The vesting schedule of all Cancelled Options shall be accelerated so that this Section 2(f) governs the terms 100% of the Cancelled Options in connection with the transactions contemplated by this Agreement and shall be deemed to amend each Option Agreement accordinglyvested on the Closing Date.
Appears in 2 contracts
Samples: Stock Purchase Agreement (United Components Inc), Stock Purchase Agreement (UCI Holdco, Inc.)
Cancellation of Options. Effective as of the Effective Time, the Optionholder hereby surrenders and cancels all of the Optionholder’s rights, title and interests arising under the Option Agreement in exchange for the portion of the Total Merger Consideration, if any, as they become payable and any other amount that is subsequently distributed to which the Optionholder is entitled, as determined in accordance with the terms of the Merger Agreement (provided that the Company shall reduce such payments, if any, by all applicable federal, state and local withholding taxes). From and after the Effective Time, (a) the Option Agreement shall be terminated and be of no further force and effect, and (b) none of the Company Options held by the Optionholder (whether Vested Company Options or Unvested Company Options) shall be outstanding, be in force or effect, or entitle the Optionholder to any rights other than the Optionholder’s right to receive the portion of the Total Merger Consideration with respect to any Vested Company Options, if any (as adjusted or to be adjusted pursuant to the terms of the Merger Agreement) as they become payable and any other amount that is subsequently distributed to which the Optionholder is entitled (whether pursuant to the Merger Agreement or otherwise), as determined in accordance with the terms of the Merger Agreement. Without limiting the foregoing, effective as of the Effective Time, the Optionholder acknowledges that the Optionholder (i) At the Closingreleases any right, by virtue of the Closing and without Company Options or Option Agreement, to receive any action on equity, including rights to acquire equity, in the part of the Company Surviving Corporation or any Optionholderof its Affiliates, each outstanding Cash Out Option shall be deemed cancelled and each (ii) hereby waives any rights the Optionholder shall receive (in respect of any Cash Out Option held) may have arising from the Company pursuant to Section 2(f)(ii) belowOptions that in any way conflict with or otherwise prohibit or restrict the transactions contemplated hereby, in exchange for such cancellation (A) a single lump sum cash payment equal to such Optionholder’s Allocable Portion of the Distribution Amount less the aggregate Exercise Price for each such Cash Out Option held by such Optionholder (with respect to each Optionholderincluding without limitation, the “Option Cancellation Payment”) and (B) the any notice requirements or any right to receive such Optionholder’s Allocable Portion of any additional Purchase Price be able to exercise the Company Options at or payments pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii) or Section 6(d). Each Specified Option shall fully vest and become exercisable immediately prior to the Closing (with any Shares issued in connection with the exercise of a Specified Option treated in accordance with Section 2(a)). To the extent a Specified Option is not exercised in full prior to the Closing. If the Merger Agreement is terminated for any reason, such Specified Option then the Company Options shall terminate and not be cancelled for no consideration by virtue of the Closing pursuant hereto and without any action on the part of the Company or any Optionholder.
(ii) Each Optionholder shall receive with respect to each Cash Out Option, remain in full force and Buyer shall cause the Company to pay through the Company’s payroll system, (x) promptly after the Closing, such Optionholder’s Option Cancellation Payment and (y) promptly after the Company has received each such amount, the amounts, if any, to which such Optionholder is entitled pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d); provided, however, that the Company shall deduct and withhold, or cause to be deducted and withheld, from such Option Cancellation Payment and the payments, if any, to be made pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d) such amounts as are required to be deducted and withheld with respect to such payments, in each case under the Code, or any provision of applicable U.S. federal, state, local or foreign Tax Laws, including the employee’s share of FICA taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensation. To the extent that such amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Optionholders in respect of which such deduction and withholding was made. For the avoidance of doubt, the Option Cancellation Payments (A) shall be deemed made on the Closing Date, (B) shall be includible in each Optionholder’s income on the Closing Date and (C) shall be treated effect in accordance with Section 6(d)(i)(C) belowits terms.
(iii) At least three Business Days before the Closing, the Company shall contact, and provide all necessary information (including any updated information as it becomes available within the three Business Day period before the Closing) to, its payroll service provider to set-up a special payroll for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance with Section 2(b)(ii).
(iv) Prior to the Closing, the Company and/or the Company’s board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any actions that are necessary to effect the treatment of the Options and provide for the deduction, withholding and remittance of any amounts required, in each case, pursuant to this Section 2(f).
(v) Each Optionholder acknowledges and agrees that this Section 2(f) governs the terms of the Options in connection with the transactions contemplated by this Agreement and shall be deemed to amend each Option Agreement accordingly.
