Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At the Effective Time, by virtue of the Merger and without any action on the part of any holders thereof, each Company Compensatory Award, whether vested or unvested, that is outstanding immediately prior to the Effective Time shall be cancelled and extinguished and, in exchange therefor, each former holder of any such Company Compensatory Award shall have the right to receive an amount in cash, without interest, equal to the product of (i) the aggregate number of shares of Company Common Stock subject to each such Company Compensatory Award as of the Effective Time and (ii) the excess, if any, of the Merger Consideration over any per share exercise or purchase price of such Company Compensatory Award immediately prior to such cancellation (such amounts payable hereunder being referred to as the “Compensatory Award Payments”). From and after the Effective Time, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right to receive Company Common Stock or other Securities or any other right of any former holder thereof, except solely for the right of such holder thereof to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration shall be cancelled without any consideration therefor immediately prior to the Effective Time and the holder thereof shall have no further rights with respect thereto. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay the Compensatory Award Payments (through the payroll of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following the Effective Time, without interest, except in the case that any such awards are subject to Section 409A of the Code and are required to be paid out in accordance with Section 409A. (b) Prior to the Effective Time, the Company shall provide such notice, if any, to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Time. (c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hill International, Inc.), Agreement and Plan of Merger (Hill International, Inc.)
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity Upon the terms and subject to the conditions set forth in connection with the Merger and the Transactions. At the Effective Timethis Agreement, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or any holders thereofholder of such Company Restricted Stock Units, each Company Compensatory Award, whether vested or unvested, Restricted Stock Unit that is remains outstanding as of immediately prior to the Effective Time shall be cancelled and extinguished and, treated as set forth in exchange therefor, each former holder of any such Company Compensatory Award shall have the right to receive an amount in cash, without interest, equal to the product of this Section 2.7(d).
(i) the aggregate number of shares of Each Company Common Restricted Stock subject Unit that is outstanding and either (A) vests automatically according to each such Company Compensatory Award as of its terms at the Effective Time and or (iiB) the excess, if any, is held by a member of the Merger Consideration over any per share exercise or purchase price of such Company Compensatory Award immediately prior to such cancellation Board (such amounts payable hereunder being referred to as the each, a “Compensatory Award PaymentsVested Restricted Stock Unit”). From and after the Effective Time, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right to receive Company Common Stock or other Securities or any other right of any former holder thereof, except solely for the right of such holder thereof to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration ) shall be cancelled without any consideration therefor immediately prior to and terminated as of the Effective Time and the holder thereof shall have no further rights with respect theretoreceive, subject to Section 2.8(e), (1) an amount in cash (without interest) equal to the product of (x) the Cash Consideration multiplied by (y) the total number of shares of Company Common Stock represented by such Vested Restricted Stock Unit and (2) a number of shares of Parent Common Stock equal to the product of (x) the Stock Consideration multiplied by (y) the total number of shares of Company Common Stock represented by such Vested Restricted Stock Unit immediately prior to the Effective Time (such consideration, the “Restricted Stock Unit Consideration”). The Surviving Corporation shall, and Parent shall cause pay or provide to each holder of a Vested Restricted Stock Unit the Surviving Corporation to, pay Restricted Stock Unit Consideration described in the Compensatory Award Payments immediately preceding sentence (through the payroll Surviving Corporation’s or a Subsidiary of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following Corporation’s payroll system, or the Effective Time, without interest, except in the case that any such awards are subject to Section 409A Surviving Corporation’s or a Subsidiary of the Code Surviving Corporation’s equity award administrator, as may be applicable and are required to be paid out in accordance with Section 409A.the Surviving Corporation’s payroll practices for service providers located outside of the United States) on either (A) the first regularly scheduled payroll date after the Closing or (B) if such first payroll date is scheduled for payment prior to the fifth Business Day after the Closing, the second regularly scheduled payroll date after the Closing, in any such case, consistent with past practices, including accounting for all applicable withholding.
(bii) Prior Each Company Restricted Stock Unit that is outstanding and unvested as of the Effective Time and not described in Section 2.7(d)(i) (an “Unvested Restricted Stock Unit”) shall, on the terms and subject to the conditions set forth in this Agreement, be assumed by Parent and shall be converted into a Parent restricted stock unit award (each, an “Assumed Restricted Stock Unit Award”) representing that number of whole shares of Parent Common Stock equal to the product of (A) the number of shares of Company Common Stock represented by such Unvested Restricted Stock Unit immediately prior to the Effective Time multiplied by (B) the Equity Award Exchange Ratio, with the result rounded down to the nearest whole number of shares of Parent Common Stock. Except as provided in this Section 2.7(d)(ii), each Assumed Restricted Stock Unit Award will be subject to the same terms and conditions applicable to the Unvested Restricted Stock Units immediately prior to the Effective Time, including the Company shall provide such noticesame vesting restrictions and continued service requirements, if any, except for reasonable administrative changes that are not materially adverse to the extent required under the terms of any holder of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend Unvested Restricted Stock Unit or changes to which the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Timeconsents.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 2 contracts
Samples: Merger Agreement (Xcerra Corp), Merger Agreement (Cohu Inc)
Company Compensatory Awards. (a) Neither Parent nor Immediately prior to the Company Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At the Effective Time, by virtue each share of the Merger outstanding Restricted Stock (other than any Deferred Stock Award) shall, automatically and without any action required on the part of any holders the holder thereof, each become fully vested and all restrictions and reacquisition rights thereon shall lapse, and thereafter all shares of Company Compensatory Award, whether vested or unvested, that is outstanding immediately prior to the Effective Time Common Stock represented thereby shall be cancelled considered outstanding for all purposes under this Agreement and extinguished and, in exchange therefor, each former holder of any such Company Compensatory Award shall only have the right to receive receive, in accordance with the terms of this Agreement, an amount in cashcash equal to the Common Stock Consideration (less applicable Taxes required to be withheld with respect to such vesting or payment as provided in Section 3.5).
(b) All unvested Deferred Stock Awards shall, without interestas of immediately before the Company Merger Effective Time, become vested and no longer subject to restrictions. All Deferred Stock Awards shall, at the Company Merger Effective Time, be adjusted and converted into a right of the holder to have allocated to the holder’s account under the Deferred Compensation Plan an amount denominated in cash equal to the product of (i) the aggregate number of shares of Company Common Stock subject allocated to each such Company Compensatory Award account as of the Company Merger Effective Time and (ii) the excessCommon Stock Consideration, if any, of the Merger Consideration over any per share exercise or purchase price of such Company Compensatory Award immediately prior to such cancellation (such amounts payable hereunder being referred to as the “Compensatory Award Payments”). From and after the Effective Time, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist represent a right to receive a number of shares of Company Common Stock. The Company shall amend the Deferred Compensation Plan to allow for payment with respect to Deferred Stock Awards as provided in this Section 3.4. The Deferred Compensation Plan shall otherwise be administered in accordance with its terms, and no longer represent the payments under the Deferred Compensation Plan shall be made in accordance with the timing set forth in the Deferred Compensation Plan and the applicable payment elections for participants in such plan, subject to any right to receive Company Common Stock or other Securities or any other right terminate the Deferred Compensation Plan and accelerate distributions of any former holder thereof, except solely for the right of such holder thereof participant account balances pursuant to the payment terms of the Deferred Compensation Plan and applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to Law.
(c) At or greater than the Merger Consideration shall be cancelled without any consideration therefor immediately prior to the Effective Time and the holder thereof shall have no further rights with respect thereto. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay the Compensatory Award Payments (through the payroll of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following the Effective Time, without interest, except in the case that any such awards are subject to Section 409A of the Code and are required to be paid out in accordance with Section 409A.
(b) Prior to the Company Merger Effective Time, the Company Board (or any committee thereof) shall provide such notice, if any, adopt any resolutions and take any actions which are necessary to effectuate the extent required under the terms provisions of any this Section 3.4.
(d) As of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Merger Effective Time, the Long-Term Incentive Plan shall terminate, and (iv) the Company shall ensure that after following the Company Merger Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans Long-Term Incentive Plan, Deferred Compensation Plan or other plans, programs or arrangements shall have any right thereunder to acquire any Securities equity securities of the Company, the Surviving Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective TimeSubsidiary thereof.
(ce) Following the Original Agreement Date, At the Company caused Merger Effective Time, Parent shall deposit with the Surviving Company cash in the amount necessary, together with the other funds of the Surviving Company, to make the payments required under this Section 3.4, including all accrued and unpaid cash dividends on Company Compensatory Awards, as applicable, and Parent shall cause the Surviving Company to make the payments required under this Section 3.4 through the Surviving Company’s payroll as promptly as practicable, but in no event later than five Business Days after the Company ESPP Merger Effective Time, or at such later time as necessary to be terminated and no new offering period shall commence following avoid a violation and/or adverse Tax consequences under Section 409A of the date Code or comply with the terms of this Agreementthe Deferred Compensation Plan. For the avoidance of doubt, any shares of Company Common Stock issued Parent’s obligation to participants deposit cash shall include amounts sufficient to satisfy the Company’s obligation to withhold from, and pay over to applicable taxing authorities, amounts with respect to the payments required under the Company ESPP shall be treated in accordance with the terms of this Section 2.63.4.
Appears in 2 contracts
Samples: Merger Agreement (American Campus Communities Inc), Merger Agreement (American Campus Communities Inc)
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At Prior to the Effective Time, by virtue the Company Board of Directors (or the appropriate committee of the Merger Company Board of Directors) shall adopt such resolutions and shall take such other actions as are required to approve and authorize the actions necessary to effect the transactions contemplated by this Section 2.4.
(b) Each option to acquire shares of Company Common Stock (a “Company Option” and collectively, “Company Options”) granted under the Company’s 2004 Long-Term Stock Incentive Plan, as amended (the “Company Equity Plan”), that is outstanding and unvested as of the day that is twenty (20) days prior to the Closing Date shall become vested as of such date. Each Company Option that is outstanding and unexercised immediately prior to the Effective Time shall be cancelled as of the Effective Time and, in consideration of such cancellation, the holder thereof shall be entitled to receive promptly, but in no event later than fifteen (15) days after the Effective Time, a cash payment in respect of such cancellation from the Surviving Corporation in an amount equal to the product of (x) the excess, if any, of the Per Share Price over the exercise price of each such Company Option and (y) the number of unexercised shares of Company Common Stock then subject thereto (such payment, if any, to be net of applicable Taxes withheld pursuant to Section 2.5). Each Company Option for which, as of the Effective Time, the Per Share Price does not exceed the exercise price of such Company Option shall be cancelled without any action on cash payment being made in respect thereof.
