Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b). (ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period. (iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 2 contracts
Samples: Merger Agreement (NeuroMetrix, Inc.), Merger Agreement (electroCore, Inc.)
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii1) At the Effective Time, each Company Option that is then outstanding vested as of the Effective Time or that becomes vested as a result of the transactions set forth in this Agreement as of the Effective Time, and that is unexpired, unexercised and which has a per share exercise price that is less than outstanding immediately prior to the Per Share Cash Consideration Effective Time (collectively, the “Cashed-Out Options”) shall, on the terms and subject to the conditions set forth in this Agreement, terminate in its entirety at the Effective Time, and the holder of each Cashed-Out Option shall be cancelled and converted into the right entitled to receive (A) therefore an amount in of cash equal to the product of (i) the number of shares of Company Common Stock as to which such Company Option is exercisable at the Effective Time and (ii) the excess, if any, of the Per Share Cash per share Merger Consideration over the per share exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii2) At the Effective Time, each Company Option that is then unvested as of the Effective Time, and that is unexpired and outstanding immediately prior to the Effective Time (collectively, the “Non-Cashed-Out Options”) shall, on the terms and subject to the conditions set forth in this Agreement, be converted into the right to receive from Parent or any direct or indirect Subsidiary thereof after the Effective Time an amount of cash equal to the product of (x) the number of shares of Company Common Stock as to which such Non-Cashed-Out Option has become vested and exercisable multiplied by (y) the excess, if any, of the per share Merger Consideration over the per share exercise price of such Non-Cashed-Out Option, it being understood that in no event shall such Non-Cashed-Out Options be exercisable for any equity securities of Parent, the Company or any of their Subsidiaries. Any holder of Non-Cashed-Out Options shall be entitled to receive such amount with respect to any Non-Cashed-Out-Option at the time that any such Non-Cashed-Out-Option would have vested under the relevant Company Stock Plan and agreement thereunder, on condition that at such time such holder continues to be employed by Parent, the Surviving Corporation or any (direct or indirect) Subsidiary of Parent; provided, however, that any holder of Non-Cashed-Out-Options who is dismissed from his or her employment without cause, or who resigns with good reason (as “cause” and “good reason” are defined in the Company Stock Plan or such holder’s employment terms and conditions at the time of such dismissal or resignation, as applicable), at any time until July 31, 2008, shall be entitled to receive, with respect to each Company Option that was a Non-Cashed-Out Option that is unvested, unexpired and outstanding immediately prior to such dismissal or resignation, such amount as soon as administratively practicable following such dismissal or resignation; provided, further, that, so long as a holder of an unvested, unexercised and outstanding Company Option that has an exercise price per share was a Non-Cashed-Out Option continues to be employed by Parent, the Surviving Corporation or any (direct or indirect) Subsidiary of Parent, upon such holder’s death or permanent disability (as “permanent disability” is defined in the Company Stock Plan or such holder’s employment terms and conditions at the time of such permanent disability, as applicable), such holder shall be entitled to receive, with respect to each Company Option that was a Non-Cashed-Out Option that is equal unvested, unexpired and outstanding immediately prior to such holder’s death or greater than permanent disability, such amount as soon as administratively practicable following notification of Parent, the Per Share Cash Consideration Surviving Corporation or any (direct or indirect) Subsidiary of Parent of such holder’s death or permanent disability.
(3) As of the Effective Time, the Company Stock Plans and the Company 2005 Employee Stock Participation Plan (the “ESPP”) shall terminate and all rights under the Company Options and the ESPP shall be cancelled cancelled. The Company shall use commercially reasonable efforts, including delivery of all notices, to effectuate the provisions of this Section 1.6(b), and to ensure that, from and following the Effective Time, no Person shall have any right under the Company Stock Plans, the ESPP, Restricted Stock or the Company Options with no consideration payable in respect thereofto equity securities of the Company.
Appears in 2 contracts
Samples: Merger Agreement (Cap Gemini Sa), Merger Agreement (Kanbay International Inc)
Company Options. At the Effective Time, each option to purchase Company Shares (ieach, a “Company Option”) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective that is outstanding and unvested as of the Effective Time (after application of any vesting acceleration provisions set forth in the terms of such Company Option) (each such Company Option, an “Unvested Company Option”), shall, automatically and without any required action on the part of any the holder thereof, be converted into a cash-settled stock appreciation right relating to the number of Parent Shares (rounded down to the nearest whole number) equal to (i) the number of Company Options, (A) all Shares subject to the Unvested Company Options (whether time-based or performance-based) which are outstanding as of Option immediately prior to the Effective Time shall fully vest and become exercisablemultiplied by (ii) the Equity Award Exchange Ratio, and become Vested at a base price per share (rounded up to the nearest whole cent) equal to (A) the exercise price per Company Options, and Share of such Company Option immediately prior to the Effective Time divided by (B) the Equity Award Exchange Ratio. Except as specifically provided above, following the Effective Time, each Unvested Company Option shall continue to be governed by substantially the same terms and conditions (including the terms set forth on Section 4.5 of the Company Disclosure Letter) as were applicable to such Unvested Company Option immediately prior to the extent not exercised Effective Time; provided that the base price and number of Parent Shares subject to this provision shall be determined in a manner consistent with the requirements of Section 409A of the Code, and, in the case of Company Options that are intended to qualify as incentive stock options within the meaning of Section 422 of the Code, consistent with the requirements of Section 424 of the Code; and further provided that, for clarification, such stock appreciation right shall be settled solely in cash. Immediately prior to the Effective Time, each Company Option shall that is outstanding and vested as of the Effective Time (taking into account the application of any vesting acceleration provisions set forth in the terms of such Company Option) shall, automatically and without any required action on the part of the holder thereof, be cancelled and converted into in exchange for the right to receive an amount, solely in cash (without interest and less applicable withholdings in accordance with Section 4.6), equal to the applicable payments set forth in this Section 1.5(b).
(ii) At number of Company Shares subject to such Company Option as of immediately prior to the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to Time multiplied by the excess, if any, of the Per Share Cash Equity Award Cash-Out Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to . Such cash payment shall be paid as soon as reasonably practicable after the Effective Time. The Surviving Corporation shall pay Time (but in no event later than the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (end of the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course first regular payroll date that is at least five Business Days period commencing immediately following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period).
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 2 contracts
Samples: Merger Agreement (Conagra Brands Inc.), Merger Agreement (Pinnacle Foods Inc.)
Company Options. (i) Neither the Surviving Corporation nor LKQ and Parent shall not assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any other transactions contemplated by this Agreement. Upon the terms and subject to the conditions set forth in this Agreement, except as otherwise agreed to by Parent and a holder of a Company Option, the Company shall take such action as may be necessary so that immediately prior to the Effective Time, and without any action on the part of any holder of a Company Option, (i) the vesting of each Company Option that is unvested and remains outstanding as of immediately prior to the Effective Time shall be accelerated in full, (ii) each Company Option (including each Company Option that was accelerated pursuant to the foregoing clause (i)) that remains outstanding as of immediately prior to the Effective Time shall be cancelled and terminated as of the other TransactionsEffective Time, and (iii) each holder of each such Company Option who has delivered to the Company an executed Option Consent Agreement shall be paid by the Company promptly after the Effective Time, subject to Section 3.8(e), an amount in cash (without interest), if any, equal to the product obtained by multiplying (x) the aggregate number of Company Shares that were issuable upon exercise of such Company Option immediately prior to the Effective Time, by (y) the Offer Price, less the per share exercise price of such Company Option (the “Option Consideration”) (it being understood and agreed that such exercise price shall not actually be paid to the Company by the holder of a Company Option). Effective Within three (3) Business Days after the Closing, LKQ and Parent shall provide or cause to be provided to the Surviving Corporation the funds necessary to pay, and LKQ and Parent shall cause the Surviving Corporation to pay, to each of the holders of Company Options who has delivered to the Company an executed Option Consent Agreement, the applicable Option Consideration (less any applicable withholding taxes payable in respect thereof) as promptly as practicable (and in no event later than the next regular payroll date) thereafter. For the avoidance of doubt, if the per share exercise price of any Company Option, whether vested or unvested, equals or exceeds the Offer Price, then by virtue of the occurrence of the Effective Time and without any action on the part of any holder of Company OptionsParent, (A) all Unvested Acquisition Sub, the Company, the Surviving Corporation or the holders thereof, such Company Options (whether time-based or performance-based) which are outstanding as shall automatically terminate and be canceled without payment of immediately prior any consideration to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 2 contracts
Samples: Merger Agreement (LKQ Corp), Merger Agreement (Coast Distribution System Inc)
Company Options. (ia) Neither At the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stockEffective Time, in connection with the Merger or any by virtue of the other Transactions. Effective as of the Effective Time Merger, and without any action on the part of any holder of an option to purchase Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to Common Stock granted under the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(bPlan (a "Company Option").
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised shall, at the election of the holder thereof pursuant to Section 1.9(b), be either: (i) assumed by Purchaser and which has converted into an option to purchase Purchaser Common Stock (a "Substituted Option") on the same terms and conditions as are in effect with respect to the Company Option immediately prior to the Effective Time, except that (A) each Substituted Option may be exercised solely for shares of Purchaser Common Stock, (B) the number of shares of Purchaser Common Stock subject to each Substituted Option shall be equal to the number of shares of Company Common Stock subject to the assumed Company Option immediately prior to the Effective Time multiplied by the Exchange Ratio, the product being rounded, if necessary, up or down to the nearest whole share, and (C) the per share exercise price that is less than the Per Share Cash Consideration under each Substituted Option shall be equal to the per share exercise price of the assumed Company Option immediately prior to the Effective Time divided by the Exchange Ratio, the quotient being rounded, if necessary, up or down to the nearest cent; (ii) cancelled and converted into all rights thereunder be extinguished ("Cancelled Option"), in consideration for which Company shall make payment immediately after the right to receive Effective Time in an amount determined by multiplying (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus immediately prior to the Effective Time by (B) one CVR an amount equal to the excess (if any) of (x) the Per Share Cash Consideration, over (y) the exercise price per share of such Company Option; or (iii) assumed by Purchaser and converted into an option to purchase Purchaser Common Stock as provided in Section 1.9(a)(i) with respect to each share a number of shares of Company Common Stock subject to such Company Option immediately designated by the holder thereof and cancelled in consideration for payment as provided in Section 1.9(a)(ii) with respect to the remaining shares of Company Common Stock subject thereto. (b) In order for any holder of a Company Option to have his or her Company Options converted into a Substituted Option as set forth in Section 1.9(a)(i) or to receive cash in exchange for a Cancelled Option as set forth in Section 1.9(a)(ii) or to receive a Substituted Option and cash as set forth in Section 1.9(a)(iii), such holder shall have executed a written election with respect to such conversion or cancellation no later than three business days prior to the Effective Time, which written election shall be in such form as shall be prescribed by Company and reasonably satisfactory to Purchaser. The Surviving Corporation No payment shall pay be made to a holder of a Cancelled Option unless and until such holder has executed and delivered the cash amounts payable foregoing written election. In the event any holder of a Company Option fails to make an election within the time frame set forth herein, the Company Option held thereby shall automatically be converted at the Effective Time into an option to purchase Purchaser Common Stock in the amount and at the exercise price as calculated pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”1.9(a)(i), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.. 4
Appears in 2 contracts
Samples: Agreement and Plan of Merger (First Commonwealth Financial Corp /Pa/), Merger Agreement (First Commonwealth Financial Corp /Pa/)
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share with an exercise price that is less than the Per Share Cash Merger Consideration (an “In-the-Money Option”) shall be cancelled assumed and converted into the right to receive (A) an amount in cash equal to the product of (i) the total number of shares of Company Common Stock subject to such In-the-Money Option multiplied by (ii) the excess, if any, of the Per Share Cash Merger Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying Stock, with such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior amount rounded down to the Effective Time. The Surviving Corporation shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) nearest whole cent (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iiiii) At Immediately prior to the Effective Time, each Company Option that is then outstanding and unexercised and that has with an exercise price per share that is equal or greater than the Per Share Cash Merger Consideration (an “Underwater Option”) shall become fully vested and exercisable. At the Effective Time, each Underwater Option shall terminate.