Appears in 1 contract
Samples: Merger Agreement (Harte Hanks Inc)
Cancellation of Options. (ia) At the Closing, by virtue of the Closing and without any further action on the part of any of the Company Companies or any Optionholder, each outstanding Cash Out Option shall automatically be deemed cancelled and extinguished. In consideration for the cancellation and extinguishment of each Optionholder’s vested Options (including, for the avoidance of doubt, any Option that by its terms vests as a result of the transactions contemplated hereby), the Optionholder shall only have the right to receive from Holdings the following payments (to be made in respect of any Cash Out Option held) from the Company pursuant to each instance in accordance with Section 2(f)(ii) below, in exchange for such cancellation 2.7(b)): (A) at the Closing, a single lump sum cash payment equal to such Optionholder’s Allocable Portion Fully Diluted Ownership Percentage of the Distribution Amount with respect to such Optionholder’s vested Options less the aggregate Exercise Price for each such Cash Out Option held by such Optionholder Optionholder’s Options (with respect to each Optionholder, the “Option Cancellation Payment”) and ), (B) the right to receive such Optionholder’s Allocable Portion of any additional Purchase Price or payments pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii) or Section 6(d). Each Specified Option shall fully vest and become exercisable immediately prior to the Closing (with any Shares issued in connection with the exercise of a Specified Option treated in accordance with Section 2(a)). To the extent a Specified Option is not exercised in full prior to the Closing, such Specified Option shall terminate and be cancelled for no consideration by virtue of the Closing and without any action on the part of the Company or any Optionholder.
(ii) Each Optionholder shall receive with respect to each Cash Out Option, and Buyer shall cause the Company to pay through the Company’s payroll system, (x) promptly after the Closingif applicable, such Optionholder’s Option Cancellation Payment and (y) promptly after the Company has received each such amount, the amounts, if any, to which such Optionholder is entitled Fully Diluted Ownership Percentage of any Additional Seller Amount pursuant to Section 2(e)(vii2.3(g)(i)(b)), (C) if applicable such Optionholder’s Fully Diluted Ownership Percentage of any refund of Income Taxes for any Pre-Closing Tax Period, payable at the time set forth in Section 2(e)(viii), Section 2(g)(ii)11.3, and Section 6(d); provided(D) if applicable, howeversuch Optionholder’s Fully Diluted Ownership Percentage of any distribution from the Indemnity Escrow Amount, that payable at the Company time set forth in the Escrow Agreement. No consideration shall deduct be paid for the cancellation and withhold, or cause extinguishment of any unvested Options.
(b) Each payment to be deducted and withheld, from such Option Cancellation Payment and the payments, if any, to an Optionholder hereunder shall be made pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), as soon as practicable following the relevant payment triggering event (and Section 6(din all events by the first payroll date that occurs at least five Business Days following the relevant payment triggering event) such amounts as through the payroll system of Holdings or one of its Subsidiaries and shall be reduced by the amount of Option Taxes that are required to be deducted and withheld with respect to such paymentspayment. Holdings shall, in each case under a timely manner, pay all amounts withheld from payments to Optionholders to the Code, or any provision of applicable U.S. federal, state, local or foreign Tax Laws, including the employee’s share of FICA taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensationappropriate Taxing Authorities. To the extent that such amounts Option Taxes are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Optionholders in respect of which such deduction and withholding was made. For the avoidance of doubt, the Option Cancellation Payments (A) shall be deemed made on the Closing Date, Date and any corresponding Tax deductions shall be allocated to the taxable period (or portion thereof) ending on the Closing Date and (B) shall be includible in each Optionholder’s income on the Closing Date and (C) shall be treated in accordance with Section 6(d)(i)(C) belowDate.
(iiic) At least three Business Days before From the date of this Agreement until the earlier of (i) the Closing (in which case the Options will be cancelled as set forth in this Section 2.7) and (ii) the termination of this Agreement pursuant to its terms, each Optionholder agrees that it shall not, and shall not be entitled to, exercise any Options held by such Optionholder. For the avoidance of doubt, from and after the Closing, the Company Optionholders shall contact, and provide all necessary information (including cease to have any updated information rights with respect to such Optionholder’s Options except as it becomes available within the three Business Day period before the Closing) to, its payroll service provider to set-up a special payroll otherwise provided for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance with Section 2(b)(ii)under this Agreement.
(iv) Prior to the Closing, the Company and/or the Company’s board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any actions that are necessary to effect the treatment of the Options and provide for the deduction, withholding and remittance of any amounts required, in each case, pursuant to this Section 2(f).
(v) Each Optionholder acknowledges and agrees that this Section 2(f) governs the terms of the Options in connection with the transactions contemplated by this Agreement and shall be deemed to amend each Option Agreement accordingly.