(c) Each restricted stock unit granted under the part of any holders thereofCompany Equity Plan (a “Company Restricted Stock Unit” and collectively, each “Company Compensatory Award, whether vested or unvested, Restricted Stock Units”) that is outstanding immediately prior to the Effective Time shall be cancelled and extinguished as of the Effective Time and, in exchange thereforconsideration of such cancellation, each former the holder of any such Company Compensatory Award thereof shall have the right be entitled to receive promptly, but in no event later than fifteen (15) days after the Effective Time, a cash payment in respect of such cancellation from the Surviving Corporation in an amount in cash, without interest, equal to the product of (ix) the aggregate Per Share Price and (y) the number of shares of Company Common Stock then subject to each such Company Compensatory Award as of the Effective Time and (ii) the excess, if any, of the Merger Consideration over any per share exercise or purchase price of such Company Compensatory Award immediately prior to such cancellation thereto (such amounts payable hereunder being referred payment to as be net of applicable Taxes withheld pursuant to Section 2.5).
(d) Each outstanding performance restricted stock unit or performance share award granted under the Company Equity Plan (a “Compensatory Award PaymentsCompany Performance Share Award” and collectively, “Company Performance Share Awards”). From and after the Effective Time, all Company Compensatory Awards shall no longer be exercisable or ) that is outstanding and shall automatically cease to exist and no longer represent any right to receive Company Common Stock or other Securities or any other right of any former holder thereof, except solely for the right of such holder thereof to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration shall be cancelled without any consideration therefor immediately prior to the Effective Time and shall be cancelled as of the Effective Time and, in consideration of such cancellation, the holder thereof shall have no further rights with respect thereto. The Surviving Corporation shallbe entitled to receive promptly, and Parent shall cause the Surviving Corporation to, pay the Compensatory Award Payments (through the payroll of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more later than five fifteen (515) Business Days for amounts not to be paid through payroll) following days after the Effective Time, without interesta cash payment in respect of such cancellation from the Surviving Corporation in an amount equal to the product of (x) the Per Share Price and (y) the number of shares of Company Common Stock then subject thereto, except in assuming target performance has been met with respect to such Company Performance Share Award (such payment to be net of applicable Taxes withheld pursuant to Section 2.5).
(e) Each share of Company Common Stock granted under the case Company Equity Plan that any such awards are is subject to Section 409A vesting or performance conditions (a “Company Restricted Share” and collectively, “Company Restricted Shares”) that is outstanding as of the Code and are required to be paid out in accordance with Section 409A.
(b) Prior immediately prior to the Effective Time, the Company Time shall provide such notice, if any, to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be become fully vested as of the Effective Time in accordance with the and shall be treated as a share of Company Equity Plans Common Stock for purposes of Section 2.1(c) of this Agreement.
(which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iiif) terminate each of the Company Equity Plans as As of the Effective Time, the Company Equity Plan shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company shall be cancelled (without prejudice to any amounts to which holders thereunder become entitled following the Effective Time pursuant to this Section 2.4).
(g) With respect to the Company’s Basic Stock Purchase Plan and Supplementary Stock Purchase Plan (collectively, the “ESPPs”), the Company shall as soon as practicable after the date hereof take all actions necessary to provide that (i) no new participants shall be permitted to participate in the ESPPs, (ii) participants in the ESPPs may not increase their rate of payroll deductions, (iii) each participant’s outstanding right to purchase shares of Company Common Stock under the ESPPs shall be suspended immediately following the end of the purchase or offering period in effect on the date of this Agreement or, if earlier, the date that is two business days prior to the Closing Date; provided that each participant’s accumulated payroll deductions under the ESPPs as of the date of the end of such purchase or offering period shall be used to purchase shares of Company Common Stock on the business day immediately prior to the Closing Date in accordance with the terms of the ESPPs, and the shares of Company Common Stock purchased thereunder shall be cancelled at the Effective Time and converted into the right to receive the Merger Consideration pursuant to Section 2.1(c); and, as promptly as reasonably practicable following the purchase of shares of Company Common Stock in accordance with this Section 2.4(g), the funds, if any, that remain in a participant’s accounts after such purchase shall be returned to the participant. The Company shall cause the ESPPs to terminate at the Effective Time, and no further purchase rights shall be granted or exercised under the ESPPs thereafter.
(h) With respect to the Company’s Equity-Based Award / Recognition Plan (the “Recognition Plan”), the Company shall as soon as practicable after the date hereof take all actions necessary to provide that (i) no new awards shall be granted under the Recognition Plan and (ivii) any awards outstanding under the Recognition Plan on the date hereof that have not been settled by their terms as of the Effective Time shall be cancelled as of the Effective Time and converted into the right to receive an amount per share of Company Common Stock subject to such award equal to the Merger Consideration pursuant to Section 2.1(c), which such amount shall be paid to the award holder in accordance with and subject to the terms of the Recognition Plan. The Company shall cause the Recognition Plan to terminate at the Effective Time, and no further awards shall be granted under the Recognition Plan thereafter.
(i) The Company shall send out any requisite notices to effectuate the foregoing and shall use reasonable best efforts to obtain all consents necessary to cash out and cancel all Company Options, Company Performance Share Awards, Company Restricted Stock Units and Company Restricted Shares or to ensure that that, after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans person shall have any right thereunder to acquire any Securities of under the Company or to receive any Equity Plan, except as set forth herein. Notwithstanding the payment or benefit timing described previously in this Section 2.4 with respect to any award previously granted under cash payment made pursuant to this Section 2.4, the Company, Parent and the Surviving Corporation retain the right to defer payment of any such amounts to the extent necessary to comply with the requirements of Section 409A of the Company Equity PlansInternal Revenue Code of 1986, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions amended (the form “Code”), and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Timeregulations promulgated thereunder.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 2 contracts
Samples: Merger Agreement (Hospira Inc), Merger Agreement (Pfizer Inc)
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At the Effective Time, Time by virtue of the Merger and without any action on the part of any the holders thereof, each Company Compensatory Award, whether vested or unvested, that is outstanding immediately prior to the Effective Time shall shall, immediately prior to the Effective Time, be cancelled and extinguished and, in exchange therefor, each former holder of any such Company Compensatory Award shall have the right to receive an amount in cash, without interest, cash equal to the product of (ix) the aggregate number of shares of Company Common Stock subject to each such Company Compensatory Award as of immediately prior to the Effective Time and (iiy) the excess, if any, of the Merger Consideration over less any per share exercise or purchase price of such Company Compensatory Award immediately prior to such cancellation (such amounts payable hereunder being referred to as the “Compensatory Award Payments”). From and after the Effective Time, all any such Company Compensatory Awards Award shall no longer be exercisable by the former holder thereof or outstanding and shall automatically cease to exist and no longer otherwise represent any the right to receive Company Common Stock or other Securities or any other right of any former holder thereofequity securities, except solely for the right of but shall only entitle such holder thereof only to the payment of the applicable Compensatory Award Payment; provided, however, provided that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration shall be cancelled without any consideration therefor immediately prior to the Effective Time and the holder thereof shall have no further rights with respect theretotherefor. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay the Compensatory Award Payments (through the payroll of the Surviving Corporation for any employees thereof) shall be paid as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following the Effective Time, without interestinterest and reduced by the amount of any withholding that is required under applicable Tax Law, except in the case that any such awards are subject to Section 409A of the Code and are required to be paid out in accordance with Section 409A.3.11.
(b) Prior to the Effective Time, the Company shall provide take any and all such notice, if any, to the extent required actions as are necessary (under the terms of any of the Company Benefit Plans (Plans, applicable award agreements, applicable Law or otherwise) to effect the foregoing provisions of this Section 3.7, including any Company Equity Plans), obtain any necessary Consents, adopt by amending the applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Time.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 2 contracts
Samples: Merger Agreement (Amplify Snack Brands, INC), Merger Agreement (Hershey Co)
Company Compensatory Awards. (a) Neither Parent nor Immediately prior to the Company Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At the Effective Time, by virtue of the Merger each outstanding Time Vested Restricted Stock shall, automatically and without any action required on the part of any holders the holder thereof, each become fully vested and all restrictions and reacquisition rights thereon shall lapse, and thereafter all shares of Company Compensatory Award, whether vested or unvested, that is outstanding immediately prior to the Effective Time Common Stock represented thereby shall be cancelled considered outstanding for all purposes under this Agreement and extinguished and, in exchange therefor, each former holder of any such Company Compensatory Award shall only have the right to receive receive, in accordance with the terms of this Agreement, an amount in cash, without interest, cash equal to the product Common Stock Consideration (less applicable Taxes required to be withheld with respect to such vesting or payment as provided in Section 3.6).
(b) Immediately prior to the Company Merger Effective Time, each outstanding Performance Stock Unit which remains subject to vesting based all or in part on future achievement of (i) the aggregate performance goals, shall become earned and vested with respect to that number of shares of Company Common Stock subject to such Performance Stock Unit in accordance with the terms of such Performance Stock Unit (but without applying any pro-ration for the number of days of employment during the shortened Performance Period ending on Closing Date) based on the achievement of the applicable performance goals set forth in the award agreement governing such Performance Stock Unit (as determined by the compensation committee of the Board) as measured from the beginning of the applicable performance period through the Closing Date (or the latest practicable date prior thereto that performance can be assessed) (each such Company Compensatory Award as of earned Performance Stock Unit, and each other outstanding Performance Stock Unit for which the Effective Time and (ii) the excess, if any, of the Merger Consideration over any per share exercise or purchase price of such Company Compensatory Award immediately applicable performance period completed prior to such cancellation (such amounts payable hereunder being referred the Closing Date but which remains subject to as the service vesting conditions, an “Compensatory Award PaymentsEarned PSU”). From and after At the Company Merger Effective Time, all Company Compensatory Awards each Earned PSU shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any canceled in exchange for the right to receive Company an amount in cash (without interest, and less any applicable income and employment withholding Taxes) equal to the Common Stock or other Securities or any other right Consideration for each Earned PSU. For the avoidance of any former holder thereofdoubt, except solely for the right of such holder thereof to the payment of the applicable Compensatory Award Payment; provided, however, each Performance Stock Unit that any Company Compensatory Award does not become an Earned PSU in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration accordance with this Section 3.5(b) shall be cancelled terminate without any consideration therefor immediately prior to the Company Merger Effective Time.