(iii) Parent shall, or shall cause the Company to: (x) pay to holders of In-the-Money Options that immediately prior to the Effective Time were vested, the Option Consideration less applicable Taxes required to be withheld with respect to such payment related to such vested In-the-Money Options promptly after the Effective Time and (y) pay to holders of In-the-Money Options that immediately prior to the Effective Time were unvested, the Option Consideration less applicable Taxes required to be withheld with respect to such payment over time and without interest in accordance with the vesting schedule set forth in the agreement evidencing such In-the-Money Options.
(iv) Subject to the foregoing provisions of this Section 1.8(a), each In-the-Money Option so assumed by Parent shall continue to have, and be subject to, the same terms and conditions set forth in the agreement evidencing such option and the applicable Company Equity Incentive Plan immediately prior to the Effective Time, including provisions with respect to vesting, except that each In-the-Money Option shall be converted into the right to receive the Option Consideration as described in this Section 1.8(a), and except that payment of the Option Consideration shall be cancelled made promptly after the Effective Time or promptly after the applicable vesting dates, as described in this Section 1.8(a), and not upon exercise of the assumed In-the-Money Options by the holder.
(v) Prior to the Effective Time, the Company shall provide notice (in a form reasonably satisfactory to Parent) to each holder of an outstanding Company Option describing the treatment of the Company Option in accordance with no consideration payable in respect thereofthis Section 1.8(a).
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Palmsource Inc)
Company Options. (i) Neither On the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for terms and subject to the Surviving Corporation or Parent stockconditions set forth in this Agreement, in connection with the Merger or any of the other Transactions. Effective effective as of the Effective Time Time, each vested Company Option that is outstanding and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding unexercised as of immediately prior to the Effective Time shall fully vest shall, by virtue of the First Merger, be immediately cancelled and become exercisable, extinguished and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted automatically into the right to receive a cash payment, less any required withholding as contemplated by Section 1.12 below and subject to the applicable payments terms set forth in this Section 1.5(b).
1.8(b) and throughout this Agreement, equal to (iiA) At (1) the Effective Time, each product of (x) the number of shares of Company Common Stock subject to such Company Option that is then outstanding are vested and unexercised and which has a per share exercise price that is less than exercisable immediately prior to the Per Share Cash Consideration shall be cancelled and converted into the right to receive Effective Time multiplied by (Ay) an amount in cash equal to the excess, if any, of the Per Share Cash Aggregate Consideration over the applicable per share exercise price per share of such vested Company Option, multiplied by minus (2) the number sum of shares of Company Common Stock underlying the Per Share Expense Fund Amount and the Per Share Holdback Cash (each such Company payment, a “Closing Option plus Payment”, and all such payments, the “Closing Option Payments”) and (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior the contingent right to the Effective Time. The Surviving Corporation shall pay Per Share Expense Fund Amount and the cash Per Share Holdback Cash to the extent such amounts payable pursuant become distributable to Section 1.5(b)(ii)(A) contributing Company Equityholders in accordance with, and subject to, the terms and conditions of this Agreement (any payments made under this clause (B), together with the Closing Option Payments, the “Company Option Cash ConsiderationPayments”); provided, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and no Option Payments shall made with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at vested Company Option until Acquiror has received an Optionholder Release Agreement executed by the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of such vested Company Options after such five-year period.
(iii) At Option. Notwithstanding the Effective Timeforegoing, each Company Option that is then either (x) unvested as of the Effective Time or (y) outstanding and unexercised and that has an unexercised, whether or not vested, as of the Effective Time with a per share exercise price per share that is equal to or greater than the Per Share Cash Consideration shall Aggregate Consideration, will, in each case, as of the Effective Time, be cancelled with no canceled without the payment of any consideration payable in respect thereoftherefor.
Appears in 1 contract
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of At the Effective Time Time, each option to purchase Company Shares granted by the Company (a “Company Option”) that is outstanding and unexercised immediately prior to the Effective Time, whether or not vested, without any action on the part of any Parent, Merger Sub, the Company, the holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each such Company Option shall or any other Person, will be cancelled and converted at the Effective Time into the right to receive from the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Surviving Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the product of (x) the number of Company Shares subject to such Company Option, and (y) the excess, if any, of the Per Share Cash Merger Consideration or Per ADS Merger Consideration, as applicable, over the per share exercise price per share of such Company Option, multiplied by Option (the number of shares of Company Common Stock underlying such Company “Option plus (B) one CVR with Consideration”). With respect to each share of Company Common Stock subject to such Company Option that is vested pursuant to its terms as of immediately prior to the Effective Time. The Surviving Corporation shall pay , (including each Company Option that is accelerated at or prior to the cash amounts payable pursuant to Section 1.5(b)(ii)(AEffective Time in connection with the consummation of the Transactions) (the each such vested option, a “Vested Company Option Cash ConsiderationOption”), without interest thereon and the Option Consideration (reduced by applicable Tax withholdings) shall be paid in accordance with Section 2.3(c) below. With respect to each Company Option that is not a Vested Company Option (each such unvested option, an “Unvested Company Option”), the Option Consideration (reduced by applicable Tax withholdings) shall be paid in accordance with Section 2.3(d) below subject to deduction for the holder of such Unvested Company Option remaining continuously employed by or in the service of the Company or a Company Subsidiary (or any required withholding as contemplated in Section 1.6, successor or affiliate thereof) through (I)(x) each applicable vesting date (with the portion of the Option Consideration vesting on each such date based on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following original vesting schedule) with respect to any such Company Option that, prior to the Effective Time, and was subject to time-based vesting, or (y) the end of the applicable performance period with respect to a CVR any such payment will be madeCompany Option that, without interest thereon and prior to the Effective Time, was subject to deduction for performance-based vesting or (II) such earlier date as required pursuant to the terms of such Company Option; provided, that if the employment or service of the holder of any such Unvested Company Option is terminated within six (6) months after the Closing (or such later date as required withholding pursuant to the terms of such Company Option) by the Company or any Company Subsidiary (or any successor or affiliate thereof) without Cause or due to such holder’s death or Disability, any unpaid portion of the Option Consideration with respect to such Unvested Company Option will vest and be paid in accordance with Section 2.3(d) below as contemplated promptly as practicable (and in Section 1.6, if, and only if, a Contingent Payment is made and will be made at any event not later than five (5) Business Days) following the same time effective date of such Contingent Payment is made to other holders of CVRs; provided thattermination. Notwithstanding the foregoing, to the extent that the terms of a Company Option entitle the holder thereof to earlier payment, the Option Consideration shall be paid at such earlier time as required to avoid a violation under the terms of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not Company Option. No later than five years after three (3) Business Days prior to the Closing Date, the Company shall prepare and no amount in respect deliver to Parent an allocation schedule which shall set forth the Company’s good faith estimate of the CVR shall be paid following information with respect to any the Unvested Company Options: (x) the name of each holder of Unvested Company Options, (y) the total number of Unvested Company Options after issued or granted to such five-year periodholder, and (z) the vesting schedule for each Unvested Company Option.
(iiiii) At Notwithstanding the Effective Timeforegoing, each Company Option that is then outstanding and unexercised and that has an as of the Effective Time, whether or not vested, with a per share exercise price per share that is equal to or greater than the Per Share Cash Merger Consideration shall or Per ADS Merger Consideration, as appropriate, will, in each case, as of the Effective Time, be cancelled with no canceled without the payment of any consideration payable in respect thereoftherefor.
Appears in 1 contract
Company Options. (i) Neither Pursuant to the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Arrangement, each Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall immediately vest to the fullest extent and shall be exchanged for a fully vest and become exercisablevested Replacement Option to purchase from the Purchaser such number of Purchaser Shares (rounded down to the nearest whole number) equal to (A) Exchange Ratio, and become Vested Company Options, and multiplied by (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock Shares subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay , at an exercise price per Purchaser Share (rounded up to the cash amounts payable pursuant nearest whole cent) equal to Section 1.5(b)(ii)(A(M) (the “exercise price per Company Share at which such Company Option Cash Consideration”)was exercisable immediately prior to the Effective Time, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6divided by (N) the Exchange Ratio, on exercisable until the Surviving Corporation’s next ordinary course payroll earlier of (X) the date that is 12 months following the Effective Date, notwithstanding the holder ceasing to hold office or ceasing to be a director, employee or consultant at least five Business Days following or after the Effective Time, and with respect (Y) the original expiry date of the Company Option for which it was exchanged. Except as set out above, the terms and conditions of the Replacement Option, including the conditions to a CVR such payment will and manner of exercising, shall be made, without interest thereon and subject to deduction for any required withholding the same as contemplated in Section 1.6, ifthe Company Options so exchanged, and only if, a Contingent Payment is made and will shall be made at governed by the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A terms of the CodeCompany Option Plan and any document evidencing Company Options shall thereafter evidence and be deemed to evidence such Replacement Options. It is intended that the provisions of subsection 7(1.4) of the Tax Act apply to any such exchange. Therefore, and notwithstanding anything to in the contrary contained herein, payment event that the Replacement Option In- The-Money Amount in respect of a Replacement Option would otherwise exceed the Company Option In-The-Money Amount in respect of the CVR shall only Company Option, the exercise price per Purchaser Share of such Replacement Option will be made increased accordingly with effect at and from the Effective Time by the minimum amount necessary to ensure that the extent such payment is made not later than five years after the Closing Date, and no amount Replacement Option In-The-Money Amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At Replacement Option does not exceed the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable In-The-Money Amount in respect thereofof the Company Option.
Appears in 1 contract
Samples: Arrangement Agreement
Company Options. (i) Neither Unvested In-the-Money Company Options. Upon the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for terms and subject to the Surviving Corporation or Parent stockconditions set forth in this Agreement, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of Parent, Acquisition Sub, the Company or any holder of a Company OptionsOption, (A) all Unvested each Company Options (whether timeOption, other than a Non-based or performance-based) which are Employee Director Option, that remains outstanding and unvested as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration Merger Consideration, and that is held by a then-current service provider, shall be cancelled assumed by Parent at the Effective Time and shall be converted into the right and become an option to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company acquire Parent Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such each, an “Adjusted Option”), on the same terms and conditions as were applicable under the corresponding Company Option immediately prior to the Effective Time. The Surviving Corporation , as follows:
(A) the number of shares of Parent Common Stock subject to each Adjusted Option shall pay be determined by multiplying the cash amounts payable pursuant number of Shares that were subject to Section 1.5(b)(ii)(A) (the “corresponding unvested Company Option Cash Consideration”)immediately prior to the Effective Time by the Exchange Ratio, without interest thereon and subject rounding the resulting number down to deduction the nearest whole number of shares of Parent Common Stock;
(B) the per share exercise price for any required withholding the Parent Common Stock issuable upon exercise of each Adjusted Option shall be determined by dividing the applicable per share exercise price of the corresponding Company Option, as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following effect immediately prior to the Effective Time, by the Exchange Ratio, and rounding the resulting exercise price up to the nearest whole cent; and
(C) any restriction on the exercise of any Adjusted Option shall continue in full force and effect and the term, exercisability, vesting schedule, accelerated vesting rights, and other provisions of such Company Option shall otherwise remain unchanged as a result of the assumption of such Company Option, in each case except to the extent otherwise provided in any Stock Plan, or any stock option, employment, change of control or other agreement between the holder of a Company Option and the Company; provided that Parent’s board of directors or a committee thereof shall succeed as to the authority and responsibility of the Company Board or any committee thereof with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodAdjusted Option.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 1 contract
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Each Company Options (whether time-based Option or performance-based) which are portion thereof that is outstanding as of immediately prior to the Effective Time shall fully vest be assumed by Nocturne and become exercisable, converted into an option to purchase shares of Nocturne Common Stock (on the same terms and become Vested conditions as were applicable to such Company Options, and (B) to the extent not exercised Option immediately prior to the Effective Time, each Company Option shall be cancelled including applicable vesting conditions, exercisability and converted into the right to receive the applicable payments set forth in this Section 1.5(btermination-related provisions).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excess, if any, product (rounded down to the nearest whole number) of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by (1) the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay Time and (2) the cash amounts payable Common Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to (x) the exercise price per share of such Company Option immediately prior to the Effective Time divided by (y) the Common Exchange Ratio (each, an “Assumed Option”); provided, however, that the exercise price and the number of shares of Nocturne Common Stock purchasable pursuant to Section 1.5(b)(ii)(A) (each Assumed Option shall be determined in a manner consistent with the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation requirements of Section 409A of the CodeCode and Treasury Regulation Section 1.424-1, and notwithstanding anything to the contrary contained hereinas applicable, payment in respect such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodCode.