Appears in 1 contract
Cancellation of Options. In connection with the Merger, effective at the Effective Time, all outstanding options to purchase Common Stock (ieach, an “Option”) At shall automatically be cancelled, without any payment therefor except as otherwise provided in this Section 2.04. Each Option, to the Closing, by virtue extent vested and unexercised as of the Closing and without Effective Time, including any action on the part of the Company or any Optionholder, each outstanding Cash Out such Option shall be deemed cancelled and each Optionholder shall receive (in respect of any Cash Out Option held) from the Company pursuant to Section 2(f)(ii) below, in exchange for such cancellation (A) a single lump sum cash payment equal to such Optionholder’s Allocable Portion of the Distribution Amount less the aggregate Exercise Price for each such Cash Out Option held by such Optionholder (with respect to each Optionholder, the “Option Cancellation Payment”) and (B) the right to receive such Optionholder’s Allocable Portion of any additional Purchase Price or payments pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii) or Section 6(d). Each Specified Option shall fully vest and become exercisable immediately prior to the Closing (with any Shares issued that vests in connection with the exercise consummation of a Specified Option treated the transactions contemplated by this Agreement either in accordance with Section 2(a)). To the extent terms of the Option Plan under which such Option was issued or as a Specified Option is not exercised in full result of the board of directors (or committee thereof) of the Company taking action, prior to the ClosingEffective Time, to accelerate the vesting of such Specified Option, shall thereafter no longer be exercisable but shall entitle the holder thereof (each, an “Option shall terminate Holder”), in cancellation and settlement therefor, to a payment in cash equal to (i) the excess, if any, of (x) the Per Share Merger Consideration over (y) the exercise price per share of Common Stock subject to such Option, multiplied by (ii) the total number of shares of Common Stock subject to such Option immediately prior to its cancellation (such payment to be cancelled for no consideration by virtue net of the Closing withholdings, if any, and without any action on interest) (such amounts payable hereunder being referred to, collectively, as the part “Option Payments”), at the same time, in the same manner and subject to the same conditions under which other Company Stockholders receive Per Share Merger Consideration; provided that all Option Payments shall be made through the applicable payroll system of the Company or any Optionholder.
(ii) Each Optionholder shall receive with respect to each Cash Out Option, and Buyer shall cause the Company to pay through the Company’s payroll system, (x) its Subsidiaries promptly after the Closing, such Optionholder’s Option Cancellation Payment and (y) promptly after the Company has received each such amount, the amounts, if any, to which such Optionholder is entitled pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii)as applicable, and Section 6(d); provided, however, that the Company shall deduct and withhold, or cause to be deducted and withheld, from such Option Cancellation Payment and the payments, if any, to be made pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d) such amounts as are required to be deducted and withheld with respect to such payments, in each case under the Code, or any provision of applicable U.S. federal, state, local or foreign Tax Laws, including the employee’s share of FICA taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensation. To the extent that such amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for subject to all purposes of this Agreement as having been paid to the Optionholders applicable employment and payroll Tax withholding in respect of which such deduction and withholding was madeaccordance with applicable Law. For the avoidance of doubt, and notwithstanding anything set forth in this Agreement to the contrary, any Option Cancellation Payments that has not vested in accordance with its terms (Aan “Unvested Option”) shall not be deemed made on entitled to receive any portion of the Merger Consideration, and shall be automatically cancelled, as of the Closing Date, (B) shall be includible with no consideration delivered in each Optionholder’s income on the Closing Date and (C) shall be treated in accordance with Section 6(d)(i)(C) belowexchange therefor.
(iii) At least three Business Days before the Closing, the Company shall contact, and provide all necessary information (including any updated information as it becomes available within the three Business Day period before the Closing) to, its payroll service provider to set-up a special payroll for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance with Section 2(b)(ii).
(iv) Prior to the Closing, the Company and/or the Company’s board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any actions that are necessary to effect the treatment of the Options and provide for the deduction, withholding and remittance of any amounts required, in each case, pursuant to this Section 2(f).
(v) Each Optionholder acknowledges and agrees that this Section 2(f) governs the terms of the Options in connection with the transactions contemplated by this Agreement and shall be deemed to amend each Option Agreement accordingly.