(c) Each Market Cap Restricted Stock Unit issued and outstanding as of immediately prior to the Company Merger Effective Time that is an Earned RSU and each Time Vested RSU (whether vested or unvested) issued and outstanding as of immediately prior to the holder thereof Company Merger Effective Time shall have no further rights with respect thereto. The Surviving Corporation shall, and Parent shall cause be canceled in exchange for the Surviving Corporation to, pay the Compensatory Award Payments right to receive an amount in cash (through the payroll of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following the Effective Time, without interest, except in and less any applicable income and employment withholding Taxes) equal to the case Common Stock Consideration for each Earned RSU or Time Vested RSU (as applicable). Any issued and outstanding Market Cap Restricted Stock Unit that any such awards are subject is not an Earned RSU as of immediately prior to Section 409A of the Code and are required Company Merger Effective Time shall terminate without consideration immediately prior to be paid out in accordance with Section 409A.the Company Merger Effective Time.
(bd) Prior At or prior to the Company Merger Effective Time, the Company Board (or any committee thereof) shall provide such notice, if any, adopt any resolutions and take any actions which are necessary to effectuate the extent required under the terms provisions of any this Section 3.5.
(e) As of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Merger Effective Time, the Long-Term Incentive Plan and (iv) the equity compensation plan under the Partnership Agreement shall terminate, and the Company shall ensure that after following the Company Merger Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans Long-Term Incentive Plan, the equity compensation plan under the Partnership Agreement or other plans, programs or arrangements shall have any right thereunder to acquire any Securities equity securities of the Company, the Surviving Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective TimeSubsidiary thereof.
(cf) Following the Original Agreement Date, At the Company caused Merger Effective Time, Parent shall deposit with the Surviving Company cash in the amount necessary, together with the other funds of the Surviving Company, to make the payments required under this Section 3.5, including all accrued and unpaid cash dividends on Company Compensatory Awards, as applicable, and Parent shall cause the Surviving Company to make the payments required under this Section 3.5 through the Surviving Company’s payroll as promptly as practicable, but in no event later than five Business Days after the Company ESPP Merger Effective Time, or at such later time as necessary to be terminated and no new offering period shall commence following avoid a violation and/or adverse Tax consequences under Section 409A of the date of this AgreementCode. For the avoidance of doubt, any shares of Company Common Stock issued Parent’s obligation to participants deposit cash shall include amounts sufficient to satisfy the Company’s obligation to withhold from, and pay over to applicable taxing authorities, amounts with respect to the payments required under the Company ESPP shall be treated in accordance with the terms of this Section 2.63.5.
Appears in 1 contract
Samples: Merger Agreement (Preferred Apartment Communities Inc)
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with Prior to the Merger and the Transactions. At the Effective Offer Acceptance Time, by virtue the Company Board (or the appropriate committee of the Merger Company Board) shall adopt such resolutions and without shall take such other actions as are required to approve the transactions contemplated by this Section 2.4. Prior to adopting any action on such resolutions, the part of Company shall provide Parent with a reasonable opportunity to review and comment upon such resolutions and shall consider any holders thereof, each comments from Parent thereon in good faith; provided that nothing herein shall be construed to obligate the Company Compensatory Awardto adopt any such comment if the Company determines in good faith such an adoption would not be in the Company’s best interests.
(b) Each option (a “Company Option”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall, as of the Effective Time, be canceled and surrendered to the Company and the holder thereof shall be cancelled and extinguished andthen become entitled to receive solely, in exchange thereforfull satisfaction of the rights of such holder with respect thereto, each former holder of any such Company Compensatory Award shall have the right to receive an amount in cash, without interest, a lump-sum cash payment equal to the product of (i) the aggregate number of shares of Company Common Stock subject to each for which such Company Compensatory Award as Option has not been exercised (assuming the full achievement of the Effective Time any applicable performance conditions) and (ii) the excess, if any, of the Per Share Merger Consideration over any the exercise price per share exercise or purchase price of such Company Compensatory Award Option. Each Company Option with an exercise price per share that is equal to or in excess of the Per Share Merger Consideration shall not be entitled to any payment under this Agreement at or any time after the Closing and shall be canceled for no consideration and without any payment therefor.
(c) Each award of restricted stock units (a “Company RSU”), whether vested or unvested, that is outstanding immediately prior to such cancellation (such amounts payable hereunder being referred to the Effective Time shall, as the “Compensatory Award Payments”). From and after of the Effective Time, all be canceled and surrendered to the Company Compensatory Awards and the holder thereof shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right then become entitled to receive solely, in full satisfaction of the rights of such holder with respect thereto, a lump-sum cash payment equal to the product of (i) the number of shares of Company Common Stock or other Securities or any other right of any former holder thereof, except solely for the right of subject to such holder thereof to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration shall be cancelled without any consideration therefor RSU immediately prior to the Effective Time and (ii) the holder thereof shall have no further rights with respect thereto. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay the Compensatory Award Payments (through the payroll of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following the Effective Time, without interest, except in the case that any such awards are subject to Section 409A of the Code and are required to be paid out in accordance with Section 409A.Per Share Merger Consideration.
(bd) Prior to As of the Effective Time, the Company’s 2009 Stock Incentive Plan (the “Company Equity Plan”) shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company shall provide such noticebe canceled without any ongoing liability to the Surviving Corporation and without any consideration payable therefor, if any, except to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Time2.4.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 1 contract
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Each Company Compensatory Award Option or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At the Effective Time, by virtue of the Merger and without any action on the part of any holders thereof, each Company Compensatory Award, whether vested or unvested, portion thereof that is outstanding (whether or not vested) immediately prior to the Effective Time shall (including, for the avoidance of doubt, all Company Options held by members of the Company Board who are not also employees of the Company as of the date hereof) shall, as of the Effective Time, be cancelled and extinguished and, in exchange thereforconsideration thereof, each former the holder of any such Company Compensatory Award Option shall have the right to receive an amount (such amount, the “Company Option Consideration”) in cashcash equal to, without interestsubject to applicable Tax withholding, equal to the product of (i) the excess, if any, of the Merger Consideration over the exercise price per share of Company Common Stock underlying such Company Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Option. Notwithstanding anything in this Section 2.7(a) to the contrary, any Company Option that has an exercise price per share of Company Common Stock that is greater than or equal to the Merger Consideration shall be cancelled at the Effective Time for no consideration.
(b) Each Company RSU Award that is outstanding (whether or not vested) immediately prior to the Effective Time (including, for the avoidance of doubt, all Company RSU Awards held by members of the Company Board who are not also employees of the Company as of the date hereof) shall, as of the Effective Time, be cancelled and, in consideration thereof, the holder of such Company RSU Award shall receive an amount (such amount, the “Company RSU Award Consideration”) in cash equal to, subject to applicable Tax withholding, the Merger Consideration in respect of each share of Company Common Stock subject to such Company RSU Award.
(c) Each Company Restricted Stock Award that is outstanding (whether or not vested) immediately prior to the Effective Time (including, for the avoidance of doubt, all Company Restricted Stock Awards held by members of the Company Board who are not also employees of the Company as of the date hereof) shall, as of the Effective Time, be cancelled and, in consideration thereof, the holder of such Company Restricted Stock Award shall receive an amount (such amount, the “Company Restricted Stock Award Consideration”) in cash equal to, subject to applicable Tax withholding, the Merger Consideration in respect of each share of Company Common Stock subject to such Company Restricted Stock Award.
(d) Each Company Stock Appreciation Right that is outstanding and unexercised immediately prior to the Effective Time (including, for the avoidance of doubt, all Company Stock Appreciation Rights held by members of the Company Board who are not also employees of the Company as of the date hereof) and has an exercise price per share of Company Common Stock that is less than the Merger Consideration shall be cancelled effective as of the Effective Time and converted in to the right to receive, following the Effective Time, an amount (such amount, the “Company Stock Appreciation Right Consideration”) in cash equal to, subject to applicable Tax withholding, the product of (i) the amount by which the Merger Consideration exceeds the applicable exercise price per share of Company Common Stock of such Company Stock Appreciation Right, and (ii) the aggregate number of shares of Company Common Stock subject to each such Company Compensatory Award Stock Appreciation Right. Each Company Stock Appreciation Right that is outstanding and unexercised as of the Effective Time and (ii) the excess, if any, of the Merger Consideration over any per share exercise or purchase price of such Company Compensatory Award immediately prior to such cancellation (such amounts payable hereunder being referred to as the “Compensatory Award Payments”). From and after the Effective Time, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right to receive Company Common Stock or other Securities or any other right of any former holder thereof, except solely for the right of such holder thereof to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or per share of Company Common Stock that is greater than the Merger Consideration shall be cancelled effective as of the Effective Time without the payment of consideration.
(e) The Surviving Corporation or Parent, or an Affiliate thereof, as applicable, shall pay the holders of Company Compensatory Awards the cash payments described in Section 2.7(a), Section 2.7(b), Section 2.7(c) and Section 2.7(d) as soon as reasonably practicable after the Closing Date, but in any event no later than the first regular payroll date of the Surviving Corporation or Parent, or an Affiliate thereof, as applicable, that is at least 10 Business Days following the Closing Date or such calendar quarter, as the case may be. Any payments made pursuant to this Section 2.7(d) shall be made by a payroll payment and subject to applicable withholding of Taxes, except that, if any such payment cannot be made through the payroll system or payroll provider of the Surviving Corporation or Parent, or an Affiliate thereof, as applicable, then the Surviving Corporation or Parent, or such Affiliate, as applicable, will issue a check for such payment to such holder (less applicable withholding Taxes). Notwithstanding any other provision of this Section 2.7 or otherwise in this Agreement to the contrary, the provisions of this Section 2.7 requiring the payment of consideration therefor to the holders of interests referred to in subparagraphs (a) through (e), inclusive, shall only apply with respect to interests that are not included in the determination of outstanding shares immediately prior to the Effective Time and the holder thereof shall have no further rights with respect thereto. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay the Compensatory Award Payments (through the payroll of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not apply to be paid through payroll) following the Effective Time, without interest, except in the case that any such awards interests which are subject entitled to the Merger Consideration pursuant to the provisions of Section 409A of the Code and are required to be paid out in accordance with Section 409A.2.5 hereof.