(iiiB) At The Company shall take all reasonably necessary actions to ensure that no Assumed Option may be exercised prior to the effective date of an applicable Form S-8 (or other applicable form, including Form S-1 or Form S-3) of Nocturne. The board of directors of the Company shall take all reasonably necessary actions, effective as of immediately prior to the Closing, in order to provide that no new Company Options will be granted under the Equity Incentive Plans following the Closing. Prior to the Effective Time, the Company shall deliver to each holder of a Company Option a notice setting forth the effect of the Merger on such holder’s Company Options and describing the treatment of each Company Option in accordance with this Section 2.1(e)(iv).
(C) As promptly as practicable after the date that is then outstanding and unexercised and that has an exercise price per share that sixty (60) days after the Form 8-K announcing the Closing is equal filed (or greater than any such earlier date permitted by applicable Law), Nocturne shall file with the Per Share Cash Consideration shall be cancelled SEC a registration statement on Form S-8 (or any successor or other appropriate form) with no consideration payable in respect thereofto the shares of Nocturne Common Stock underlying the Assumed Options assumed pursuant to this Section 2.1(e)(iv).
Appears in 1 contract
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Each Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are that is outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to that is vested as of the extent not exercised date hereof or becomes vested prior to the Effective Time in accordance with its terms or Section 2.3 of the Company Disclosure Letter (each, a "Vested Option") shall as of the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the product of (x) the excess, if any, of the Per Share Cash Merger Consideration over the exercise price per share Share of such Company Option, multiplied by Vested Option and (y) the total number of shares Shares subject to such Vested Option. Parent shall cause the Surviving Corporation to pay to the holders of Company Common Stock underlying Vested Options the cash amounts described in the immediately preceding sentence, less such Company Option plus (B) one CVR amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to each share the making of such payment, promptly but in any event within seven days following the Effective Time.
(ii) Each Company Common Stock Option that is outstanding immediately prior to the Effective Time and that is unvested immediately prior to the Effective Time (and does not become vested in accordance with Section 2.3 of the Company Disclosure Letter) (each, an "Unvested Option") shall as of the Effective Time, automatically convert into an award to receive an amount in cash equal to the product of (x) the excess, if any, of the Merger Consideration over the exercise price per Share of such Unvested Option and (y) the total number of Shares subject to such Company Option Unvested Option. Such converted award shall remain subject to the same vesting terms and conditions that applied to such award immediately prior to the Effective Time. The Surviving Corporation shall pay , including continued employment with Parent or the Company through the applicable vesting date, and the applicable cash amounts payable pursuant shall be paid out, less such amounts as are required to Section 1.5(b)(ii)(A) (be withheld or deducted under the “Company Option Cash Consideration”)Code or any provision of state, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and local or foreign Tax Law with respect to a CVR the making of such payment will be madepayment, without interest thereon and subject to deduction for promptly but in any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A event within thirty days of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodvesting date.
(iii) At If the applicable exercise price per Share of any Company Option equals or exceeds the Merger Consideration, such Company Option shall be cancelled without payment of additional consideration, and all rights with respect to such Company Option shall terminate as of the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 1 contract
Samples: Merger Agreement (Interactive Intelligence Group, Inc.)
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right option to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of purchase shares of Company Common Stock underlying (a “Company Option”) under the Stock Plan, whether vested or unvested, shall, automatically and without any required action on the part of the holder thereof, cease to represent an option to purchase shares of Company Common Stock and shall be converted into (i) an option to purchase such Company number of shares of Parent Common Stock determined in accordance with this Section 2.1(c) (each, an “Assumed Option”), and (ii) the right to receive a number of Earn-Out Shares in accordance with Section 2.8. Each Assumed Option plus shall represent an option to purchase a number of shares of Parent Common Stock at such exercise price, in each case, determined as follows and as set forth in the Allocation Statement:
(BA) one CVR with respect The number of shares of Parent Common Stock eligible for purchase under the Assumed Option shall be equal to each share (rounded down to the nearest whole number): (I) the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time. , multiplied by (II) the Exchange Ratio.
(B) The Surviving Corporation exercise price shall pay be equal to (rounded up to the cash amounts payable pursuant to Section 1.5(b)(ii)(Anearest whole cent): (I) (the “exercise price per share of Company Common Stock of such Company Option Cash Consideration”), without interest thereon and subject immediately prior to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, divided by (II) the Exchange Ratio. Notwithstanding the foregoing, in all cases, the exercise price and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders number of CVRs; provided that, shares of Parent Common Stock purchasable pursuant to the extent required to avoid Company Options shall be determined in a violation manner consistent with the requirements of Section 409A of the Code. Additionally, and notwithstanding anything in the case of any Company Option to the contrary contained herein, payment in respect which Section 422 of the CVR Code applies, the exercise price and the number of shares of Parent Common Stock purchasable pursuant to such option shall only be made determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the extent such payment is made not later than five years after the Closing Date, and no amount in respect requirements of Section 424(a) of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At Code. Except as expressly provided above, following the Effective Time, each Company Option that is then outstanding shall continue to be governed by the same terms and unexercised conditions (including vesting and that has an exercisability terms) as were applicable to such Company Option immediately prior to the Effective Time. Notwithstanding the foregoing provisions of this Section 2.1(c), in the event the exercise price per share that of a Company Option as in effect as of immediately prior to the Effective Time is equal or greater than or equal to the Per Share Cash Consideration Merger Consideration, such Company Option shall be cancelled at the Effective Time for no consideration, and each such holder of Company Options shall thereafter cease to have any rights with no consideration payable in respect thereofto such securities.
Appears in 1 contract
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right option to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of purchase shares of Company Common Stock underlying (a “Company Option”) under the Stock Plan, whether or not then vested and exercisable, shall, automatically and without any required action on the part of the holder thereof, cease to represent an option to purchase shares of Company Common Stock and shall be converted into (i) an option to purchase such Company number of shares of Parent Common Stock determined in accordance with this Section 2.1(c) (each, an “Assumed Option”), and (ii) the right to receive a number of Earn-Out Shares in accordance with Section 2.8. Each Assumed Option plus shall represent an option to purchase a number of shares of Parent Common Stock at such exercise price, in each case, determined as follows and as set forth in the Allocation Statement:
(BA) one CVR with respect The number of shares of Parent Common Stock subject to each share the Assumed Option shall be equal to (rounded down to the nearest whole share): (I) the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time. , multiplied by (II) the Exchange Ratio.
(B) The Surviving Corporation exercise price shall pay be equal to (rounded up to the cash amounts payable pursuant to Section 1.5(b)(ii)(Anearest whole cent): (I) (the “exercise price per share of Company Common Stock of such Company Option Cash Consideration”), without interest thereon and subject immediately prior to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, divided by (II) the Exchange Ratio. Notwithstanding the foregoing, in all cases, the exercise price of and with respect to a CVR such payment will be made, without interest thereon and the number of shares of Parent Common Stock subject to deduction for any required withholding as contemplated the Assumed Options shall be determined in Section 1.6, if, and only if, a Contingent Payment is made and will be made at manner consistent with the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation requirements of Section 409A of the Code. Additionally, in the case of any Company Option to which Section 422 of the Code applies, the exercise price of and notwithstanding anything the number of shares of Parent Common Stock subject to the contrary contained hereincorresponding Assumed Option shall be determined in accordance with the foregoing, payment subject to such adjustments as are necessary in respect order to satisfy the requirements of Section 424(a) of the CVR shall only be made to the extent such payment is made not later than five years after the Closing DateCode. Except as expressly provided above, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At following the Effective Time, each Assumed Option shall continue to be governed by the same terms and conditions (including vesting and exercisability terms) as were applicable to such Company Option that is then outstanding and unexercised and that has an immediately prior to the Effective Time. Notwithstanding the foregoing provisions of this Section 2.1(c), in the event the exercise price per share that of a Company Option as in effect as of immediately prior to the Effective Time is equal or greater than or equal to the Per Share Cash Consideration Merger Consideration, such Company Option shall be cancelled at the Effective Time for no consideration, and the holder of such Company Option shall thereafter cease to have any rights with no consideration payable in respect thereofto such Company Option.
Appears in 1 contract
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Each In-the-Money Company Option any option for outstanding at the Surviving Corporation or Parent stock, in connection with Effective Time shall be terminated by the Merger or any of the other Transactions. Effective Company as of the Effective Time in exchange for payment by the Company of such In-the-Money Company Option’s pro rata share of the Option Cancellation Price, as set forth on Schedule 1.6(a). Parent and without any action on the part Company agree to treat the payment for tax purposes as not allocable to the portion of any holder of the day after the Effective Time. Each Out-of-the-Money Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are Option outstanding as of immediately prior to at the Effective Time shall fully vest and become exercisablebe deemed assumed by Parent, and become Vested Company Options, from and (B) to the extent not exercised prior to after the Effective Time, (i) each outstanding Out-of-the Money Company Option shall be cancelled and converted into entitle the right holder thereof to receive acquire the applicable payments set forth in this Section 1.5(b).