Appears in 1 contract
Cancellation of Options. (i) At the Closing, by virtue of pursuant to the Closing and without any action on the part of the Company or any OptionholderOption Cancellation Agreements, each outstanding Cash Out Option shall be deemed cancelled and each Optionholder shall have the right to receive (in respect of any Cash Out Option held) from the Company pursuant to Section 2(f)(ii) below2(g)(ii), in exchange for such cancellation cancellation, (A) a single lump sum cash payment equal to (x) such Optionholder’s Allocable Portion of the Closing Distribution Amount less with respect to such Optionholder’s Options minus (y) the sum of the aggregate Exercise Price for each such Cash Out Option held by Optionholder’s Options and such Optionholder Optionholder’s Allocable Portion of the Sellers’ Representative Reserve (with respect to each Optionholdercollectively, the “Option Cancellation PaymentPayments”) and ), (B) the right to receive such Optionholder’s Allocable Portion of any additional Purchase Price or payments pursuant to Section 2(e)(vii), (C) the right to receive such Optionholder’s Allocable Portion of any remaining portion of the Escrow Amount pursuant to Section 2(e)(vii) or 2(e)(viii) or the Escrow Agreement, (D) the right to receive such Optionholder’s Allocable Portion of any payments pursuant to Section 6(d)(i), Section 2(g)(ii6(d)(iii), Section 6(d)(vi), and Section 8(c), and (E) the right to receive such Optionholder’s Allocable Portion of (x) the Sellers’ Representative Reserve, from the Sellers’ Representative, and (y) any other additional Purchase Price or Section 6(d). Each Specified Option shall fully vest and become exercisable immediately prior other payments which such Optionholder is entitled to receive under the Sellers’ Representative Agreement (from amounts paid by the Sellers’ Representative to the Closing (with any Shares issued in connection with the exercise of a Specified Option treated in accordance with Section 2(aCompany)). To the extent a Specified Option is not exercised in full prior to the Closing, such Specified Option shall terminate and be cancelled for no consideration by virtue of the Closing and without any action on the part of the Company or any Optionholder.
(ii) Each Optionholder shall receive with respect to each Cash Out Option, and Buyer shall cause the Company to pay through the Company’s payroll system, (x) promptly after at the Closing, Closing such Optionholder’s Option Cancellation Payment from the Company through the Company’s payroll system and (y) promptly after the Company has received each such amount, the amountsrelevant funds, if any, the amount to which such Optionholder is entitled pursuant to Section 2(e)(vii), Section 2(e)(viii2(e)(vii), Section 2(g)(ii6(d)(i), Section 6(d)(iii), Section 6(d)(vi), Section 8(c), the Escrow Agreement and Section 6(d); providedthe Sellers’ Representative Agreement, however, that in respect of such Optionholder’s Options through the Company’s payroll system. Each Optionholder shall also receive such Optionholder’s Allocable Portion of the Sellers’ Representative Reserve from the Sellers’ Representative pursuant to the Sellers’ Representative Agreement. The Company shall deduct and withhold, or cause to be deducted and withheld, from such Option Cancellation Payment and the payments, if any, to be made to Optionholders pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii6(d)(i), Section 6(d)(iii), Section 6(d)(vi), Section 8(c), the Escrow Agreement and Section 6(d) the Sellers’ Representative Agreement, such amounts as are required to be deducted and withheld with respect to such payments, in each case under the Code, or any provision of applicable U.S. federal, state, local or foreign Tax Lawslaws, including the employeeOptionholder’s share of FICA taxes Taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensation. To the extent that such amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Optionholders in respect of which such deduction and withholding was made. For the avoidance of doubt, the Option Cancellation Payments (A) shall be deemed made on the Closing Date and any corresponding Tax deductions shall be allocated to the taxable period (or portion thereof) ending on the Closing Date, (B) shall be includible in each Optionholder’s income on the Closing Date Date, and (C) shall be treated in accordance with Section 6(d)(i)(C) below.
(iii) At least three Business Days before the Closing, the Company shall contact, and provide all necessary information (including any updated information as it becomes available within the three Business Day period before the Closing) to, its payroll service provider to set-up a special payroll for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance with Section 2(b)(ii).
(iv) Prior to the Closing, the Company and/or the Companyinclude each Optionholder’s board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any actions that are necessary to effect the treatment Allocable Portion of the Options Sellers’ Representative Reserve for purposes of determining the amount required to be deducted and provide for the deduction, withholding and remittance of any amounts required, in each case, pursuant withheld with respect to this Section 2(f)such payment.
(v) Each Optionholder acknowledges and agrees that this Section 2(f) governs the terms of the Options in connection with the transactions contemplated by this Agreement and shall be deemed to amend each Option Agreement accordingly.