(bf) Prior to the Effective Time, the Company shall provide such notice, if any, to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans Board or any outstanding awards or award agreements thereunder or otherwise, and take all other authorized committee thereof shall adopt such resolutions as may reasonably be appropriate or necessary required in its discretion to effectuate the actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in by this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Time.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 1 contract
Samples: Merger Agreement (Diversicare Healthcare Services, Inc.)
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Offer, the Merger and the other Transactions. At the Effective Time, by virtue of the Merger and without any action on the part of any holders thereof, each Company Compensatory Award, whether vested or unvested, that is outstanding immediately prior to the Effective Time shall be cancelled and extinguished and, in exchange therefor, each former holder of any such Company Compensatory Award shall have the right to receive an amount in cash, without interest, equal to the product of (i) the aggregate number of shares of Company Common Stock subject to each such Company Compensatory Award as of the Effective Time and (ii) the excess, if any, of the Merger Consideration over any per share exercise or purchase price of such Company Compensatory Award immediately prior to such cancellation (such amounts payable hereunder being referred to as the “Compensatory Award Payments”). From and after the Effective Time, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right to receive Company Common Stock or other Securities or any other right of any former holder thereof, except solely for the right of such holder thereof to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration shall be cancelled without any consideration therefor immediately prior to the Effective Time and the holder thereof shall have no further rights with respect thereto. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay the Compensatory Award Payments (through the payroll of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following the Effective Time, without interest, except in the case that any such awards are subject to Section 409A of the Code and are required to be paid out in accordance with Section 409A.
(b) Prior to the Effective Time, the Company shall provide such notice, if any, to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.73.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Time.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence As soon as practicable following the date of this Agreement, the Company shall take all actions necessary or required under the Company ESPP and subject to applicable Law to cause the Company ESPP not to commence an offering period to purchase Company Common Stock that would otherwise begin on or after the date of this Agreement or to accept payroll deductions with respect to any such offering period that would otherwise begin on or after the date of this Agreement to be used to purchase Company Common Stock under the Company ESPP, and on or promptly following the date hereof, Company shall cause the Company ESPP to be terminated. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.63.6.
Appears in 1 contract
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At Prior to the Effective Time, by virtue the Company Board (or the appropriate committee of the Merger Company Board) shall adopt such resolutions and shall take such other actions as are required to approve the transactions contemplated by this Section 2.4. Prior to adopting any such resolutions, the Company shall provide Parent with a reasonable opportunity to review and comment upon such resolutions and shall consider any comments from Parent thereon in good faith.
(b) Each option (other than an option granted to a non-employee director of the Company or Xxxxxx International, Inc. (“Xxxxxx”)) to acquire shares of Company Common Stock granted under the Company’s 2015 Incentive Plan (each such option, a “Company Option,” and such plan, the “Company Equity Plan”) that is outstanding and unexercised immediately prior to the Effective Time shall be cancelled as of immediately prior to the Effective Time and exchanged as of the Effective Time for an award of stock options (“Parent Options”) exercisable in accordance with their terms for Parent Ordinary Shares or Parent ADSs (as determined by Parent). Each such award of Parent Options will have the same terms and conditions (including, with respect to vesting) as applied to the award of Company Options for which it was exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement and changes to administrative or ministerial provisions as in the reasonable and good faith determination of Parent are appropriate to conform the administration of Parent Options with other awards under Parent’s equity plans, and except as described below; provided that each award of Parent Options granted in exchange for an award of Company Options that was subject to vesting based on achievement of a per share price of Company Common Stock or any other performance-based vesting condition as of immediately prior to the Effective Time shall vest solely based on the continued employment or other engagement by Parent or its subsidiaries of the grantee of the Company Options for which such award was exchanged through the end of the performance period or periods that applied to such Company Options as of immediately prior to the Effective Time (subject to such accelerated vesting as would apply upon a qualifying termination of employment or other service with respect to such grantee following a change in control). The exercise price per Parent Ordinary Share or Parent ADS, as applicable, underlying each such award of Parent Options will be the “initial per-share exercise price” determined as prescribed in the following sentence, rounded up to the nearest whole cent. For purposes of the preceding sentence, the “initial per-share exercise price” for any Parent Option shall be determined such that (i) equals (ii), where (i) is the ratio of (x) such initial per-share exercise price to (y) the Fair Market Value of a Parent Ordinary Share or Parent ADS, as applicable, and (ii) is the ratio of (X) the per-share exercise price of the Company Option for which it was exchanged, to (Y) the Fair Market Value of a share of Company Common Stock. The number of Parent Ordinary Shares or Parent ADSs, as applicable, underlying each award of Parent Options, determined as of the exchange, shall be that number of whole Parent Ordinary Shares or Parent ADSs, as applicable, which, if such award were exercised in full immediately upon such exchange on a cashless basis (without regard to the extent to which such Parent Option is then vested or exercisable and without any action regard to Taxes), would result in the delivery of Parent Ordinary Shares or Parent ADSs, as applicable, with an aggregate value (assumed for this purpose to be equal on a per-share basis to the Fair Market Value of a Parent Ordinary Share or Parent ADS, as applicable) as nearly as possible equal to, but not exceeding, the aggregate value of the shares of Company Common Stock (assumed for this purpose to be equal to the Fair Market Value of a share of Company Common Stock) that would have been delivered had the Company Option for which such award was exchanged been exercised in full as of immediately prior to the Effective Time on a cashless basis (without regard to the extent to which such Company Option was then vested or exercisable and without regard to Taxes). The foregoing adjustment will be subject to such modifications, if any, as are required to cause the substitution contemplated by this Section 2.4(b) to be made in a manner consistent with exemption from Section 409A of the Code.
(c) Each option to acquire shares of Company Common Stock granted to a non-employee director of the Company or Baxter (a “Non-Employee Director Option”) under the Company Equity Plan that is outstanding and unexercised immediately prior to the Effective Time and for which the (i) Per Share Cash Consideration, plus (ii) the value of the Per Share Stock Consideration (determined based on the part Fair Market Value of any holders thereofa Parent ADS) (the sum of (i) plus (ii), each the “Gross Settlement Amount”) exceeds the exercise price of such Non-Employee Director Option shall be cancelled as of immediately prior to the Effective Time and, in consideration of such cancellation, the holder thereof shall be entitled to receive promptly, but in no event later than ten (10) days after the Effective Time, a payment of cash and Parent ADSs in respect of such cancellation from the Company Compensatory Award, whether in an amount equal to the Per Share Merger Consideration (and which amount shall be divided between cash and Parent ADSs in the same proportion as the Per Share Merger Consideration) that he or she would have received had he or she exercised such Non-Employee Director Option in full (without regard to the extent to which the Non-Employee Director Option was vested or unvestedexercisable as of immediately prior to the Effective Time) on a cashless basis immediately prior to the Effective Time (assuming for this purpose that the value of a share of Company Common Stock as of the time of such deemed cashless exercise was equal to the Fair Market Value of a share of Company Common Stock). Each Company Option for which, as of the Effective Time, the Gross Settlement Amount does not exceed the exercise price of such Company Option shall be cancelled without any consideration being paid in respect thereof.
(d) Each award of restricted stock units (other than an award of restricted stock units granted to a non-employee director of the Company or Baxter) granted under the Company Equity Plan (a “Company Restricted Stock Unit”) that is outstanding immediately prior to the Effective Time shall be cancelled as of immediately prior to the Effective Time and extinguished andexchanged as of the Effective Time for an award of restricted stock units payable in Parent Ordinary Shares or Parent ADSs, in exchange therefor, each former holder as determined by Parent (“Parent Restricted Stock Units”). Each such award of any such Company Compensatory Award shall Parent Restricted Stock Units will have the right same terms and conditions (including, with respect to receive an amount vesting) as applied to the award of Company Restricted Stock Units for which it was exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement, except for such other administrative or ministerial changes as in cashthe reasonable and good faith determination of Parent are appropriate to conform the administration of Parent Restricted Stock Units with other awards under Parent’s equity plans, without interestand except as provided in the following sentence. The number of Parent Ordinary Shares or Parent ADSs, as applicable, underlying the Parent Restricted Stock Units subject to each such award shall be that number of whole Parent Ordinary Shares or Parent ADSs, as applicable, that is equal to the product “initial share number” determined as prescribed in the following sentence, rounded down to the nearest whole number of Parent Ordinary Shares or Parent ADSs, as applicable. For purposes of the preceding sentence, the “initial share number” shall be equal to (ii)(x) the aggregate Fair Market Value of a share of Company Common Stock, multiplied by (y) the number of shares of Company Common Stock subject to each underlying the award for which such Company Compensatory Award as of the Effective Time and Parent Restricted Stock Units were exchanged, divided by (ii) the excessFair Market Value of a Parent Ordinary Share or Parent ADS, if any, as applicable.
(e) Each award of restricted stock units granted under the Company Equity Plan to a non-employee director of the Merger Consideration over any per share exercise Company or purchase price of such Company Compensatory Award Baxter (a “Non-Employee Director Restricted Stock Unit”) that is outstanding immediately prior to the Effective Time, without regard to the extent then vested, shall be cancelled as of immediately prior to the Effective Time and, in consideration of such cancellation cancellation, the holder thereof shall be entitled to receive promptly, but in no event later than ten (such amounts payable hereunder being referred to as the “Compensatory Award Payments”). From and 10) days after the Effective Time, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right to receive the Per Share Merger Consideration in respect of each share of Company Common Stock underlying his or other Securities or any other right her award of any former holder thereof, except solely for Non-Employee Director Restricted Stock Units.