number of shares of Parent Common Stock (iirounded down to the nearest whole number) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive determined by multiplying (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying subject to such Out-of-the Money Company Option plus immediately prior to the Effective Time by (B) one CVR with respect the Option Exchange Ratio and (ii) the exercise price per share of Parent Common Stock subject to each such assumed Out-of-the Money Company Options at and after the Effective Time shall be an amount (rounded up to the nearest one-hundredth of a cent) equal to (A) the exercise price per share of Company Common Stock subject to the Out-of-the Money Company Option prior to the Effective Time divided by (B) the Option Exchange Ratio. Other than as provided above and except as provided in the relevant Company Option agreement, each assumed Out-of-the Money Company Option shall be subject to the same vesting schedule and other terms and conditions for such Company Option as in effect immediately prior to the Effective Time. The Surviving Corporation A calculation of the number of shares of Parent Common Stock and revised exercise price applicable to the Out-of-the-Money Company Options as of the Effective Time shall pay be provided on Schedule 1.6(b) as of the cash amounts payable pursuant to Section 1.5(b)(ii)(AClosing Date (which Schedule 1.6(b) (the “Company Option Cash Consideration”), without interest thereon and shall be subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving CorporationParent’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.reasonable approval). For purposes hereof:
Appears in 1 contract
Samples: Merger Agreement (Valueclick Inc/Ca)
Company Options. (i) Neither Immediately prior to the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stockEffective Time, in connection with by virtue of the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder Parent, Merger Sub, the Company or the holders of Company Options, the vesting of each Company Option that is outstanding, unexercised and unexpired, shall be accelerated in full so that each such Company Option is fully vested and exercisable. In addition, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holders of Company Options, each Company Option (Ataking into account the vesting acceleration provided above) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest terminate and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and will be converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to for each share of Company Common Stock that would be obtainable upon exercise of the Company Option as of immediately prior to Effective Time an amount equal to the positive result of (1) the Per Share Residual Amount, minus (2) the exercise price required to be paid to acquire the corresponding share of Company Common Stock (it being understood and agreed that such exercise price shall not actually be paid to the Company by the holder of a Company Option). As soon as practicable (and in no event more than five (5) calendar days) following the Effective Time, provided a Company Optionholder has surrendered Exchange Documents, duly completed and validly executed in accordance with the instructions theretoto, Parent shall pay in cash to such Company Optionholder the Closing Merger Consideration (if any) required to be paid to such Company Optionholder pursuant to this Section 2.7(f)(i) less (a) the Pro Rata Portion of the Escrow Amount attributable to such shares of the Company Capital Stock subject to such Company Option immediately prior contributed to the Effective Time. The Surviving Corporation shall pay the cash amounts payable Escrow Agent on such holder’s behalf pursuant to Section 1.5(b)(ii)(A2.9(a) hereof and (the “Company Option Cash Consideration”), without interest thereon and subject b) applicable Taxes required to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and be withheld with respect to a CVR such payment payments; provided, however, that the payments otherwise payable to the individuals set forth on Schedule 2.7(f)(i) will be made, without interest thereon held by Parent and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodindividuals on January 15, 2007.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 1 contract
Company Options. (a) Prior to the Effective Time, the Company shall take all actions (including obtaining any necessary determinations and/or resolutions of the Company Board or a committee thereof) that may be necessary (under the Company Equity Plans and award agreements pursuant to which Company Options are outstanding or otherwise) to (i) Neither accelerate the Surviving Corporation nor Parent shall assume any Company Options or substitute for any vesting and exercisability (as applicable) of each unvested Company Option any option for then outstanding so that each such Company Option shall be fully vested and exercisable (as applicable) effective as of immediately prior to, and contingent upon, the Surviving Corporation or Parent stockEffective Time in accordance with Sections 2.8(a) and 2.8(b), (ii) terminate each Company Equity Plan (except as otherwise agreed by Parent) effective as of and contingent upon the Effective Time and (iii) following the vesting acceleration described in connection with the Merger or any of the other Transactions. Effective (i) above, cause, as of the Effective Time Time, each unexpired and without any action on the part of any holder of unexercised Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are Option then outstanding as of immediately prior to the Effective Time shall fully vest (and become exercisableeach plan, and become Vested if any, under which any Company OptionsOption may be granted except, and (Bwith respect to any such plan, as otherwise agreed by Parent) to be cancelled, terminated and extinguished, subject, if applicable, to payment pursuant to Section 2.8.
(b) Prior to the extent not exercised Offer Acceptance Time, the Company shall take all actions that may be necessary to terminate any repurchase rights of the Company with respect to any Restricted Shares then outstanding as of immediately prior to the Offer Acceptance Time.
(c) As soon as reasonably practicable following the date of this Agreement and in any event prior to the Effective TimeTime and not later than the day immediately prior to the date on which the first offering period that is regularly scheduled to commence under the ESPP after the date of this Agreement, the Company will take all necessary actions, including obtaining any necessary determinations or resolutions of the Company Board (or a committee thereof), if appropriate, and amending the terms of the ESPP as may be necessary or required under the ESPP and applicable Laws, to (i) provide that each Company Option shall individual participating in the Offering (as defined in the ESPP) in progress on the date of this Agreement (the “Final Offering”) will not be cancelled and converted into permitted to increase the right percentage of his or her earnings (as defined in the Final Offering documents) pursuant to receive the ESPP from the individual’s applicable payments set forth elected Table of Contents percentage of earnings that was in effect when that Offering commenced, or make any non-payroll contributions to the ESPP on or following the date of this Section 1.5(b).
Agreement; (ii) At ensure that, except for the Effective TimeFinal Offering, no offering period under the ESPP will be authorized or commenced on or after the date of this Agreement; (iii) if the Closing will occur prior to the end of the Final Offering, provide each Company Option individual participating in the Final Offering with notice of the transactions contemplated by this Agreement prior to the Closing Date; (iv) cause the Final Offering to end on the date that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal immediately prior to the excess, if any, Closing Date; (v) make any pro rata adjustments that may be necessary to reflect the shortened Purchase Period (as defined in the ESPP) of the Per Share Cash Consideration over Final Offering, but otherwise treat such shortened Purchase Period of the exercise price per share of such Company Option, multiplied by Final Offering as a fully effective and completed Purchase Period for all purposes pursuant to the number of ESPP; (vi) cause each ESPP participant’s accumulated contributions under the ESPP to be used to purchase shares of Company Common Stock underlying such Company Option plus in accordance with the ESPP as of the end of the Final Offering; (Bvii) one CVR with respect to each share of provide that the applicable purchase price for Company Common Stock subject to such Company Option immediately prior to will not be decreased below the levels set forth in the ESPP as of the date of this Agreement; and (viii) ensure that no further rights are granted under the ESPP after the Effective Time. The Surviving Corporation shall pay Immediately prior to and effective as of the cash amounts payable pursuant Effective Time (but subject to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”consummation of the Transactions), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following Company will terminate the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodESPP.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 1 contract
Company Options. (iA) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time Time, each Company Option (or portion thereof), whether vested or unvested, that is held by a Continuing Employee and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are is outstanding and unexercised as of immediately prior to the Effective Time shall fully vest and become exercisablebe assumed by Parent as a Parent Option. Except as otherwise set forth in this Agreement, each Company Option so assumed by Parent pursuant to this Section 1.6(c)(i)(A) shall continue to have, and become Vested Company Optionsbe subject to, the same terms and conditions (Bincluding vesting terms) to set forth in the extent not exercised Plan and the option agreements relating thereto, as in effect immediately prior to the Effective Time, each except that (x) such assumed Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option exercisable for that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash number of whole shares of Parent Common Stock equal to the excess, if any, product of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying that were issuable upon exercise of such Company Option plus immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock and (y) the per share exercise price for the shares of Parent Common Stock issuable upon exercise of such assumed Company Option shall be equal to the quotient obtained by dividing the exercise price per share of Company Common Stock at which such assumed Company Option was exercisable immediately prior to the Closing Date by the Exchange Ratio, rounded up to the nearest whole cent. Notwithstanding anything herein to the contrary, the exercise price of the option, the number of shares purchasable pursuant to such option and the terms and conditions of exercise of such option shall in all events be determined in order to comply with Section 409A of the Code, and in the case of any Company Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code, Section 424 of the Code.
(B) one CVR with respect Effective as of the Effective Time, (1) each Company Option (or portion thereof), whether vested or unvested, that is held by a Non-Continuing Employee, and (2) each Vested Company Option that is held by a Departing Employee, in each case, that is outstanding and unexercised as of immediately prior to the Effective Time shall, by virtue of the Merger, be immediately cancelled and the holder thereof shall be entitled to receive, upon the terms and subject to the conditions set forth in this Section 1.6(c)(i)(B) and throughout this Agreement and in consideration of such cancellation, an amount in cash, without interest, equal to the excess of the Per Share Consideration for each share of Company Common Stock subject to such Company Option immediately prior to over the Effective Timeper share exercise price of such Company Option. The Surviving Corporation Promptly following the Closing, Parent shall pay (or cause to be paid) the cash amounts payable pursuant to this Section 1.5(b)(ii)(A1.6(c)(i)(B) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodOptions.
(iiiC) At Effective as of the Effective Time, each unvested Company Option that is then held by a Departing Employee and is outstanding and unexercised and that has an exercise price per share that is equal as of immediately prior to the Effective Time shall, by virtue of such Departing Employee’s termination of employment or greater than service with the Per Share Cash Consideration shall Company on or prior to the Effective Time, be immediately cancelled with no consideration payable in respect thereofwithout the payment of any consideration.
Appears in 1 contract
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to At the Effective Time, each Company Option shall award that is vested immediately prior to the Effective Time shall, automatically and without any required action on the part of the holder thereof, be cancelled and converted into the right to receive receive, on the first regularly scheduled payroll date following the Closing Date, an amount in cash, without interest and less applicable payments set forth in this Section 1.5(b)Tax withholdings, equal to the product of (1) the total number of Shares subject to such Company Option award immediately prior to the Effective Time multiplied by (2) the excess, if any, of (A) the Per Share Merger Consideration over (B) the exercise price per Share of such Company Option; provided, however, that any such vested Company Option for which the exercise price per share of the Shares subject to such Company Option immediately prior to the Effective Time is equal to or greater than the Merger Consideration shall be cancelled at the Closing without payment of consideration.
(ii) At the Effective Time, each Company Option award that is then outstanding unvested immediately prior to the Effective Time shall, automatically and unexercised without any required action on the part of the holder thereof, cease to represent an option to purchase Shares and which has shall be converted into an option to purchase a number of shares of Parent Common Stock (each, a “Parent Option”) equal to the product (rounded down to the nearest whole number) of (1) the total number of Shares subject to such Company Option award immediately prior to the Effective Time multiplied by (2) the Equity Award Exchange Ratio, at an exercise price per share exercise price that is less than (rounded up to the Per Share Cash Consideration shall be cancelled and converted into the right nearest whole cent) equal to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock Shares subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay Time divided by (B) the cash amounts payable Equity Award Exchange Ratio; provided, however, that the exercise price and the number of shares of Parent Common Stock purchasable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated Parent Options shall be determined in Section 1.6, on a manner consistent with the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation requirements of Section 409A of the Code; provided, further, that in the case of any Company Option to which Section 422 of the Code applies, the exercise price and notwithstanding anything the number of shares of Parent Common Stock purchasable pursuant to such Parent Option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided above and for any terms rendered inoperative by reason of the transactions contemplated by this Agreement or for such other changes that are necessary for the administration of such Parent Option and not detrimental to the contrary contained hereinholder thereof, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At following the Effective Time, each Parent Option shall continue to be governed by the same terms and conditions (including vesting and exercisability terms) as were applicable to the corresponding Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than immediately prior to the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereofEffective Time.
Appears in 1 contract
Samples: Merger Agreement (LHC Group, Inc)
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(iia) At the Effective Time, each then-outstanding Company Option, whether vested or unvested, shall be cancelled as follows: (i) in the case of a Company Option that is then outstanding and unexercised and which has having a per share exercise price that is less than the Per Share Cash Consideration Merger Consideration, such Company Option shall be cancelled and converted into in exchange for the right to receive (A) an amount in cash equal to from the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to Surviving Corporation for each share of Company Common Stock subject to such Company Option immediately prior to the Effective TimeTime an amount (subject to any applicable withholding Tax) in cash equal to the product of (A) the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time and (B) the amount by which the Merger Consideration exceeds the per share exercise price of such Company Option, or (ii) in the case of a Company Option having a per share exercise price equal to or greater than the Merger Consideration, such Company Option shall be cancelled without the payment of cash or issuance of other securities in respect thereof. The cancellation of a Company Option as provided in the immediately preceding sentence shall be deemed a release of any and all rights the holder thereof had or may have had in respect of such Company Option. The aggregate amount paid or payable in respect of the cancellation of the Company Options as set forth in this Section 3.2(a) is referred to herein as the “Option Consideration.” Unless provision is made with the Paying Agent, the Surviving Corporation shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “shall, as soon as reasonably practicable after its receipt of a duly executed transmittal letter from each holder of a Company Option Cash Consideration”)entitled to receive Option Consideration hereunder (and in no event more than ten (10) Business Days thereafter) mail to each holder of a Company Option the applicable Option Consideration to which they are due, without interest thereon and subject to deduction for any required applicable withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following Tax.
(b) Prior to the Effective Time, and with respect the Company shall take such actions as may be necessary to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, give effect to the extent required to avoid a violation of transactions contemplated by this Section 409A 3.2, including, but not limited to, satisfaction of the Coderequirements of Rule 16b-3(e) under the Exchange Act.
(c) The Company Option Plans shall terminate as of the Effective Time and the provisions in any other plan, and notwithstanding anything to program or arrangement providing for the contrary contained herein, payment issuance or grant of any other interest in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect capital stock of the CVR Company or any Subsidiary thereof shall be paid canceled as of the Effective Time. The Company shall ensure that following the Effective Time no participant in the Company Option Plans or other plans, programs or arrangements shall have any right thereunder to acquire any holder equity securities of Company Options after such five-year periodthe Company, the Surviving Corporation or any Subsidiary thereof.