Appears in 1 contract
Cancellation of Options. (i) At the Closing, by virtue of the Closing and without any action on the part of the Company or any Optionholder, each outstanding Cash Out Option shall be deemed cancelled and each Optionholder shall receive (in respect of any Cash Out Option held) from the Company pursuant to Section 2(f)(ii2.3(f)(ii) below, in exchange for such cancellation (A) a single lump sum cash payment equal to such Optionholder’s 's Allocable Portion of the Distribution Amount less the aggregate Exercise Price for each such Cash Out Option held by such Optionholder (with respect to each Optionholder, the “"Option Cancellation Payment”") and (B) the right to receive such Optionholder’s 's Allocable Portion of any additional Initial Purchase Price or payments pursuant to Section 2(e)(vii2.2(e), Section 2(e)(viii7.12(g), Section 2(g)(ii) or Section 6(d11.1(h). Each Specified Option shall fully vest and become exercisable immediately prior to the Closing (with any Shares issued in connection with the exercise of a Specified Option treated in accordance with Section 2(a)). To the extent a Specified Option is not exercised in full prior to the Closing, such Specified Option shall terminate and be cancelled for no consideration by virtue of the Closing and without any action on the part of the Company or any Optionholder.
(ii) Each Optionholder shall receive with respect to each Cash Out Option, and the Buyer shall cause the Company to pay through the Company’s 's payroll system, (x) promptly after the Closing, such Optionholder’s 's Option Cancellation Payment and (y) promptly after the Company has received each such amount, the amounts, if any, to which such Optionholder is entitled pursuant to Section 2(e)(vii2.2(e), Section 2(e)(viii), 7.12 or Section 2(g)(ii), and Section 6(d11.1(h); provided, however, that the Company shall deduct and withhold, or cause to be deducted and withheld, from such Option Cancellation Payment and the payments, if any, to be made pursuant to Section 2(e)(vii2.2(e), Section 2(e)(viii), 7.12 or Section 2(g)(ii), and Section 6(d11.1(h) such amounts as are required to be deducted and withheld with respect to such payments, in each case under the Code, or any provision of applicable U.S. federal, state, local or foreign Tax Laws, including the employee’s 's share of FICA taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensation. To the extent that such amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Optionholders in respect of which such deduction and withholding was made. For the avoidance of doubt, the Option Cancellation Payments (A) shall be deemed made on the Closing Date, (B) shall be includible in each Optionholder’s 's income on the Closing Date except as otherwise required by applicable Law and (C) shall not be treated includible in accordance with Section 6(d)(i)(C) belowthe Company's income, regardless of the source of such payment.
(iii) At least three (3) Business Days before the Closing, the Company shall contact, and provide all necessary information (including any updated information as it becomes available within the three Business Day period before the Closing) to, its payroll service provider to set-up a special payroll for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance with Section 2(b)(ii2.2(b). Notwithstanding anything in this Agreement to the contrary, all amounts due pursuant to this Agreement to an Optionholder who is not an employee of the Company at the time of such payment shall be paid directly to such Optionholder by the Company and not via payroll.
(iv) Prior to the Closing, the Company and/or the Company’s 's board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any actions that are necessary to effect (A) the treatment of the Options and provide for the deduction, withholding and remittance of any amounts required, in each case, pursuant to this Section 2(f2.3(f), and (B) the termination of the Stock Plan at Closing (including amending the Stock Plan). Following the cancellation and conversion of the Options, no Option shall be outstanding and no Optionholder shall have any rights with respect to any Option or under any Option Agreement and none of the Company, Company Subsidiaries, Buyer or their respective Affiliates shall have any obligation with respect to any Option, other than the obligation to pay the amounts contemplated by this Section 2.3. Not later than three (3) Business Days prior to the Closing, the Company shall provide Buyer with drafts of all resolutions as may be required to effectuate the provisions of this Section 2.3(f) for Buyer's reasonable review and comment.
(v) Each Optionholder acknowledges and agrees that this Section 2(f2.3(f) governs the terms of the treatment of the Options in connection with the transactions contemplated by this Agreement and shall be deemed to amend each Option Agreement accordingly.