(f) Each award of performance stock units granted under the right of such holder thereof Company Equity Plan (a “Company Performance Stock Unit”) that is outstanding immediately prior to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration Effective Time shall be cancelled without any consideration therefor as of immediately prior to the Effective Time and exchanged as of the holder thereof Effective Time for an award of Parent Restricted Stock Units. The number of Parent Ordinary Shares or Parent ADSs, as applicable, underlying the Parent Restricted Stock Units subject to each such award shall have no further rights be that number of whole Parent Ordinary Shares or Parent ADSs, as applicable, that is equal to the “initial share number” determined as prescribed in the following sentence, rounded down to the nearest whole number of Parent Ordinary Shares or Parent ADSs, as applicable. For purposes of the preceding sentence, the “initial share number” shall be equal to (i) (x) Fair Market Value of a share of Company Common Stock, multiplied by (y) the number of shares of Company Common Stock underlying the award (assuming that each of the performance goals with respect thereto. The Surviving Corporation shall, thereto has been achieved at the greater of (A) 100% of the target level and Parent shall cause (B) actual performance levels measured as of the Surviving Corporation to, pay the Compensatory Award Payments (Effective Time and extrapolated through the payroll end of the Surviving Corporation applicable performance period) for any employees thereofwhich such Parent Restricted Stock Units were exchanged, divided by (ii) the Fair Market Value of a Parent Ordinary Share or Parent ADS. Subject to the foregoing, each such award of Parent Restricted Stock Units will have the same terms and conditions as applied to the award of Company Performance Stock Units for which it was exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement and except for administrative and ministerial changes as in the reasonable and good faith determination of Parent are appropriate to conform the administration of Parent Restricted Stock Units with other awards under Parent’s equity plans; provided, that an award of Parent Restricted Stock Units will vest solely based on the continued employment or other engagement by Parent or its subsidiaries of the grantee of the Company Performance Stock Units for which such award was exchanged through the end of the performance period or periods that applied to such Company Performance Stock Units as of immediately prior to the Effective Time (subject to such accelerated vesting as would apply upon a qualifying termination of employment or other service with respect to such grantee following a change in control).
(g) As soon as reasonably practicable following the date of this Agreement, the Company shall (but i) amend the Company’s Employee Stock Purchase Plan (the “ESPP”) effective immediately such that no additional Offering (as defined in no event more than five (5the ESPP) Business Days for amounts not to shall be paid through payroll) following commenced between the date of this Agreement and the Effective Time, without interest, except (ii) provide that each Offering that would otherwise extend beyond the Effective Time will have an Offering End Date (as defined in the case ESPP) that any such awards are subject is seven (7) business days prior to Section 409A the anticipated Effective Time, (iii) provide that each ESPP participant’s accumulated contributions under the ESPP shall be used to purchase shares of the Code and are required to be paid out Company Common Stock in accordance with Section 409A.the ESPP, (iv) provide that the applicable purchase price for shares of Company Common Stock (as a percentage of the fair market value of Company Common Stock) shall not be decreased below the levels set forth in the ESPP as of the date of this Agreement, (v) provide that no participant in the ESPP may increase his or her rate of payroll deductions used to purchase shares of Company Common Stock under the ESPP after the date of this Agreement, (vi) provide that only participants in the ESPP as of the date of this Agreement may continue to participate in the ESPP after the date of this Agreement and (vii) provide that the ESPP shall terminate in its entirety at the Effective Time and no further rights shall be granted or exercised under the ESPP thereafter.
(bh) Prior to As of the Effective Time, the Company Equity Plan and ESPP shall provide such noticeterminate and all rights under any provision of any other plan, if anyprogram or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company shall be cancelled without consideration payable therefor, except to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Time2.4.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 1 contract
Samples: Merger Agreement (Baxalta Inc)
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Each Company Compensatory Award Option or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At the Effective Time, by virtue of the Merger and without any action on the part of any holders thereof, each Company Compensatory Award, whether vested or unvested, portion thereof that is outstanding vested and exercisable immediately prior to the Effective Time shall (or would become vested and exercisable by the terms of such Company Option as a result of the Transactions, including, for the avoidance of doubt, all Company Options held by members of the Company Board who are not also employees of the Company as of the date hereof) (each such Company Option, a “Vested Company Option”) shall, as of the Effective Time, be cancelled and extinguished and, in exchange thereforconsideration thereof, each former the holder of any such Vested Company Compensatory Award Option shall have the right to receive an amount (such amount, the “Company Option Consideration”) in cashcash equal to, without interestsubject to applicable Tax withholding, equal to the product of (i) the aggregate number of shares of Company Common Stock subject to each such Company Compensatory Award as of the Effective Time and (ii) the excess, if any, of the Merger Consideration over any the exercise price per share exercise or purchase price of Company Common Stock underlying such Company Compensatory Award immediately prior Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such cancellation Company Option. Each outstanding Company Option that is not a Vested Company Option (each such amounts payable hereunder being referred to Company Option, an “Unvested Company Option”) shall, as the “Compensatory Award Payments”). From and after of the Effective Time, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right to receive Company Common Stock or other Securities or any other right of any former holder cancelled and, in consideration thereof, except solely for the right holder of such holder thereof Unvested Company Option will receive the Company Option Consideration, subject to and conditioned on the same terms and conditions (including any terms and conditions relating to vesting and acceleration thereof, but excluding any terms and conditions related to exercise) as applicable to the payment of Unvested Company Option to which such Company Option Consideration relates. Notwithstanding anything in this Section 2.7(a) to the applicable Compensatory Award Payment; providedcontrary, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price per share of Company Common Stock that is greater than or equal to or greater than the Merger Consideration shall be cancelled without any consideration therefor at the Effective Time for no consideration.
(b) Each Company RSU Award that is vested immediately prior to the Effective Time and (or would become vested by the terms of such Company RSU Award as a result of the Transactions, including, for the avoidance of doubt, all Company RSU Awards held by members of the Company Board who are not also employees of the Company as of the date hereof) (each such Company RSU Award, a “Vested Company RSU Award”) shall, as of the Effective Time, be cancelled and, in consideration thereof, the holder thereof of such Company RSU Award shall have no further rights with receive an amount (such amount, the “Company RSU Award Consideration”) in cash equal to, subject to applicable Tax withholding, the Merger Consideration in respect theretoof each share of Company Common Stock subject to such Company RSU Award. Each outstanding Company RSU Award that is not a Vested Company RSU Award (each such Company RSU Award, an “Unvested Company RSU Award”) shall, as of the Effective Time, be cancelled and, in consideration thereof, the holder of such Unvested Company RSU Award will receive the Company RSU Award Consideration, subject to and conditioned on the same terms and conditions (including any terms and conditions relating to vesting and acceleration thereof) as applicable to the Unvested Company RSU Award to which such Company RSU Award Consideration relates.
(c) The Surviving Corporation shallor Parent, and Parent or an Affiliate thereof, as applicable, shall cause the Surviving Corporation to, pay the holders of Company Compensatory Award Payments (through Awards the payroll of the Surviving Corporation for any employees thereofcash payments described in Section 2.7(a) and Section 2.7(b) as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following after the Effective TimeClosing Date, without interest, except in the case of Vested Company Options and Vested Company RSU Awards, or the final day of the calendar quarter in which the applicable vesting date occurs, in the case of Unvested Company Options and Unvested Company RSU Awards, but in any event no later than the earlier of (i) the first regular payroll date of the Surviving Corporation or Parent, or an Affiliate thereof, as applicable, that is at least 10 Business Days following the Closing Date or such calendar quarter, as the case may be, and (ii) March 15 of the calendar year immediately after the Closing Date or such applicable vesting date, as the case may be. Any payments made pursuant to this Section 2.7(c) shall be made by a payroll payment and subject to applicable withholding of Taxes, except that, if any such awards are subject to Section 409A payment cannot be made through the payroll system or payroll provider of the Code and are Surviving Corporation or Parent, or an Affiliate thereof, as applicable, then the Surviving Corporation or Parent, or such Affiliate, as applicable, will issue a check for such payment to such holder (less applicable withholding Taxes). To receive a payment in accordance with this Section 2.7(c), the holder of any such unvested Company Compensatory Award shall be required to be paid out in accordance with Section 409A.employed or provide services through the applicable vesting date, but not, for the avoidance of doubt, through the applicable payment date.
(bd) Prior to the Effective Time, the Company shall provide such notice, if any, to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans Board or any outstanding awards or award agreements thereunder or otherwise, and take all other authorized committee thereof shall adopt such resolutions as may reasonably be appropriate or necessary required in its discretion to effectuate the actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in by this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Time.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 1 contract
Samples: Merger Agreement (Leaf Group Ltd.)
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At Prior to the Effective Time, by virtue the Company Board (or the appropriate committee of the Merger Company Board) shall adopt such resolutions and shall take such other actions as are required to approve the transactions contemplated by this Section 2.4. Prior to adopting any such resolutions, the Company shall provide Parent with a reasonable opportunity to review and comment upon such resolutions and shall consider any comments from Parent thereon in good faith.