(iiid) At Prior to the Effective Time, each the Company Option that is then outstanding shall deliver to the holders of Company Options notices, in form and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereofsubstance reasonably acceptable to Parent, setting forth such holders’ rights pursuant to this Agreement.
Appears in 1 contract
Company Options. (i) Neither At the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stockEffective Time, in connection with by virtue of the Merger or any of the other Transactions. Effective as of the Effective Time and without any further action on the part of any holder of Party, the Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option Stock Plans shall be cancelled and converted into assumed by the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) SPAC. At the Effective Time, each Company Option shall, by virtue of the Merger and without any further action on the part of any Party or the holder thereof, (i) whether such Company Option is vested or unvested, be assumed by SPAC and become, as of the Effective Time, an option (an “Assumed Option”) to purchase, on the same terms and conditions (including applicable vesting, exercise and expiration provisions) as applied to each such Company Option immediately prior to the Effective Time, shares of SPAC Class A Common Stock, except that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash the number of shares of SPAC Class A Common Stock subject to such Assumed Option shall equal to the excess, if any, product of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by (x) the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock that were subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation , multiplied by (y) the Exchange Ratio, rounded down to the nearest whole share, and (B) the per-share exercise price shall pay equal the cash amounts payable pursuant to Section 1.5(b)(ii)(Aquotient of (1) (the “exercise price per share of Company Common Stock at which such Company Option Cash Consideration”), without interest thereon and subject was exercisable immediately prior to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, divided by (2) the Exchange Ratio, rounded up to the nearest whole cent and (ii) solely in the case of Company Options that are vested as of immediately prior to the Effective Time (after taking into consideration any acceleration required by the terms of the Assumed Option in effect as of the date of this Agreement), have the contingent right to receive the Earnout Shares in accordance with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding Section 3.05; provided that each Company Option (A) which is an “incentive stock option” (as contemplated defined in Section 1.6, if, 422 of the Code) shall be adjusted in accordance with the requirements of Section 424 of the Code and only if, (B) shall be adjusted in a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of manner that complies with Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 1 contract
Company Options. (i) Neither At the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Effective Time, each Company Option any option for the Surviving Corporation or Parent stockthat is vested, in connection with the Merger or any of the other Transactions. Effective as of outstanding, and unexercised immediately prior to the Effective Time and shall, in each case, without any action on the part of any Parent, Merger Sub, the Company or the holder thereof, automatically be canceled, with the holder of such Company OptionsOption becoming entitled to receive in full satisfaction of the rights of such holder with respect thereto, an amount in cash equal to the product obtained by multiplying (A) all Unvested the excess of the Per Share Price over the per share exercise price of such Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisableOption, and become Vested Company Options, and by (B) to the extent not exercised number of Company Ordinary Shares covered by such Company Option immediately prior to the Effective Time, each less any applicable Tax withholdings pursuant to Section 2.12 (the “Option Consideration”). The Surviving Company shall pay the Option shall be cancelled and converted into Consideration as promptly as practicable following the right Closing Date, but no later than the second regularly scheduled payroll date following the Closing Date, pursuant to receive the applicable payments set forth Company Group’s ordinary payroll processes (or, in the case of holders of Company Options who are not current or former employees, pursuant to the Company Group’s ordinary payment practices with respect to such individuals), and, if applicable, subject to Section 2.8(d) of this Section 1.5(b)Agreement.
(ii) At the Effective Time, each Company Option (other than a Company Option held by a non-employee director of the Company) that is then outstanding immediately prior to the Effective Time and unexercised and which has a per share exercise price that is less than scheduled to vest after the Per Share Cash Consideration shall be cancelled and converted into the right to receive Closing Date (A) an amount in cash equal to the excess, if any, as of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time) shall, in each case, without any action on the part of Parent, Merger Sub, the Company or the holder thereof, automatically be canceled and converted into a contingent right to receive an amount in cash, without interest (a “Contingent Cash Award”), equal to the Option Consideration with respect to such Company Option. Such Contingent Cash Award shall (A) in the case of any portion of such Contingent Cash Award relating to a Company Option that would have otherwise vested on or prior to December 31, 2022, vest and become payable pursuant to the same vesting schedule applicable to the Company Option from which it was converted, subject to the holder’s continued employment with or service to Parent and its Affiliates (including the Surviving Company and its Subsidiaries) through the applicable vesting dates, and (B) in the case of any portion of such Contingent Cash Award relating to a Company Option that would have otherwise vested following December 31, 2022, vest and become payable as of the June 30th or December 31st (each, an “Accelerated Vesting Date”) immediately preceding the original vesting date applicable to such Company Option, subject to the holder’s continued employment with or service to Parent and its Affiliates (including the Surviving Company and its Subsidiaries) through the applicable Accelerated Vesting Date. For example, (x) any portion of a Contingent Cash Award that relates to a Company Option that would have otherwise vested between January 1, 2023 and June 30, 2023 shall vest on December 31, 2022, subject to the holder’s continued employment with or service to Parent and its Affiliates (including the Surviving Company and its Subsidiaries) through December 31, 2022, and (y) any portion of a Contingent Cash Award that relates to a Company Option that would have otherwise vested between July 1, 2023 and December 31, 2023 shall vest on June 30, 2023, subject to the holder’s continued employment with or service to Parent and its Affiliates (including the Surviving Company and its Subsidiaries) through June 30, 2023. Except as otherwise set forth in this Section 2.8(a)(ii), each such Contingent Cash Award shall remain subject to the same terms and conditions as were applicable to the Company Option from which it was converted immediately prior to the Effective Time (except for any terms rendered inoperative by reason of the transactions contemplated by this Agreement or such other administrative or ministerial changes as in the reasonable and good faith determination of Parent are appropriate to conform the administration of the Contingent Cash Awards). The Surviving Corporation Company shall pay the cash amounts payable due under this Section 2.8(a)(ii) pursuant to Section 1.5(b)(ii)(A) the Company Group’s ordinary payroll practices (or, in the “case of holders of Company Option Cash Consideration”)Options who are not current or former employees, without interest thereon and subject pursuant to deduction for any required withholding as contemplated in Section 1.6, on the Surviving CorporationCompany Group’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and payment practices with respect to a CVR such payment will be madeindividuals), without interest thereon and and, if applicable, subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders 2.8(d) of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodthis Agreement.
(iii) At the Effective Time, each Company Option held by a non-employee director of the Company that is then unvested and outstanding immediately prior to the Effective Time shall, in each case, without any action on part of Parent, Merger Sub, the Company or the holder thereof, automatically be canceled and unexercised and converted into the right to receive an amount in cash, without interest, equal to the Option Consideration with respect to such Company Option. The Surviving Company shall pay the amounts due pursuant to this Section 2.8(a)(iii) as soon as practicable following the Closing Date, pursuant to the Company Group’s ordinary payment practices with respect to such non-employee directors and, if applicable, subject to Section 2.8(d) of this Agreement.
(iv) Notwithstanding the foregoing, any Company Option (whether vested or unvested) that has an a per share exercise price per share that is equal to or greater than the Per Share Cash Consideration Price shall be cancelled with automatically canceled for no consideration payable in respect as of the Effective Time, without any action on the part of Parent, the Company, or the holder thereof.
Appears in 1 contract
Samples: Merger Agreement (Tufin Software Technologies Ltd.)
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding award, whether vested or unvested, shall, automatically and unexercised without any required action on the part of the holder thereof, cease to represent an option to purchase Shares and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right an option to receive purchase a number of shares of Parent Common Stock (Aa “Parent Option”) an amount in cash equal to the excessproduct (rounded down to the nearest whole number) of (i) the total number of Shares subject to such Company Option award immediately prior to the Effective Time multiplied by (ii) the Equity Award Exchange Ratio, if any, of at an exercise price per share (rounded up to the Per Share Cash Consideration over nearest whole cent) equal to (i) the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock Shares subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay Time divided by (ii) the cash amounts payable Equity Award Exchange Ratio; provided, however, that the exercise price and the number of shares of Parent Common Stock purchasable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated Parent Options shall be determined in Section 1.6, on a manner consistent with the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation requirements of Section 409A of the Code; provided, further, that in the case of any Company Option to which Section 422 of the Code applies, the exercise price and notwithstanding anything the number of shares of Parent Common Stock purchasable pursuant to such Parent Option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided above and for any terms rendered inoperative by reason of the transactions contemplated by this Agreement or for such other changes that are necessary for the administration of such Parent Option and not materially detrimental to the contrary contained hereinholder thereof, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At following the Effective Time, each Parent Option shall continue to be governed by the same terms and conditions (including vesting and exercisability terms) as were applicable to the corresponding Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than immediately prior to the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereofEffective Time.
Appears in 1 contract
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Each Company Option any option that is issued and outstanding as of immediately prior to the First Effective Time and then held by a Pre-Closing Holder who has been actively employed by the Company for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective at least 730 consecutive days as of the First Effective Time shall accelerate and become fully vested as of the First Effective Time in accordance with the terms of the Company Equity Plan. As of the First Effective Time, each Company Option, whether vested or unvested (after taking into account any acceleration of vesting pursuant to the immediately preceding sentence), that is outstanding immediately prior to the First Effective Time shall, by virtue of the occurrence of the First Effective Time and without any action on the part of any holder of Company Optionsthe Company, (A) all Unvested Company Options (whether timeAcquiror or the Pre-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisableClosing Holder thereof, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled assumed and converted into the right an option (an “Acquiror Option”) with respect to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash number of Acquiror Common Shares equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock Shares subject to such Company Option immediately prior to the First Effective Time. The Surviving Corporation shall pay Time multiplied by the cash amounts payable pursuant Option Exchange Ratio, and rounded down to Section 1.5(b)(ii)(A) (the “nearest whole share and at an exercise price per Acquiror Common Share equal to the exercise price per Company Common Share subject to such Company Option Cash Consideration”)divided by the Option Exchange Ratio, without interest thereon and rounded up to the nearest whole cent; provided that the exercise price and the number of Acquiror Common Shares subject to deduction for any required withholding as contemplated the Acquiror Option shall be determined in Section 1.6, on a manner consistent with the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation requirements of Section 409A of the Code, and notwithstanding anything to and, in the contrary contained herein, payment in respect case of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is intended to qualify as an “incentive stock option” within the meaning of Section 422 of the Code, consistent with the requirements of Section 424 of the Code. Except as otherwise provided in this Section 2.2(b)(i), each Acquiror Option shall continue to be subject to the terms and conditions of the Company Equity Plan and the applicable Company Option award agreement, as in effect immediately prior to the First Effective Time. In addition, immediately prior to the First Effective Time, each Pre-Closing Holder who is then outstanding actively employed by the Company and unexercised and holds a Company Option (an “Employee Earn Out Recipient”) shall receive such Pre-Closing Holder’s Pro Rata Allocation of the Earn Out Shares, provided that has an exercise price per share the vesting conditions for any such Employee Earn Out Recipient shall also require that is equal or greater than such Employee Earn Out Recipient remains in continuous employment through the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereofapplicable vesting date.
Appears in 1 contract
Company Options. (i) Neither At the Surviving Corporation nor Parent shall assume any Effective Time, each option to purchase shares of Company Options or substitute for any Common Stock pursuant to the Stock Plan (each, a “Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of Option”) that is outstanding and unexercised immediately prior to the Effective Time and shall automatically, without any action on the part of any the holder of Company Optionsthereof, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled assumed by Parent and converted into the right an option to receive the applicable payments set forth in this Section 1.5(b).
purchase a number of shares of Parent Class A Common Stock (iieach, an “Assumed Option”) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excess, if any, product of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by (1) the number of shares of Company Common Stock underlying that were issuable upon exercise of such Company Option plus immediately prior to the Effective Time multiplied by (B2) one CVR the Per Share Exchange Amount (rounded down to the nearest whole number of shares of Parent Class A Common Stock, with respect no cash being payable for any fractional share eliminated by such rounding), at an exercise price per share of Parent Class A Common Stock equal to each the quotient obtained by dividing the exercise price per share of Company Common Stock subject at which such Company Option was exercisable immediately prior to the Effective Time by the Per Share Exchange Amount (rounded up to the nearest whole cent).