Appears in 1 contract
Samples: Stock Purchase Agreement (Compass Group Diversified Holdings LLC)
Cancellation of Options. If and only if the Merger occurs, the Option Holder hereby agrees to surrender and cancel all of the Option Holder’s rights arising under the Option Agreements and with respect to all Options as of the closing of the Merger (ithe “Closing”) At in exchange for a payment with respect to each Option in cash of an amount, without interest, equal to the product of $0.10 multiplied by the number of shares into which such Option is exercisable (such product, the “Purchase Price”), which Purchase Price shall be paid by the Company or such other party as may be designated in the Merger Agreement (the “Paying Agent”) within five (5) business days after the Closing (provided that the Company will have the right to deduct any tax withholdings required by applicable law or regulations to be withheld and paid over to taxing authorities). If and only if the Closing occurs, from and after the date of the Closing, by virtue none of the Closing Option Holder’s Options shall be outstanding, be in force or effect or represent any rights other than the right of the Option Holder to receive the consideration contemplated by this Section 1. The Option Holder agrees to waive any notice requirements under the Plans and without the Option Agreements with respect to the transactions contemplated by the Merger Agreement. Without limiting the foregoing, the Option Holder acknowledges that it shall have no right to receive any action on the part of equity, including options to acquire equity, in the Company or any Optionholder, each outstanding Cash Out Option shall be deemed cancelled and each Optionholder shall receive (in respect of any Cash Out Option held) from its subsidiaries following the Company pursuant to Section 2(f)(ii) below, in exchange for such cancellation (A) a single lump sum cash payment equal to such Optionholder’s Allocable Portion consummation of the Distribution Amount less transactions contemplated by the aggregate Exercise Price for each such Cash Out Option held by such Optionholder (with respect to each Optionholder, the “Option Cancellation Payment”) and (B) the right to receive such Optionholder’s Allocable Portion of Merger Agreement. Notwithstanding any additional Purchase Price or payments pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii) or Section 6(d). Each Specified Option shall fully vest and become exercisable immediately prior provision to the Closing (with any Shares issued contrary in connection with the exercise of a Specified Option treated in accordance with Section 2(a)). To the extent a Specified Option is not exercised in full prior to the Closingthis Agreement, such Specified Option shall terminate and be cancelled for no consideration upon payment by virtue of the Closing and without any action on the part of the Company or any Optionholder.
(ii) Each Optionholder shall receive with respect to each Cash Out Option, and Buyer shall cause the Company to pay through the Company’s payroll system, (x) promptly after the Closing, such Optionholder’s Option Cancellation Payment and (y) promptly after the Company has received each such amount, the amounts, if any, to which such Optionholder is entitled pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d); provided, however, that the Company shall deduct and withhold, or cause to be deducted and withheld, from such Option Cancellation Payment and the payments, if any, to be made pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d) such amounts as are required to be deducted and withheld with respect to such payments, in each case under the Code, or any provision of applicable U.S. federal, state, local or foreign Tax Laws, including the employee’s share of FICA taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensation. To the extent that such amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid Paying Agent to the Optionholders in respect Option Holder of which such deduction and withholding was made. For the avoidance of doubt, the Option Cancellation Payments (A) shall be deemed made on the Closing Date, (B) shall be includible in each Optionholder’s income on the Closing Date and (C) shall be treated in accordance with Section 6(d)(i)(C) below.
(iii) At least three Business Days before the ClosingPurchase Price, the Company shall contact, and provide all necessary information (including have no further obligation or liability of any updated information as it becomes available within the three Business Day period before the Closing) to, its payroll service provider nature to set-up a special payroll for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance Holder, including with Section 2(b)(ii).
(iv) Prior respect to the Closing, the Company and/or the Company’s board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any actions that are necessary to effect the treatment of the Options and provide for the deduction, withholding and remittance of any amounts required, in each case, pursuant to this Section 2(f)Purchase Price.
(v) Each Optionholder acknowledges and agrees that this Section 2(f) governs the terms of the Options in connection with the transactions contemplated by this Agreement and shall be deemed to amend each Option Agreement accordingly.
Appears in 1 contract
Cancellation of Options. Prior to the Effective Time, (ia) At the Closing, by virtue Company will elect to cause all of the Closing outstanding options, warrants or other rights to purchase Shares, whether or not granted under the Option Plans, that are outstanding (each an “Option” and without any action on collectively, the part “Options”) and unvested to become fully vested prior to the Effective Time (other than those owned by former employees or consultants who by the express terms of the Company Options have no further rights in or any Optionholderto such Options), each outstanding Cash Out Option shall be deemed cancelled and each Optionholder shall receive (in respect of any Cash Out Option heldb) from the Company pursuant shall cause all of the Options that are unexercised and outstanding immediately prior to Section 2(f)(iithe Effective Time to be cancelled immediately prior to the Effective Time and shall terminate all Options and the Option Plans immediately prior to or as of the Effective Time, and (c) below, each holder of such unexercised Options (each an “Optionholder” and collectively the “Optionholders”) will be entitled to the following consideration in exchange for such cancellation (subject to receipt by Parent of the items described in Section 8.3(m)):