(b) Each option (other than an option granted to a non-employee director of the Company or Xxxxxx International, Inc. ("Xxxxxx")) to acquire shares of Company Common Stock granted under the Company's 2015 Incentive Plan (each such option, a "Company Option," and such plan, the "Company Equity Plan") that is outstanding and unexercised immediately prior to the Effective Time shall be cancelled as of immediately prior to the Effective Time and exchanged as of the Effective Time for an award of stock options ("Parent Options") exercisable in accordance with their terms for Parent Ordinary Shares or Parent ADSs (as determined by Parent). Each such award of Parent Options will have the same terms and conditions (including, with respect to vesting) as applied to the award of Company Options for which it was exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement and changes to administrative or ministerial provisions as in the reasonable and good faith determination of Parent are appropriate to conform the administration of Parent Options with other awards under Parent's equity plans, and except as described below; provided that each award of Parent Options granted in exchange for an award of Company Options that was subject to vesting based on achievement of a per share price of Company Common Stock or any other performance-based vesting condition as of immediately prior to the Effective Time shall vest solely based on the continued employment or other engagement by Parent or its subsidiaries of the grantee of the Company Options for which such award was exchanged through the end of the performance period or periods that applied to such Company Options as of immediately prior to the Effective Time (subject to such accelerated vesting as would apply upon a qualifying termination of employment or other service with respect to such grantee following a change in control). The exercise price per Parent Ordinary Share or Parent ADS, as applicable, underlying each such award of Parent Options will be the "initial per-share exercise price" determined as prescribed in the following sentence, rounded up to the nearest whole cent. For purposes of the preceding sentence, the "initial per-share exercise price" for any Parent Option shall be determined such that (i) equals (ii), where (i) is the ratio of (x) such initial per-share exercise price to (y) the Fair Market Value of a Parent Ordinary Share or Parent ADS, as applicable, and (ii) is the ratio of (X) the per-share exercise price of the Company Option for which it was exchanged, to (Y) the Fair Market Value of a share of Company Common Stock. The number of Parent Ordinary Shares or Parent ADSs, as applicable, underlying each award of Parent Options, determined as of the exchange, shall be that number of whole Parent Ordinary Shares or Parent ADSs, as applicable, which, if such award were exercised in full immediately upon such exchange on a cashless basis (without regard to the extent to which such Parent Option is then vested or exercisable and without any action regard to Taxes), would result in the delivery of Parent Ordinary Shares or Parent ADSs, as applicable, with an aggregate value (assumed for this purpose to be equal on a per-share basis to the Fair Market Value of a Parent Ordinary Share or Parent ADS, as applicable) as nearly as possible equal to, but not exceeding, the aggregate value of the shares of Company Common Stock (assumed for this purpose to be equal to the Fair Market Value of a share of Company Common Stock) that would have been delivered had the Company Option for which such award was exchanged been exercised in full as of immediately prior to the Effective Time on a cashless basis (without regard to the extent to which such Company Option was then vested or exercisable and without regard to Taxes). The foregoing adjustment will be subject to such modifications, if any, as are required to cause the substitution contemplated by this Section 2.4(b) to be made in a manner consistent with exemption from Section 409A of the Code.
(c) Each option to acquire shares of Company Common Stock granted to a non-employee director of the Company or Baxter (a "Non-Employee Director Option") under the Company Equity Plan that is outstanding and unexercised immediately prior to the Effective Time and for which the (i) Per Share Cash Consideration, plus (ii) the value of the Per Share Stock Consideration (determined based on the part Fair Market Value of any holders thereofa Parent ADS) (the sum of (i) plus (ii), each the "Gross Settlement Amount") exceeds the exercise price of such Non-Employee Director Option shall be cancelled as of immediately prior to the Effective Time and, in consideration of such cancellation, the holder thereof shall be entitled to receive promptly, but in no event later than ten (10) days after the Effective Time, a payment of cash and Parent ADSs in respect of such cancellation from the Company Compensatory Award, whether in an amount equal to the Per Share Merger Consideration (and which amount shall be divided between cash and Parent ADSs in the same proportion as the Per Share Merger Consideration) that he or she would have received had he or she exercised such Non-Employee Director Option in full (without regard to the extent to which the Non-Employee Director Option was vested or unvestedexercisable as of immediately prior to the Effective Time) on a cashless basis immediately prior to the Effective Time (assuming for this purpose that the value of a share of Company Common Stock as of the time of such deemed cashless exercise was equal to the Fair Market Value of a share of Company Common Stock). Each Company Option for which, as of the Effective Time, the Gross Settlement Amount does not exceed the exercise price of such Company Option shall be cancelled without any consideration being paid in respect thereof.
(d) Each award of restricted stock units (other than an award of restricted stock units granted to a non-employee director of the Company or Baxter) granted under the Company Equity Plan (a "Company Restricted Stock Unit") that is outstanding immediately prior to the Effective Time shall be cancelled as of immediately prior to the Effective Time and extinguished andexchanged as of the Effective Time for an award of restricted stock units payable in Parent Ordinary Shares or Parent ADSs, in exchange therefor, each former holder as determined by Parent ("Parent Restricted Stock Units"). Each such award of any such Company Compensatory Award shall Parent Restricted Stock Units will have the right same terms and conditions (including, with respect to receive an amount vesting) as applied to the award of Company Restricted Stock Units for which it was exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement, except for such other administrative or ministerial changes as in cashthe reasonable and good faith determination of Parent are appropriate to conform the administration of Parent Restricted Stock Units with other awards under Parent's equity plans, without interestand except as provided in the following sentence. The number of Parent Ordinary Shares or Parent ADSs, as applicable, underlying the Parent Restricted Stock Units subject to each such award shall be that number of whole Parent Ordinary Shares or Parent ADSs, as applicable, that is equal to the product "initial share number" determined as prescribed in the following sentence, rounded down to the nearest whole number of Parent Ordinary Shares or Parent ADSs, as applicable. For purposes of the preceding sentence, the "initial share number" shall be equal to (ii)(x) the aggregate Fair Market Value of a share of Company Common Stock, multiplied by (y) the number of shares of Company Common Stock subject to each underlying the award for which such Company Compensatory Award as of the Effective Time and Parent Restricted Stock Units were exchanged, divided by (ii) the excessFair Market Value of a Parent Ordinary Share or Parent ADS, if any, as applicable.
(e) Each award of restricted stock units granted under the Company Equity Plan to a non-employee director of the Merger Consideration over any per share exercise Company or purchase price of such Company Compensatory Award Baxter (a "Non-Employee Director Restricted Stock Unit") that is outstanding immediately prior to the Effective Time, without regard to the extent then vested, shall be cancelled as of immediately prior to the Effective Time and, in consideration of such cancellation cancellation, the holder thereof shall be entitled to receive promptly, but in no event later than ten (such amounts payable hereunder being referred to as the “Compensatory Award Payments”). From and 10) days after the Effective Time, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right to receive the Per Share Merger Consideration in respect of each share of Company Common Stock underlying his or other Securities or any other right her award of any former holder thereof, except solely for Non-Employee Director Restricted Stock Units.
(f) Each award of performance stock units granted under the right of such holder thereof Company Equity Plan (a "Company Performance Stock Unit") that is outstanding immediately prior to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration Effective Time shall be cancelled without any consideration therefor as of immediately prior to the Effective Time and exchanged as of the holder thereof Effective Time for an award of Parent Restricted Stock Units. The number of Parent Ordinary Shares or Parent ADSs, as applicable, underlying the Parent Restricted Stock Units subject to each such award shall have no further rights be that number of whole Parent Ordinary Shares or Parent ADSs, as applicable, that is equal to the "initial share number" determined as prescribed in the following sentence, rounded down to the nearest whole number of Parent Ordinary Shares or Parent ADSs, as applicable. For purposes of the preceding sentence, the "initial share number" shall be equal to (i) (x) Fair Market Value of a share of Company Common Stock, multiplied by (y) the number of shares of Company Common Stock underlying the award (assuming that each of the performance goals with respect thereto. The Surviving Corporation shall, thereto has been achieved at the greater of (A) 100% of the target level and Parent shall cause (B) actual performance levels measured as of the Surviving Corporation to, pay the Compensatory Award Payments (Effective Time and extrapolated through the payroll end of the Surviving Corporation applicable performance period) for any employees thereofwhich such Parent Restricted Stock Units were exchanged, divided by (ii) the Fair Market Value of a Parent Ordinary Share or Parent ADS. Subject to the foregoing, each such award of Parent Restricted Stock Units will have the same terms and conditions as applied to the award of Company Performance Stock Units for which it was exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement and except for administrative and ministerial changes as in the reasonable and good faith determination of Parent are appropriate to conform the administration of Parent Restricted Stock Units with other awards under Parent's equity plans; provided, that an award of Parent Restricted Stock Units will vest solely based on the continued employment or other engagement by Parent or its subsidiaries of the grantee of the Company Performance Stock Units for which such award was exchanged through the end of the performance period or periods that applied to such Company Performance Stock Units as of immediately prior to the Effective Time (subject to such accelerated vesting as would apply upon a qualifying termination of employment or other service with respect to such grantee following a change in control).
(g) As soon as reasonably practicable following the date of this Agreement, the Company shall (but i) amend the Company's Employee Stock Purchase Plan (the "ESPP") effective immediately such that no additional Offering (as defined in no event more than five (5the ESPP) Business Days for amounts not to shall be paid through payroll) following commenced between the date of this Agreement and the Effective Time, without interest, except (ii) provide that each Offering that would otherwise extend beyond the Effective Time will have an Offering End Date (as defined in the case ESPP) that any such awards are subject is seven (7) business days prior to Section 409A the anticipated Effective Time, (iii) provide that each ESPP participant's accumulated contributions under the ESPP shall be used to purchase shares of the Code and are required to be paid out Company Common Stock in accordance with Section 409A.the ESPP, (iv) provide that the applicable purchase price for shares of Company Common Stock (as a percentage of the fair market value of Company Common Stock) shall not be decreased below the levels set forth in the ESPP as of the date of this Agreement, (v) provide that no participant in the ESPP may increase his or her rate of payroll deductions used to purchase shares of Company Common Stock under the ESPP after the date of this Agreement, (vi) provide that only participants in the ESPP as of the date of this Agreement may continue to participate in the ESPP after the date of this Agreement and (vii) provide that the ESPP shall terminate in its entirety at the Effective Time and no further rights shall be granted or exercised under the ESPP thereafter.
(bh) Prior to As of the Effective Time, the Company Equity Plan and ESPP shall provide such noticeterminate and all rights under any provision of any other plan, if anyprogram or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company shall be cancelled without consideration payable therefor, except to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Time2.4.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 1 contract
Samples: Merger Agreement (Shire PLC)
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At Prior to the Effective Time, by virtue the Company Board (or the appropriate committee of the Merger Company Board) shall adopt such resolutions and shall take such other actions as are required to approve the transactions contemplated by this Section 2.4. Prior to adopting any such resolutions, the Company shall provide Parent with a reasonable opportunity to review and comment upon such resolutions and shall consider any comments from Parent thereon in good faith.