(ii) In addition, as soon as reasonably practicable following the Effective Time, each holder of Company Options shall receive for each outstanding share of Company Common Stock underlying a Company Option, (A) an award of restricted stock units of Parent denominated in a number of shares of Parent Class A Common Stock (each, a “Parent Warrant RSU”) equal to the product of (1) the number of shares of Company Common Stock that were issuable upon exercise of such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay , multiplied by (2) the Warrant Exchange Amount, multiplied by (3) the Closing Warrant Value Amount (rounded down to the nearest whole number of shares of Parent Class A Common Stock, with no cash amounts being payable pursuant for any fractional share eliminated by such rounding) and (B) an award of restricted stock units of Parent denominated in a number of shares of Parent Class A Common Stock (each, a “Parent Earn Out RSU”) equal to Section 1.5(b)(ii)(Athe product of (1) (the “number of shares of Company Common Stock that were issuable upon exercise of such Company Option Cash Consideration”)immediately prior to the Effective Time multiplied by (2) the Earn Out Exchange Amount (rounded down to the nearest whole number of shares of Parent Class A Common Stock, without interest thereon and subject to deduction with no cash being payable for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR fractional share eliminated by such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodrounding).
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 1 contract
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each outstanding Company Option under the Company Stock Option Plan or Company Unit Plan whether or not vested, shall by virtue of the Merger be assumed by Parent. Each Company Option so assumed by Parent under this Agreement will continue to have, and be subject to, the same terms and conditions of such options immediately prior to the Effective Time except that: (x) each Company Option will be solely exercisable (or will become exercisable in accordance with its terms) for that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash number of whole shares of Parent common stock equal to the excess, if any, product of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share that were issuable upon exercise of Company Common Stock subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay Time multiplied by the cash amounts payable pursuant Option Exchange Ratio (as defined below), rounded down to Section 1.5(b)(ii)(Athe nearest whole number of shares of Parent common stock and (y) (the “per share exercise price for the shares of Parent common stock issuable upon exercise of such assumed Company Option Cash Consideration”), without interest thereon and subject will be equal to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is quotient determined by dividing the exercise price per share of Company Common Stock at least five Business Days following which such Company Option was exercisable immediately prior to the Effective TimeTime by the Option Exchange Ratio, rounded up to the nearest whole cent.
(ii) Parent shall comply with the terms of all such Company Options and with respect use its best efforts to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided thatensure, to the extent required by, and subject to avoid a violation of the provisions of, the Company Stock Option Plan and Company Unit Plan and permitted under the Code or other relevant laws and regulations that any Company Options that qualified for tax treatment under Section 409A 422 of the Code, and notwithstanding anything Code prior to the contrary contained hereinEffective Time continue to so qualify, payment in respect with the same rights, after the Effective Time. Parent shall take all corporate actions necessary to reserve for issuance a sufficient number of the CVR shall only be made shares of Parent common stock for delivery upon exercise of all Company Options pursuant to the extent such payment is made not later than five years after the Closing Date, and no amount terms set forth in respect of the CVR shall be paid this Section 2.6(d). Prior to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each the Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than shall take all actions necessary to effect the Per Share Cash Consideration transactions contemplated by this Section 2.6(d); provided, however, Company shall not be cancelled required to obtain consents from optionees with no consideration payable in respect thereofto the option assumption formula set forth herein.
Appears in 1 contract
Samples: Merger Agreement (Sonicwall Inc)
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of At the Effective Time and without any action on the part of any holder of except as set forth in Section 6.11(c)(ii), each Company OptionsOption (or portion thereof) that is outstanding, (A) all Unvested Company Options (whether time-based vested or performance-based) which are outstanding unvested, as of immediately prior to the Effective Time shall fully vest be assumed by Parent (each, an “Assumed Option”). Each such Assumed Option shall be subject to substantially the same terms and become exercisable, and become Vested Company Options, and (B) conditions as applied to the extent not exercised related Company Option immediately prior to the Effective Time, including the vesting schedule applicable thereto, except that (A) the number of shares of Parent Common Stock subject to each Company Assumed Option shall be cancelled equal to the product of (x) the number of shares of Company Common Stock underlying such unvested Assumed Option as of immediately prior to the Effective Time multiplied by (y) the Equity Award Exchange Ratio (with the resulting number rounded down to the nearest whole share), and converted into (B) the right per share exercise price of each Assumed Option shall be equal to receive the applicable payments set forth quotient determined by dividing (x) the exercise price per share at which such Assumed Option was exercisable immediately prior to the Effective Time by (y) the Equity Award Exchange Ratio (with the resulting price per share rounded up to the nearest whole cent). Each Assumed Option that qualified as an incentive stock option prior to the Effective Time shall continue to qualify as an incentive stock option as defined in Section 422 of the Code following the Effective Time to the extent permitted under Section 422 of the Code The assumption of Assumed Options pursuant to this Section 1.5(b)shall be effected in a manner that satisfies the requirements of Sections 409A and 424(a) of the Code and the Treasury Regulations promulgated thereunder, and this Section 6.11(c) will be construed consistent with this intent.
(ii) At the Effective Time, each Company Option (or portion thereof) that is then outstanding and unexercised vested as of immediately prior to the Effective Time (or vests as a result of the consummation of the transactions contemplated hereby) and held by a holder who is not an employee of the Company or its Subsidiaries as of immediately prior to the Effective Time (each, a “Cancelled Option”) shall, by virtue of the Merger and at the direction of Parent (which has a per share exercise price that is less than the Per Share Cash Consideration shall hereby given pursuant to this Agreement), be cancelled and terminated and converted into the right to receive the Merger Consideration in respect of each Net Option Share covered by such Cancelled Option; provided that, in lieu of the Merger Consideration, any fractional Net Option Share (Aafter aggregating all shares represented by all Cancelled Options held by such individual) an amount shall be settled in cash equal based on the Cash Equivalent Consideration (such consideration for each Net Option Share being hereinafter referred to as the excess“Option Consideration”). The holder of each Cancelled Option shall receive at the Effective Time from the Company, if anyor as soon as practicable thereafter (but in no even later than the Company’s first full payroll after the Effective Time) from the Surviving Company, of the Per Share Cash Consideration over Option Consideration. If the exercise price per share of any such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Cancelled Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal to or greater than the Per Share Cash Consideration shall Merger Consideration, such Company Option shall, by direction of Parent (which is hereby given pursuant to this Agreement), be cancelled with no consideration payable without any payment being made in respect thereof. The payment of Option Consideration to the holder of a Cancelled Option shall be reduced by any applicable tax withholding required under the Code, any Applicable Law, or as otherwise agreed by the parties at the time the Company Option was granted. The applicable taxes required to be withheld from the Option Consideration shall reduce first the Cash Consideration portion of the Option Consideration with any remaining amount reducing the Stock Consideration portion of the Option Consideration, with the value of the stock portion for purposes of such deduction determined based on the Parent Average Closing Price.
Appears in 1 contract
Samples: Merger Agreement (Oclaro, Inc.)
Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Initial Merger Effective Time, each Company Option that is then outstanding under the Company ESOP immediately prior to the Initial Merger Effective Time, whether vested or unvested, shall, automatically and unexercised and which has a per share exercise price that is less than without any required action on the Per Share Cash Consideration shall part of any holder or beneficiary thereof, be cancelled assumed by PubCo and converted into an option to purchase PubCo Class A Ordinary Shares (each, an “Assumed Option”) under the right PubCo Incentive Equity Plan, in accordance with the Payment Spreadsheet. Each Assumed Option shall continue to receive have and be subject to substantially the same terms and conditions as were applicable to such Company Option immediately prior to the Initial Merger Effective Time (including expiration date, vesting conditions, and exercise provisions, and the provisions requiring the holder of Assumed Options to not, prior to the six month anniversary of the Closing Date, directly or indirectly sell, make any short sale of, loan, hypothecate, pledge, offer, grant or sell any option or other contract for the purchase of, purchase any option or other contract for the sale of, or otherwise dispose of or transfer, or agree to engage in any of the foregoing transactions with respect to, any shares acquired upon exercise of an Assumed Option (and solely for purposes of calculating the 85% threshold set forth in Section 9.2(f), holders of Company Options subject to such lock-up restrictions shall be included in such calculation as if they had executed a counterpart of the Lock-Up Agreement with respect to such Company Options), except that (i) each Assumed Option shall be exercisable for that number of PubCo Class A Ordinary Shares equal to the product (rounded down to the nearest whole number) of (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock Ordinary Shares subject to such Company Option immediately prior to the Initial Merger Effective Time. The Surviving Corporation Time multiplied by (B) the Company Exchange Ratio; and (ii) the per share exercise price for each PubCo Class A Ordinary Share issuable upon exercise of the Assumed Option shall pay be equal to the cash amounts payable pursuant quotient (rounded up to Section 1.5(b)(ii)(Athe nearest whole cent) obtained by dividing (A) the “exercise price per share of Company Ordinary Shares subject to such Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, immediately prior to the extent required to avoid Initial Merger Effective Time by (B) the Company Exchange Ratio; provided, however, that the exercise price and the number of PubCo Class A Ordinary Shares purchasable under each Assumed Option shall be determined in a violation manner consistent with the requirements of Section 409A of the Code; provided, and notwithstanding anything further, that in the case of any Company Option to the contrary contained herein, payment in respect which Section 422 of the CVR Code applies, the exercise price and the number of PubCo Class A Ordinary Shares purchasable under such Assumed Option shall only be made to determined in accordance with the extent such payment is made not later than five years after foregoing in a manner that satisfies the Closing Date, and no amount in respect requirements of Section 424(a) of the CVR shall be paid to any holder of Company Options after such five-year periodCode.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 1 contract
Company Options. (i) Neither Except as otherwise provided in this Section 2.6(d), at the Surviving Corporation nor Parent Effective Time, each then outstanding Company Option, whether or not vested or exercisable as of immediately prior to, or as of, the Effective Time, shall assume any Company Options or substitute for any be assumed by Parent. Each Company Option so assumed by Parent under this Agreement shall generally continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Option (including any applicable stock option for agreement, the Surviving Corporation or Parent stock, in connection with the Merger or any of the Company Option Plan and other Transactions. Effective as of the Effective Time and without any action on the part of any holder of document evidencing such Company Options, (AOption) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable(including any repurchase rights or vesting provisions), and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, except that each Company Option so assumed by Parent shall be cancelled and converted into thereupon become exercisable (or shall become exercisable in accordance with its terms) for (x) that number of shares of Parent Common Stock (rounded down to the right to receive the applicable payments set forth in this Section 1.5(b).
(iinearest whole share) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by (1) the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay , multiplied by (2) the cash amounts payable pursuant to Section 1.5(b)(ii)(AOption Exchange Ratio, at (y) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share of Parent Common Stock equal to (1) the per share exercise price for the shares of Company Common Stock otherwise purchasable pursuant to such Company Option immediately prior to the Effective Time, divided by (2) the Option Exchange Ratio, provided that is equal or greater than the Per Share Cash Consideration such exercise price shall be cancelled with no consideration payable rounded up to the nearest whole cent.
(ii) Prior to the Effective Time, the Company shall take all action necessary to effect the transactions anticipated by this Section 2.6(d) under the Company Option Plan, all Company Option agreements and any other plan or arrangement of the Company, including by giving any required notice and obtaining any required consent contemplated thereby. Notice to holders of Company Options that are being assumed by Parent pursuant to Section 2.6(d)(i) shall set forth such Company Optionholders’ rights pursuant to the applicable Company Option Plan(s) and that the agreements evidencing the grants of such options shall continue in respect thereofeffect on the same terms and conditions (subject to the adjustments required by Section 2.6(d)(i) at the Effective Time).