(i) cash consideration to be paid promptly after the Effective Time, by check, in an amount equal to (A) a single lump sum cash payment equal to such Optionholder’s Allocable Portion (1) the quotient of (x) the Option Cancellation Cash Consideration Base divided by (y) the Option Base, multiplied by (2) the number of Shares issuable upon exercise of the Distribution Amount less the aggregate Exercise Price for each such Cash Out Option Options held by such Optionholder Optionholder, minus (with respect 3) the aggregate exercise price for the Shares issuable upon exercise of the Options held by such Optionholder, which aggregate amounts are set forth and shall conclusively be deemed to each be the amounts on Exhibit E, minus (B) the Optionholder’s Escrow Consideration (which shall be calculated by multiplying (1) the Escrow Consideration Per Share by (2) the total number of the Optionholder’s Option Shares) (such amount in this clause (i), the “Option Cancellation PaymentCash Consideration”) and );
(Bii) the right to receive such Optionholder’s Allocable Portion Escrow Consideration (as calculated in clause (i) above and as conclusively set forth on Exhibit E), which shall be deposited in escrow as security for the indemnification obligations of the Company Stockholders and the Optionholders under this Agreement, and shall be disbursed in accordance with this Agreement and the Escrow Agreement (the aggregate Escrow Consideration deposited by each Company Stockholder and Optionholder into such escrow is set forth on Exhibit D); and
(iii) the Optionholder’s allocable portion (which allocable portion shall be based on the proportional ownership of each Optionholder’s Option Shares to all Shares and Option Shares and shall be as conclusively set forth on Exhibit F-2) of any additional Purchase Price or payments pursuant to Section 2(e)(vii)Earn Out Payment, which if payable in accordance with this Agreement (including, without limitation, Section 2(e)(viii), Section 2(g)(ii3.6 and Article 9) or Section 6(d). Each Specified Option shall fully vest and become exercisable immediately prior to be distributed by the Closing (with any Shares issued in connection with the exercise of a Specified Option treated Stockholders’ Representative in accordance with Section 2(a))3.6. To The holder of record of each Option, the extent a Specified number of Shares for which the Option held by such holder is not exercised exercisable and the exercise price thereof is set forth on Exhibit E. Any and all amounts payable to or for the benefit of Optionholders pursuant to this Section 3.2 shall be paid in full prior the amounts set forth on Exhibit E and shall be subject to the ClosingCompany’s, Parent’s or the Surviving Corporation’s withholding from such Specified Option amount any and all required withholding Tax. The Company and the Principal Stockholders shall terminate and be cancelled for no consideration by virtue of the Closing and without any action on the part of the Company or any Optionholder.
(ii) Each Optionholder shall receive with respect to each Cash Out Option, and Buyer shall cause the Company to pay through the Company’s payroll system, (x) promptly after the Closing, such Optionholder’s Option Cancellation Payment and (y) promptly after the Company has received each such amount, the amounts, if any, to which such Optionholder is entitled pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d); provided, however, that the Company shall deduct and withhold, take or cause to be deducted taken all actions necessary so that on and withheld, from such Option Cancellation Payment and after the payments, if any, Effective Time no Person shall have any option to be made purchase Shares or any other equity interest in the Company or the Surviving Corporation pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d) such amounts as are required to be deducted and withheld with respect to such payments, in each case under the Code, any outstanding Options. Effective on or any provision of applicable U.S. federal, state, local or foreign Tax Laws, including the employee’s share of FICA taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensation. To the extent that such amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid prior to the Optionholders in respect of which such deduction and withholding was made. For the avoidance of doubt, the Option Cancellation Payments (A) shall be deemed made on the Closing Date, (B) shall be includible in each Optionholder’s income on the Closing Date and (C) shall be treated in accordance with Section 6(d)(i)(C) below.
(iii) At least three Business Days before the ClosingEffective Time, the Company shall contactwill terminate the provisions of all plans, and provide all necessary information (including any updated information as it becomes available within the three Business Day period before the Closing) toprograms, its payroll service provider to set-up a special payroll for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance with Section 2(b)(ii).
(iv) Prior to the Closing, or arrangements of the Company and/or pursuant to which any Person shall have any right to acquire or participate in changes in value of equity securities of the Company’s board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any actions that are necessary to effect the treatment of the Options and provide for the deduction, withholding and remittance of any amounts required, in each case, pursuant to this Section 2(f).
(v) Each Optionholder acknowledges and agrees that this Section 2(f) governs the terms of the Options in connection with the transactions contemplated by this Agreement and shall be deemed to amend each Option Agreement accordingly.