(b) Each option (other than an option granted to a non-employee director of the Company or Xxxxxx International, Inc. (“Xxxxxx”)) to acquire shares of Company Common Stock granted under the Company’s 2015 Incentive Plan (each such option, a “Company Option,” and such plan, the “Company Equity Plan”) that is outstanding and unexercised immediately prior to the Effective Time shall be cancelled as of immediately prior to the Effective Time and exchanged as of the Effective Time for an award of stock options (“Parent Options”) exercisable in accordance with their terms for Parent Ordinary Shares or Parent ADSs (as determined by Parent). Each such award of Parent Options will have the same terms and conditions (including, with respect to vesting) as applied to the award of Company Options for which it was exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement and changes to administrative or ministerial provisions as in the reasonable and good faith determination of Parent are appropriate to conform the administration of Parent Options with other awards under Parent’s equity plans, and except as described below; provided that each award of Parent Options granted in exchange for an award of Company Options that was subject to vesting based on achievement of a per share price of Company Common Stock or any other performance-based vesting condition as of immediately prior to the Effective Time shall vest solely based on the continued employment or other engagement by Parent or its subsidiaries of the grantee of the Company Options for which such award was exchanged through the end of the performance period or periods that applied to such Company Options as of immediately prior to the Effective Time (subject to such accelerated vesting as would apply upon a qualifying termination of employment or other service with respect to such grantee following a change in control). The exercise price per Parent Ordinary Share or Parent ADS, as applicable, underlying each such award of Parent Options will be the “initial per-share exercise price” determined as prescribed in the following sentence, rounded up to the nearest whole cent. For purposes of the preceding sentence, the “initial per-share exercise price” for any Parent Option shall be determined such that (i) equals (ii), where (i) is the ratio of (x) such initial per-share exercise price to (y) the Fair Market Value of a Parent Ordinary Share or Parent ADS, as applicable, and (ii) is the ratio of (X) the per-share exercise price of the Company Option for which it was exchanged, to (Y) the Fair Market Value of a share of Company Common Stock. The number of Parent Ordinary Shares or Parent ADSs, as applicable, underlying each award of Parent Options, determined as of the exchange, shall be that number of whole Parent Ordinary Shares or Parent ADSs, as applicable, which, if such award were exercised in full immediately upon such exchange on a cashless basis (without regard to the extent to which such Parent Option is then vested or exercisable and without any action regard to Taxes), would result in the delivery of Parent Ordinary Shares or Parent ADSs, as applicable, with an aggregate value (assumed for this purpose to be equal on a per-share basis to the Fair Market Value of a Parent Ordinary Share or Parent ADS, as applicable) as nearly as possible equal to, but not exceeding, the aggregate value of the shares of Company Common Stock (assumed for this purpose to be equal to the Fair Market Value of a share of Company Common Stock) that would have been delivered had the Company Option for which such award was exchanged been exercised in full as of immediately prior to the Effective Time on a cashless basis (without regard to the extent to which such Company Option was then vested or exercisable and without regard to Taxes). The foregoing adjustment will be subject to such modifications, if any, as are required to cause the substitution contemplated by this Section 2.4(b) to be made in a manner consistent with exemption from Section 409A of the Code.
(c) Each option to acquire shares of Company Common Stock granted to a non-employee director of the Company or Xxxxxx (a “Non-Employee Director Option”) under the Company Equity Plan that is outstanding and unexercised immediately prior to the Effective Time and for which the (i) Per Share Cash Consideration, plus (ii) the value of the Per Share Stock Consideration (determined based on the part Fair Market Value of any holders thereofa Parent ADS) (the sum of
(i) plus (ii), each the “Gross Settlement Amount”) exceeds the exercise price of such Non-Employee Director Option shall be cancelled as of immediately prior to the Effective Time and, in consideration of such cancellation, the holder thereof shall be entitled to receive promptly, but in no event later than ten (10) days after the Effective Time, a payment of cash and Parent ADSs in respect of such cancellation from the Company Compensatory Award, whether in an amount equal to the Per Share Merger Consideration (and which amount shall be divided between cash and Parent ADSs in the same proportion as the Per Share Merger Consideration) that he or she would have received had he or she exercised such Non-Employee Director Option in full (without regard to the extent to which the Non-Employee Director Option was vested or unvestedexercisable as of immediately prior to the Effective Time) on a cashless basis immediately prior to the Effective Time (assuming for this purpose that the value of a share of Company Common Stock as of the time of such deemed cashless exercise was equal to the Fair Market Value of a share of Company Common Stock). Each Company Option for which, as of the Effective Time, the Gross Settlement Amount does not exceed the exercise price of such Company Option shall be cancelled without any consideration being paid in respect thereof.
(d) Each award of restricted stock units (other than an award of restricted stock units granted to a non-employee director of the Company or Xxxxxx) granted under the Company Equity Plan (a “Company Restricted Stock Unit”) that is outstanding immediately prior to the Effective Time shall be cancelled as of immediately prior to the Effective Time and extinguished andexchanged as of the Effective Time for an award of restricted stock units payable in Parent Ordinary Shares or Parent ADSs, in exchange therefor, each former holder as determined by Parent (“Parent Restricted Stock Units”). Each such award of any such Company Compensatory Award shall Parent Restricted Stock Units will have the right same terms and conditions (including, with respect to receive an amount vesting) as applied to the award of Company Restricted Stock Units for which it was exchanged, except for terms rendered inoperative by reason of the transactions contemplated by this Agreement, except for such other administrative or ministerial changes as in cashthe reasonable and good faith determination of Parent are appropriate to conform the administration of Parent Restricted Stock Units with other awards under Parent’s equity plans, without interestand except as provided in the following sentence. The number of Parent Ordinary Shares or Parent ADSs, as applicable, underlying the Parent Restricted Stock Units subject to each such award shall be that number of whole Parent Ordinary Shares or Parent ADSs, as applicable, that is equal to the product “initial share number” determined as prescribed in the following sentence, rounded down to the nearest whole number of Parent Ordinary Shares or Parent ADSs, as applicable. For purposes of the preceding sentence, the “initial share number” shall be equal to (ii)(x) the aggregate Fair Market Value of a share of Company Common Stock, multiplied by (y) the number of shares of Company Common Stock subject to each underlying the award for which such Company Compensatory Award as of the Effective Time and Parent Restricted Stock Units were exchanged, divided by (ii) the excessFair Market Value of a Parent Ordinary Share or Parent ADS, if any, as applicable.
(e) Each award of restricted stock units granted under the Company Equity Plan to a non-employee director of the Merger Consideration over any per share exercise Company or purchase price of such Company Compensatory Award Xxxxxx (a “Non-Employee Director Restricted Stock Unit”) that is outstanding immediately prior to the Effective Time, without regard to the extent then vested, shall be cancelled as of immediately prior to the Effective Time and, in consideration of such cancellation cancellation, the holder thereof shall be entitled to receive promptly, but in no event later than ten (such amounts payable hereunder being referred to as the “Compensatory Award Payments”). From and 10) days after the Effective Time, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right to receive the Per Share Merger Consideration in respect of each share of Company Common Stock underlying his or other Securities or any other right her award of any former holder thereof, except solely for Non-Employee Director Restricted Stock Units.
(f) Each award of performance stock units granted under the right of such holder thereof Company Equity Plan (a “Company Performance Stock Unit”) that is outstanding immediately prior to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration Effective Time shall be cancelled without any consideration therefor as of immediately prior to the Effective Time and the holder thereof shall have no further rights with respect thereto. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay the Compensatory Award Payments (through the payroll of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following the Effective Time, without interest, except in the case that any such awards are subject to Section 409A of the Code and are required to be paid out in accordance with Section 409A.
(b) Prior to the Effective Time, the Company shall provide such notice, if any, to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested exchanged as of the Effective Time for an award of Parent Restricted Stock Units. The number of Parent Ordinary Shares or Parent ADSs, as applicable, underlying the Parent Restricted Stock Units subject to each such award shall be that number of whole Parent Ordinary Shares or Parent ADSs, as applicable, that is equal to the “initial share number” determined as prescribed in accordance with the following sentence, rounded down to the nearest whole number of Parent Ordinary Shares or Parent ADSs, as applicable. For purposes of the preceding sentence, the “initial share number” shall be equal to (i) (x) Fair Market Value of a share of Company Equity Plans Common Stock, multiplied by (which shall, for avoidance y) the number of doubt, treat shares of Company Common Stock underlying the award (assuming that each of the performance component goals with respect thereto has been achieved at the greater of any Company Compensatory Awards as if the Company achieved (A) 100% of the target level and (B) actual performance under such award), (iii) terminate each of the Company Equity Plans levels measured as of the Effective TimeTime and extrapolated through the end of the applicable performance period) for which such Parent Restricted Stock Units were exchanged, and divided by (ivii) ensure that after the Effective Time, no holder Fair Market Value of a Parent Ordinary Share or Parent ADS. Subject to the foregoing, each such award of Parent Restricted Stock Units will have the same terms and conditions as applied to the award of Company Compensatory AwardPerformance Stock Units for which it was exchanged, any beneficiary thereof nor any except for terms rendered inoperative by reason of the transactions contemplated by this Agreement and except for administrative and ministerial changes as in the reasonable and good faith determination of Parent are appropriate to conform the administration of Parent Restricted Stock Units with other participant in any awards under Parent’s equity plans; provided, that an award of Parent Restricted Stock Units will vest solely based on the continued employment or other engagement by Parent or its subsidiaries of the grantee of the Company Equity Plans shall have any right thereunder to acquire any Securities Performance Stock Units for which such award was exchanged through the end of the performance period or periods that applied to such Company Performance Stock Units as of immediately prior to the Effective Time (subject to such accelerated vesting as would apply upon a qualifying termination of employment or to receive any payment or benefit other service with respect to any award previously granted under any of the Company Equity Plans, except as provided such grantee following a change in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Timecontrol).