Appears in 1 contract
Company Options. (i) Neither Each Company Option that is outstanding and unvested prior to the Surviving Effective Time shall be fully accelerated immediately prior to the Effective Time. Each Company Option that is outstanding and held by a participant in the Santur Corporation nor Parent 2011 Incentive Plan or in the Fixed Bonus Plan shall assume be terminated without any cash payment being made with respect thereto, provided that such Company Options or substitute for held by participants in the Santur Corporation 2011 Incentive Plan shall not be so cancelled with respect to any such participant who validly executes and delivers an Incentive Plan Acknowledgment in the form attached hereto as Exhibit E-2. Each remaining Company Option any option for (a “Participating Option”) that is outstanding and vested immediately prior to the Surviving Corporation or Parent stockEffective Time, including those whose vesting shall be accelerated immediately prior to the Effective Time, shall be terminated in connection accordance with the Merger or any terms of the other Transactions. Effective Company Stock Plans and shall represent only the right to receive, as of promptly as practicable after the Effective Time and subject to the terms and conditions of this Agreement including the terms of Sections 2(i), 2(j), 2(m) and 8(d)(v), and the receipt of a customary letter of transmittal or similar document containing terms substantially similar to those included in the Equityholder Acknowledgements, and for each share of Common Stock issuable upon the exercise of such Company Option, an amount in cash (without any action interest) equal to the positive difference, if any, between (i) the Merger Consideration that would otherwise have been payable in respect of such share of Common Stock pursuant to Section 2(e)(v) and (ii) the exercise price of such Company Option, as set forth on Schedule 2(g). For the part avoidance of any holder of Company Optionsdoubt, (A1) all Unvested each Company Options (whether time-based Option held by a participant in the Santur Corporation 2011 Incentive Plan or performance-based) which are the Fixed Bonus Plan that is outstanding as of immediately prior to the Effective Time shall fully vest and become exercisablebe terminated at the Effective Time in accordance with the terms of the Santur Corporation 2011 Incentive Plan or the Fixed Bonus Plan, as applicable, and become Vested Company Options, and (B) to the extent shall not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into represent the right to receive the applicable payments consideration set forth in this Section 1.5(b).
Section, provided that such Company Options held by participants in the Santur Corporation 2011 Incentive Plan shall not be so cancelled with respect to any such participant who validly executes and delivers an Incentive Plan Acknowledgment in the form attached hereto as Exhibit E-2, and (ii2) At the Effective Time, each any Company Option that is then outstanding and unexercised and which has with a per per-share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Merger Consideration that would otherwise have been payable in respect of a Company Share Cash Consideration pursuant to Section 2(e)(v) (assuming that all contingencies with respect to payment of such consideration were satisfied) shall be cancelled with no consideration payable in respect thereofwithout payment at the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Neophotonics Corp)
Company Options. (ia) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stockSubject to Section 6.5(c), in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
(ii) At at the Effective Time, each Company Option that is then outstanding and unexercised immediately prior to the Effective Time and which has a per share exercise price that is less than that, following assumption by Vibrant at the Per Share Cash Consideration Effective Time, will be eligible to be registered on Form S-8, whether or not vested, shall be cancelled assumed and converted into an option to purchase Vibrant Ordinary Shares (an “Assumed Option”) in a manner consistent with the right requirements of Section 409A and, for Company Options qualified under Section 422 of the Code, Section 424 of the Code, and Vibrant shall assume the Company Plan. All rights with respect to receive Company Capital Stock under Company Options assumed by Vibrant shall thereupon be converted into rights with respect to Vibrant Ordinary Shares. Accordingly, from and after the Effective Time: (i) each Assumed Option may be exercised solely for Vibrant Ordinary Shares, (ii) the number of Vibrant Ordinary Shares subject to each Assumed Option shall be determined by multiplying (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Capital Stock underlying that were subject to such Company Option plus Assumed Option, as in effect immediately prior to the Effective Time, by (B) one CVR with respect the Exchange Ratio, and rounding the resulting number down to the nearest whole number of Vibrant Ordinary Shares and (iii) the per share exercise price for the Vibrant Ordinary Shares issuable upon exercise of each Assumed Option shall be determined by dividing (A) the per share exercise price of Company Common Capital Stock subject to such Assumed Option, as in effect immediately prior to the Effective Time, by (B) the Exchange Ratio and rounding the resulting exercise price up to the nearest whole cent. Each Assumed Option shall continue to be subject to the same terms and conditions (including the vesting arrangements and other terms and conditions set forth in the Company Plan and the applicable stock option or other agreement) as in effect and applicable to the Assumed Option immediately prior to the Effective Time. The Surviving Corporation shall pay ; provided, however, that: (A) to the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (extent provided under the “terms of a Company Option, each Assumed Option Cash Consideration”)shall, without interest thereon and in accordance with its terms, be subject to deduction for further adjustment as appropriate to reflect any required withholding stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction with respect to Vibrant Ordinary Shares subsequent to the Effective Time and (B) the Vibrant Board or a committee thereof shall succeed to the authority and responsibility of the Company Board or any committee thereof with respect to each Assumed Option and the Company Plan.
(b) Vibrant shall file with the SEC, as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following soon as reasonably practicable after the Effective Time, and a registration statement on Form S-8, if available for use by Vibrant, relating to the Vibrant Ordinary Shares issuable with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated Assumed Options issued in accordance with Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period6.5(a).
(iiic) At Prior to the Effective Time, each the Company Option shall take all actions that is then outstanding may be necessary (under the Company Plan and unexercised otherwise) to effectuate the provisions of this Section 6.5 and that has an exercise price per share that is equal or greater to ensure that, from and after the Effective Time, holders of Company Options have no rights with respect thereto other than the Per Share Cash Consideration shall be cancelled with no consideration payable those specifically provided in respect thereofthis Section 6.5.
Appears in 1 contract
Company Options. (i) Neither Prior to the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Effective Time, each holder of an unexpired Company Option any option for the Surviving Corporation or Parent stock, in connection shall be provided with the Merger or any opportunity to exercise such Company Option. Subject to the provisions of the other Transactions. Effective as of the Effective Time Sections 3.4, 3.7 and without any action on the part of any holder of 3.8 and Article XI, each unexpired Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are Option outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested will be converted or cancelled as set forth in this Section 3.1(f).
(i) Company Options (Other than Out-of-the-Money Company Options) Outstanding on the Expiration Date. Each unexpired, and unexercised Company Option (Bother than Out-of-the-Money Company Options) to outstanding on the extent not exercised Expiration Date that remains outstanding immediately prior to the Effective Time will, effective as of the Effective Time, each Company Option shall be cancelled terminated and converted into the right to receive the applicable payments set forth in this Section 1.5(b).
receive, without interest, for each share of Company Common Stock subject thereto, (iiA) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive Rights Amount, (AB) an amount in cash equal to the excess, if any, excess of the Per Common Share Cash Closing Consideration over the exercise price per share of such Company OptionOption immediately prior to the Effective Time and (C) any Per Common Share Contingent Consideration payable from time to time pursuant to Section 3.4, multiplied by in each case payable in cash to the number holder thereof, subject to applicable Tax withholding. ** Portions of shares the Exhibit have been omitted and have been filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
(ii) Company Options (Other than Out-of-the-Money Company Options) Not Outstanding on the Expiration Date. Each unexpired, unexercised Company Option (other than Out-of-the-Money Company Options) not outstanding on the Expiration Date that is outstanding immediately prior to the Effective Time will, effective as of the Effective Time, be terminated and converted into the right to receive, without interest, for each share of Company Common Stock underlying subject thereto, (A) an amount equal to the excess of the Per Common Share Closing Consideration over the exercise price per share of such Company Option plus immediately prior to the Effective Time and (B) one CVR any Per Common Share Contingent Consideration payable from time to time pursuant to Section 3.4, in each case payable in cash to the holder thereof, subject to applicable Tax withholding
(iii) Out-of-the-Money Company Options. The Company will take all necessary and appropriate action so that each unexpired Out-of-the-Money Company Option outstanding as of the Effective Time, will, effective as of the Effective Time, be cancelled, without any consideration being payable in respect thereof, and have no further force or effect; provided, however, that, prior to the Effective Time, the holder of an Out-of-the-Money Company Option outstanding on the Expiration Date that remains outstanding immediately prior to the Effective Time may elect to (A) pay the Company, with respect to each share of Company Common Stock subject to such Company Option, an amount in cash (the “Out-of-the-Money Per Share Cash Exercise Amount”) equal to (1) the per share exercise price of such Company Option immediately prior minus (2) an amount equal to the Effective Time. The Surviving Corporation shall pay sum of the cash amounts Per Common Share Closing Consideration and the Per Share Rights Amount plus (3) the portion of the Escrow Amount attributable to such share pursuant to this Article III and (B) deliver to the Company a written agreement or other instrument, duly executed by such holder and in form and substance reasonably satisfactory to each of the Company and Parent, evidencing the foregoing and acknowledging the treatment of such holder’s Out-of-the-Money Company Options pursuant to this Section 3.1(f)(iii), whereupon such holder will thereafter be entitled to receive, for each share of Company Common Stock subject to such Company Option, (I) upon the release of the Escrow Fund to the Stockholders in accordance with the Escrow Agreement, the portion of the Escrow Fund attributable to such share and (II) any Per Common Share Contingent Consideration payable from time to time pursuant to Section 1.5(b)(ii)(A) (3.4, in each case payable in cash to the “Company Option Cash Consideration”)holder thereof, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following applicable Tax withholding.
(iv) From and after the Effective Time, all Company Options will no longer be outstanding and will be automatically cancelled and will cease to exist, and each such option will cease to have any rights with respect thereto, except the right to receive (subject to the terms of this Agreement) the applicable consideration (if any) with respect to such option set forth in this Section 3.1(f). Within two (2) business days after the execution and delivery of this Agreement, the Company will deliver to each holder of a CVR such Company Option any notice contemplated by the Company Options regarding the Merger and the other transactions contemplated by this Agreement. ** Portions of the Exhibit have been omitted and have been filed separately pursuant to an application for confidential treatment filed with the Securities and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended.
(v) For purposes of Code section 409A, each payment will of any Per Common Share Contingent Consideration under this Agreement shall be madetreated as a separate payment, without interest thereon and any right to a series of payments in respect of any Per Common Share Contingent Consideration under this Agreement shall be treated as a right to receive a series of separate payments. It is further expressly intended that any right to any Per Common Share Contingent Consideration shall be subject to deduction for a substantial risk of forfeiture, as described in Treas. Reg. §§ 1.409A-1(d) and 1.409A-3(i)(5)(iv)(A). Notwithstanding the foregoing, it is intended that this Section 3.1(f) be drafted and administered in compliance with Code section 409A including any required withholding as contemplated in Section 1.6, iffuture amendments to Code section 409A, and only if, any other Internal Revenue Service or other governmental rulings or interpretations (“IRS Guidance”) issued pursuant to Code section 409A so as not to subject the holder of a Contingent Payment is made and will be made at the same time such Contingent Payment is made Company Option to other holders payment of CVRs; provided thatinterest or any additional tax under Code section 409A. In addition, to the extent required to avoid that any IRS Guidance issued under Code section 409A would result in the holder of a violation of Section 409A of the Code, and notwithstanding anything Company Option being subject to the contrary contained hereinpayment of interest or any additional tax under Code section 409A, payment in respect of the CVR shall only be made parties agree, to the extent reasonably possible, to amend this Section 3.1(f) in order to avoid the imposition of any such payment is made not later than five years after interest or additional tax under Code section 409A, which amendment shall have the Closing Dateminimum economic effect necessary and be reasonably determined in good faith by the parties to the Agreement and shall not, and no amount in respect any event, affect the consideration received or to be received by the other holders of the CVR shall be paid to any holder of Company Options after such five-year periodSecurities under this Agreement.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 1 contract
Samples: Merger Agreement (Cephalon Inc)
Company Options. (a) At the Effective Time, each outstanding option or warrant (a "Company Option") to purchase shares of Company Stock, whether or not exercisable, granted under any employee stock option plan, warrant plan for directors, or incentive plan of the Company (the "Company Option Plans") will be canceled, and in consideration of such cancellation, will be converted into the right to receive, without interest, an amount in cash (the "Cash Payment") equal to the product of (i) Neither the number of shares of Company Stock subject to the Company Option and (ii) the excess of (A) the Merger Consideration over (B) the exercise price per share of the Company Option; provided that, with respect to any Person subject to Section 16 of the Exchange Act, any such amount shall be paid, without interest, as soon as practicable after the first date payment can be made without liability of such Person under Section 16(b) of the Exchange Act. The Parent shall be 8/12/97 entitled to cause the Surviving Corporation nor Parent shall assume to withhold from amounts otherwise payable pursuant to this Section 1.05 any amount required to be withheld under applicable tax laws.