Appears in 1 contract
Samples: Merger Agreement (Ediets Com Inc)
Cancellation of Options. The Company shall cause:
(i) At the Closing, by virtue of the Closing and without any action on the part of the Company or any Optionholder, each all Options outstanding Cash Out Option shall be deemed cancelled and each Optionholder shall receive (in respect of any Cash Out Option held) from the Company pursuant to Section 2(f)(ii) below, in exchange for such cancellation (A) a single lump sum cash payment equal to such Optionholder’s Allocable Portion of the Distribution Amount less the aggregate Exercise Price for each such Cash Out Option held by such Optionholder (with respect to each Optionholder, the “Option Cancellation Payment”) and (B) the right to receive such Optionholder’s Allocable Portion of any additional Purchase Price or payments pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii) or Section 6(d). Each Specified Option shall fully vest and become exercisable immediately prior to the Closing Effective Time under the Stock Purchase Plan, whether or not then exercisable, to be canceled at the Effective Time and all payroll deductions (with any Shares issued the "Payroll Amount") plus accrued interest to be refunded to each such Option holder after such cancellation, plus payment of an amount in connection with the exercise of a Specified Option treated in accordance with Section 2(a)). To the extent a Specified Option cash equal to that amount which is not exercised in full prior equal to the Closingexcess, such Specified Option shall terminate and be cancelled for no consideration by virtue if any, of the Closing and without any action on Merger Consideration over the part purchase price of the Company or any Optionholder.Common Stock at the Effective Time (the "Option Price"), multiplied by the amount obtained by dividing the aggregate Payroll Amount of such Option holder at the Effective Time by the Option Price; and
(ii) Each Optionholder shall receive with respect the TJH Option and all Options outstanding immediately prior to the Effective Time under the Equity Plan and the Directors Plan, whether or not then exercisable, to immediately vest and be canceled at the Effective Time, and each Cash Out holder of an Option under such plan or agreement will be entitled to receive, after the Effective Time from the Surviving Corporation, for each share of Common Stock subject to any such Option, and Buyer shall cause an amount in cash equal to the Company to pay through the Company’s payroll system, (x) promptly after the Closing, such Optionholder’s Option Cancellation Payment and (y) promptly after the Company has received each such amount, the amountsexcess, if any, of the Merger Consideration over the per share exercise price of such Option, without interest (the "Delta Payment"); PROVIDED, that any Options held by Xxxxxx X. Xxxxx will be canceled but no Delta Payment will be paid on such Options. Parent shall cause the Paying Agent to which mail to each holder of an Option under such Optionholder is entitled plan or agreement appropriate instructions and documents to effect the cancellation of such Options and the cash payment thereof. All amounts payable pursuant to this Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d); provided, however, that the Company shall deduct and withhold, or cause to be deducted and withheld, from such Option Cancellation Payment and the payments, if any, to be made pursuant to Section 2(e)(vii), Section 2(e)(viii), Section 2(g)(ii), and Section 6(d) such amounts as are required to be deducted and withheld with respect to such payments, in each case under the Code, or any provision of applicable U.S. federal, state, local or foreign Tax Laws, including the employee’s share of FICA taxes and any applicable state, local or foreign payroll Taxes normally imposed on an employee with respect to compensation. To the extent that such amounts are so deducted and withheld, such deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Optionholders in respect of which such deduction and withholding was made. For the avoidance of doubt, the Option Cancellation Payments (A2.03(b)(ii) shall be deemed made on the Closing Date, (B) subject to all applicable withholding taxes and shall be includible in each Optionholder’s income on paid as soon as practicable following the Closing Date and (C) shall be treated in accordance with Section 6(d)(i)(C) belowEffective Time.
(iii) At least three Business Days before the Closing, the Company shall contact, If and provide all necessary information (including any updated information as it becomes available within the three Business Day period before the Closing) to, its payroll service provider to set-up a special payroll for the Option Cancellation Payments to enable such payroll service provider to automatically pay the Option Cancellation Payments promptly after the Buyer has funded the aggregate Option Cancellation Payments in accordance with Section 2(b)(ii).
(iv) Prior to the Closing, extent that the Company and/or the Company’s board of directors (or the compensation committee thereof, if applicable) shall adopt any resolutions and take any actions that are necessary TJH Option has not been exercised prior to effect the treatment of the Options and provide for the deduction, withholding and remittance of any amounts required, in each case, pursuant to this Section 2(f).
(v) Each Optionholder acknowledges and agrees that this Section 2(f) governs the terms of the Options its cancellation in connection with the transactions contemplated by this Merger, the Company will pay to Xxxxxx X. Xxxxxx the Delta Payment plus the sum of $145,000, prorated to the extent of any prior exercise, and any amount the Company has drawn under any letter of credit described in the Amendment to Agreement between the Company and shall be deemed Xx. Xxxxxx dated March 4, 1998, prorated to amend each Option Agreement accordinglythe extent of any prior exercise, so as to avoid any duplicate payments to Xx. Xxxxxx.
Appears in 1 contract
Samples: Merger Agreement (Asahi America Inc)