(cg) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence As soon as practicable following the date of this Agreement. For , the avoidance Company shall (i) amend the Company’s Employee Stock Purchase Plan (the “ESPP”) effective immediately such that no additional Offering (as defined in the ESPP) shall be commenced between the date of doubtthis Agreement and the Effective Time, any (ii) provide that each Offering that would otherwise extend beyond the Effective Time will have an Offering End Date (as defined in the ESPP) that is seven (7) business days prior to the anticipated Effective Time, (iii) provide that each ESPP participant’s accumulated contributions under the ESPP shall be used to purchase shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms ESPP, (iv) provide that the applicable purchase price for shares of Section 2.6.Company Common Stock (as a percentage of the fair market value of Company Common Stock) shall not be decreased below the levels set forth in the ESPP as of the date of this Agreement, (v) provide that no participant in the ESPP may increase his or her rate of payroll deductions used to purchase shares of Company Common Stock under the ESPP after the date of this Agreement, (vi) provide that only participants in the ESPP as of the date of this Agreement may continue to participate in the ESPP after the date of this Agreement and
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Samples: Merger Agreement
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with the Merger and the Transactions. At the Effective Time, by virtue of the Merger and without any action on the part of any the holders thereof, each Company Compensatory Award, whether vested or unvested, Option that is outstanding and unexercised immediately prior to the Effective Time Time, shall be cancelled and extinguished and, in exchange therefor, each former holder of any such Company Compensatory Award Option shall have the right to receive from Parent or the Surviving Corporation an amount in cash, without interest, cash equal to the product of obtained by multiplying (i) the aggregate number of shares of Company Common Stock subject to each such Company Compensatory Award as of the Effective Time and (ii) the excess, if any, of the Merger Consideration over any the per share exercise or purchase price of such Company Compensatory Award Option, by (ii) the aggregate number of shares of Company Common Stock issuable upon exercise of such Company Option immediately prior to such cancellation the Effective Time (such amounts payable hereunder being referred product with respect to as any Company Option, the “Compensatory Award PaymentsOption Payment”). At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, funds sufficient to pay the aggregate Option Payment to an account identified by the Company prior to the Effective Time. From and after the Effective Time, all any such Company Compensatory Awards Option shall no longer be exercisable by the former holder thereof or outstanding and shall automatically cease to exist and no longer otherwise represent any the right to receive Company Common Stock or other Securities or any other right of any former holder thereofequity securities, except solely for the right of but shall only entitle such holder thereof to the payment of the applicable Compensatory Award Option Payment; provided, however, provided that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration shall be cancelled without any consideration therefor therefor. The Option Payments due with respect to all Company Options shall be paid as soon as practicable following the Effective Time, without interest and reduced by the amount of any withholding that is required under applicable Tax Law, in accordance with Section 3.11. All payments provided pursuant to this Section 3.7(a) shall be made through the Surviving Corporation’s payroll or equity award maintenance systems.
(b) At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each unvested Company RSU that is outstanding immediately prior to the Effective Time shall be cancelled and the extinguished and, in exchange thereof, each former holder thereof of any such Company RSU shall have no further rights with respect thereto. The Surviving Corporation shall, and the right to receive from Parent shall cause or the Surviving Corporation toan amount in cash equal to the Merger Consideration (such amounts payable hereunder, pay the Compensatory “RSU Award Payments (through Payment”). From and after the payroll Effective Time, any such Company RSU shall no longer represent the right to receive any payment with respect to the Company RSU, but shall only entitle such holder to the payment of the Surviving Corporation for any employees thereof) RSU Award Payment. The RSU Award Payment shall be paid as soon as reasonably practicable (but in no event more than five (5) Business Days for amounts not to be paid through payroll) following the Effective Time, without interestinterest and reduced by the amount of any withholding that is required under applicable Tax Law, except in the case that any such awards are subject to Section 409A of the Code and are required to be paid out in accordance with Section 409A.3.11. All payments provided pursuant to this Section 3.7(b) shall be made through the Surviving Corporation’s payroll or equity award maintenance systems.
(bc) Prior to the Effective Time (but in any event, effective no earlier than the Acceptance Time), the Company shall provide take any and all such notice, if any, to the extent required actions as are necessary (under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwise, and take all other appropriate or necessary actions to (i) give effect to the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Effective Time in accordance with the Company Equity Plans (which shallIncentive Plans, for avoidance applicable award agreements, applicable Law or otherwise) to effect the foregoing provisions of doubtthis Section 3.7, treat including by amending the performance component of any Company Compensatory Awards as if the Company achieved 100% of the target performance under such award), (iii) terminate each of the applicable Company Equity Plans as of the Effective Time, and (iv) ensure that after the Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans shall have any right thereunder to acquire any Securities of the Company or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Incentive Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective Time.
(c) Following the Original Agreement Date, the Company caused the Company ESPP to be terminated and no new offering period shall commence following the date of this Agreement. For the avoidance of doubt, any shares of Company Common Stock issued to participants under the Company ESPP shall be treated in accordance with the terms of Section 2.6.
Appears in 1 contract
Company Compensatory Awards. (a) Neither Parent nor Merger Sub shall assume any Company Compensatory Award or substitute any Company Compensatory Award or similar award for Parent common stock or other equity in connection with Immediately prior to the Merger and the Transactions. At the Effective Time, by virtue each outstanding share of unvested time-based restricted Company Common Stock (“Time Vested Restricted Stock”) granted pursuant to the Merger Long-Term Incentive Plan shall, automatically and without any action required on the part of any holders the holder thereof, each Company Compensatory Awardbecome fully vested and all restrictions and reacquisition rights thereon shall lapse, whether vested or unvested, that is outstanding immediately prior to the Effective Time shall be cancelled and extinguished and, in exchange therefor, each former holder of any such Company Compensatory Award shall have the right to receive an amount in cash, without interest, equal to the product of (i) the aggregate number of thereafter all shares of Company Common Stock subject represented thereby shall be considered outstanding for all purposes under this Agreement and shall only have the right to each such Company Compensatory Award as receive, in accordance with the terms of this Agreement, an amount in cash equal to the Effective Time and Common Stock Consideration (ii) the excess, if any, of the Merger Consideration over any per share exercise or purchase price of such Company Compensatory Award immediately prior less applicable Taxes required to be withheld with respect to such cancellation (such amounts payable hereunder being referred to vesting or payment as the “Compensatory Award Payments”provided in Section 3.4). From and after the Effective TimeIn addition, all Company Compensatory Awards shall no longer be exercisable or outstanding and shall automatically cease to exist and no longer represent any right to receive Company Common Stock or other Securities or any other right of any former holder thereof, except solely for the right of such holder thereof to the payment of the applicable Compensatory Award Payment; provided, however, that any Company Compensatory Award in respect of a Company Option that has an exercise price equal to or greater than the Merger Consideration shall be cancelled without any consideration therefor immediately prior to the Effective Time and the holder thereof shall have no further rights with respect thereto. The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay the Compensatory Award Payments (through the payroll of the Surviving Corporation for any employees thereof) as soon as reasonably practicable (but in no event more later than five (5) Business Days for amounts not to be paid through payroll) following after the Effective Time, without interest, except in the case that any such awards are subject to Section 409A of the Code and are required to be paid out in accordance with Section 409A.
(b) Prior to the Merger Effective Time, the Company shall provide such notice, if any, pay each holder of Time Vested Restricted Stock an amount equal to the extent required under the terms of any of the Company Benefit Plans (including any Company Equity Plans), obtain any necessary Consents, adopt applicable resolutions, amend the terms of any of the Company Benefit Plans or any outstanding awards or award agreements thereunder or otherwiseall accrued and unpaid cash dividends up to, and take all other appropriate or necessary actions to (i) give effect to including, the Transactions contemplated herein, (ii) accelerate the vesting of all Company Compensatory Awards that would not otherwise be fully vested as of the Merger Effective Time (less required withholdings as provided in Section 3.4) in accordance with the Company Equity Plans (which shall, for avoidance of doubt, treat the performance component of any Company Compensatory Awards as if the Company achieved 100% terms of the target performance under such award), applicable award agreement.
(iiib) terminate each of Immediately prior to the Company Equity Plans as of the Merger Effective Time, each outstanding award of unvested performance-based restricted Company Common Stock (“Performance Restricted Stock”) granted pursuant to the Long-Term Incentive Plan shall, automatically and without any action required on the part of the holder thereof, become vested assuming target-level achievement of all applicable performance-based vesting requirements and all restrictions and reacquisition rights thereon shall lapse, and thereafter all shares of Company Common Stock represented thereby shall be considered outstanding for all purposes under this Agreement and shall only have the right to receive, in accordance with the terms of this Agreement, an amount in cash equal to the Common Stock Consideration (ivless applicable Taxes required to be withheld with respect to such vesting or payment as provided in Section 3.4). In addition, in no event later than five Business Days after the Merger Effective Time, the Company shall pay each holder of Performance Restricted Stock an amount equal to all accrued and unpaid cash dividends up to, and including, the Merger Effective Time (less required withholdings as provided in Section 3.4) in accordance with the terms of the applicable award agreement.
(c) At or prior to the Merger Effective Time, the Company Board (or any committee thereof) shall adopt any resolutions and take any actions which are necessary to effectuate the provisions of this Section 3.3.
(d) As of the Merger Effective Time, the Long-Term Incentive Plan shall terminate, and the Company shall ensure that after following the Merger Effective Time, no holder of a Company Compensatory Award, any beneficiary thereof nor any other participant in any of the Company Equity Plans Long-Term Incentive Plan or other plans, programs or arrangements shall have any right thereunder to acquire any Securities equity securities of the Company Company, the Surviving Entity or to receive any payment or benefit with respect to any award previously granted under any of the Company Equity Plans, except as provided in this Section 2.7. The Company shall provide Parent with documentation evidencing the completion of the foregoing actions (the form and substance of such documentation shall be subject to review and approval by Parent, such approval not to be unreasonably withheld, conditioned or delayed) no later than three (3) Business Days preceding the Effective TimeSubsidiary thereof.
(ce) Following At the Original Agreement DateMerger Effective Time, Parent shall deposit with the Surviving Entity cash in the amount necessary, together with the other funds of the Surviving Entity, to make the payments required under this Section 3.3, including all accrued and unpaid cash dividends on Company caused Compensatory Awards, as applicable, and Parent shall cause the Company ESPP Surviving Entity to be terminated and make the payments required under this Section 3.3 through the Surviving Entity’s payroll as promptly as practicable, but in no new offering period shall commence following event later than five Business Days after the date Merger Effective Time, or at such later time as necessary to avoid a violation and/or adverse Tax consequences under Section 409A of this Agreementthe Code. For the avoidance of doubt, any shares of Company Common Stock issued Parent’s obligation to participants deposit cash shall include amounts sufficient to satisfy the Company’s obligation to withhold from, and pay over to applicable taxing authorities, amounts with respect to the payments required under the Company ESPP shall be treated in accordance with the terms of this Section 2.63.3.
Appears in 1 contract