(b) The Company Options or substitute for any Company Option any option for will take such actions as may be necessary so that each employee participating in the Surviving Corporation or Parent stock, in connection with Company's employee stock purchase plan (the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A"ESPP") all Unvested Company Options (whether time-based or performance-based) which are outstanding as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option shall only be cancelled and converted into the right entitled to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excessresult of multiplying (i) the Merger Consideration by (ii) a fraction, if anythe numerator of which is the accumulated payroll deductions in the employee's account under the ESPP at the Effective Time, and the denominator of which is the Per Share Cash Consideration over purchase price for the exercise price per share of "Offering" or the "Purchase Period" (as such Company Option, multiplied by terms are defined in the number of shares of Company Common Stock underlying such Company Option plus (BESPP) one CVR with respect to each share of Company Common Stock subject to such Company Option in effect immediately prior to the Effective Time. The Surviving Corporation .
(c) Each holder of a Company Option, whether or not exercisable, shall pay have the cash amounts payable pursuant right, exercisable at any time prior to Section 1.5(b)(ii)(A) (the “expiration of the Offer by written notice to the Company and the Parent, to elect to receive from the Company the Cash Payment, without interest, in exchange for cancellation of such Company Option effective upon the date the Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that Payment is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, no such holder shall be entitled to receive the Cash Payment pursuant to this Section 1.05(c) unless the Minimum Condition has been met and Merger Sub has purchased shares of Company Stock pursuant to the extent required Offer. Any Cash Payments made pursuant to avoid a violation of this Section 409A 1.05(c) shall be made within two business days of the Code, and notwithstanding anything payment for shares of Company Stock pursuant to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodOffer.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
Appears in 1 contract
Samples: Merger Agreement (Isomedix Inc)
Company Options. (i) Neither Subject to Section 2.7(c)(ii) below, at the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Effective Time, by virtue of the Merger, each Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time that is outstanding and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based or performance-based) which are outstanding as of unexercised immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested Company Options, and (B) to the extent not exercised prior to the Effective Time, each Company Option whether or not vested, shall be cancelled and converted into canceled in exchange for the right to receive a lump sum cash payment (without interest) equal to the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive product of (A) an amount in cash equal to the excess, if any, of (1) the Per Share Cash Merger Consideration over (2) the exercise price per share of Company Share for such Company Option, multiplied by Option and (B) the total number of shares of Company Common Stock underlying such Company Option plus (B) one CVR the “Option Consideration”), less applicable withholding Taxes pursuant to Section 2.8(f). From and after the Effective Time, all Company Options shall no longer be outstanding and shall cease to exist, and each holder of a Company Options shall cease to have any rights with respect thereto or arising therefrom, except the right to each share of receive the Option Consideration payable hereunder. If the exercise price per Company Common Stock subject Share for any Company Option is equal to or greater than the Merger Consideration, such Company Option shall be canceled without payment of consideration.
(ii) With respect to Company Options that are outstanding but unvested immediately prior to cancellation of such unvested Company Options at the Effective Time as provided herein, the vesting schedule thereof shall, immediately prior to the Effective Time. The Surviving Corporation shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6be accelerated, on the Surviving Corporation’s next ordinary course payroll date such that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of all outstanding Company Options after at such five-year periodtime shall become vested.
(iii) At Prior to the Effective Time, the Company shall adopt resolutions and use reasonable best efforts to take other actions that are necessary under the Company Share Plans and/or award agreements (including providing Company Optionholders with notice of their rights with respect to any such Company Options as provided herein and/or seeking such Company Optionholders’ consents, in each case to the extent required by the terms of the applicable Company Share Plans or award agreements) to effectuate the provisions of this Section 2.7(c).
(iv) The amount of cash each Company Option that Optionholder is then outstanding and unexercised and that has an exercise price per share that is equal or greater than entitled to receive for the Per Share Cash Consideration Company Options held by such holder pursuant to Section 2.7(c)(i) above shall be cancelled with no consideration payable rounded up to the nearest cent and computed after aggregating cash amounts for all Company Options held by such holder.
(v) As of the Effective Time, the Company Share Plans 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 thereofof the share capital of the Company or any of its Subsidiaries shall be cancelled.
Appears in 1 contract
Company Options. (i) Neither At the Surviving Corporation nor Parent shall assume any Company Options or substitute for any First Effective Time, each Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any holder of Company Options, (A) all Unvested Company Options (whether time-based vested or performance-basedunvested) which are that is outstanding and unexercised as of immediately prior to the First Effective Time shall fully vest be assumed and become exercisableconverted into an option to purchase shares of Acquiror Class A Common Stock (each, an “Acquiror Option”), as set forth on the Allocation Schedule. Each such Acquiror Option as so assumed and converted shall continue to have, and become Vested Company Optionsshall be subject to, the same terms and (B) conditions as applied to the extent not exercised underlying Company Option immediately prior to the First Effective Time, each Company Time (but taking into account any changes thereto by reason of this Agreement or the Transactions). Each such Acquiror Option as so assumed and converted shall be cancelled and converted into an option to acquire (i) that number of whole shares of Acquiror Class A Common Stock (rounded down to the right nearest whole share) equal to receive the applicable payments set forth in this Section 1.5(b).
(ii) At the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive product of (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the First Effective Time. The Surviving Corporation shall pay Time and (B) the cash amounts payable pursuant Company Exchange Ratio, (ii) at an exercise price per share of Acquiror Class A Common Stock (rounded up to Section 1.5(b)(ii)(Athe nearest whole cent) equal to the quotient obtained by dividing (x) the “exercise price per share of Company Common Stock applicable to such Company Option Cash Consideration”)immediately prior to the First Effective Time by (y) the Company Exchange Ratio. Notwithstanding anything in this Section 3.01(c) to the contrary, without interest thereon the exercise price and the number of shares of Acquiror Class A Common Stock subject to deduction for any required withholding as contemplated the Acquiror Option shall be determined in Section 1.6, on a manner consistent with the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation requirements of Section 409A of the Code. In connection with this Agreement or the Transactions, and notwithstanding anything to the contrary contained hereinCompany may, payment in respect its sole discretion, suspend the exercise of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is then are outstanding and unexercised during the period commencing immediately prior to the effectiveness of the Registration Statement and that has an exercise price per share that is equal ending on the Closing, or greater than such other period as determined appropriate by the Per Share Cash Consideration shall be cancelled with no consideration payable Company in respect thereofits sole discretion.
Appears in 1 contract
Company Options. (i) Neither the Surviving Corporation nor Parent shall not assume any Vested Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of other transactions contemplated by this Agreement. Upon the other Transactions. Effective terms and subject to the conditions set forth in this Agreement, the Company shall take such action as of may be necessary so that immediately prior to the Effective Time and without any action on the part of any holder of Company OptionsTime, (Ai) all Unvested each Vested Company Options (whether time-based or performance-based) which are Option that remains outstanding as of immediately prior to the Effective Time shall fully vest be cancelled and become exercisable, and become Vested Company Optionsterminated as of the Effective Time, and (Bii) in consideration of such cancellation and termination, each holder of each such Vested Company Option shall be paid by the Company promptly following the Effective Time, subject to Section 3.8(e), an amount in cash (without interest), if any, equal to the extent not exercised product obtained by multiplying (x) the aggregate number of shares of Company Common Stock that were issuable upon exercise of such Vested Company Option immediately prior to the Effective Time, each and (y) the Offer Price, less the per share exercise price of such Vested Company Option shall be cancelled and converted into the right to receive the applicable payments set forth in this Section 1.5(b)Option.
(ii) At In connection with the transactions contemplated by this Agreement, at the Effective Time each Unvested Company Option shall be assumed by Parent (each, an “Assumed Option”). Each such Assumed Option shall be subject to the same terms and conditions as applied to the related Unvested Company Option immediately prior to the Effective Time, including the vesting schedule applicable thereto, except that (i) the number of shares of Parent Common Stock subject to each Company Assumed Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration shall be cancelled and converted into the right to receive (A) an amount in cash equal to the excess, if any, of the Per Share Cash Consideration over the exercise price per share of such Company Option, multiplied determined by multiplying the number of shares of Company Common Stock underlying subject to such Company Assumed Option plus as of immediately prior to the Effective Time by the Option Exchange Ratio (Bwith the resulting number rounded down to the nearest whole share), and (ii) one CVR with respect the per share exercise price of the Parent Common Stock issuable upon the exercise of each Assumed Option shall be equal to each the quotient determined by dividing the exercise price per share of Company Common Stock subject to such Company Option as of immediately prior to the Effective TimeTime by the Option Exchange Ratio, with the resulting price per share rounded up to the nearest whole cent. The Surviving Corporation It is the intention of the parties that each Assumed Option so assumed by Parent shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days qualify following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding Time as contemplated an incentive stock option as defined in Section 1.6, if, and only if, a Contingent Payment is made and will be made at 422 of the same time such Contingent Payment is made to other holders of CVRs; provided that, Code to the extent required to avoid a violation of permitted under Section 409A 422 of the Code, Code and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after Assumed Option qualifies as an incentive stock option prior to the Closing DateEffective Time and, further, that the assumption of Unvested Company Options pursuant to this Section shall be effected in a manner that satisfies the requirements of Sections 409A and 424(a) of the Code and the Treasury Regulations promulgated thereunder, and no amount in respect of the CVR shall this Section 3.7(e) will be paid to any holder of Company Options after such five-year periodconstrued consistent with this intent.
(iii) At With respect to Company Options a portion of which is vested and a portion of which is unvested, this Section 3.7(e) shall be applied by treating the vested portion as a separate Vested Company Option and the unvested portion as a separate Unvested Company Option.
(iv) The Company shall take all actions necessary to effect the transactions contemplated by this Section 3.7(e) under all Company Option agreements and any other plan or arrangement of the Company, including delivering all required notices and making any determinations and/or resolutions of the Company Board or a committee thereof. Parent shall take all actions reasonably necessary or appropriate to have available for issuance or transfer a sufficient number of shares of Parent Common Stock for delivery upon exercise of the Assumed Options. As promptly as practicable after the Effective Time, each Company Option that Parent shall prepare and file with the SEC a registration statement on Form S-8, to the extent such form is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereofavailable, registering a number of shares of Parent Common Stock necessary to fulfill Parent’s obligations under this Section 3.7(e) .
Appears in 1 contract
Samples: Merger Agreement (Emc Corp)
Company Options. (i) Neither At the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stockEffective Time, in connection with as a result of the Merger or any of the other Transactions. Effective as of the Effective Time and without any action on the part of any Acquiror, Merger Sub, the Company or the Company Holders, each then-outstanding Company Option, upon the terms and subject to the conditions set forth in this Section 1.9(a)(ii) and throughout this Agreement, including the holdback provisions set forth herein, shall be cancelled and extinguished and be converted automatically into the right to receive, upon execution and delivery by the applicable holder of such Company OptionsOption of an Option Cancellation Agreement with respect to such Company Option, in substantially the form attached hereto as Exhibit I (A) all Unvested an “Option Cancellation Agreement”), an amount in cash per share subject to the portion of such Company Options (whether time-based or performance-based) which are outstanding Option that is vested and exercisable as of immediately prior to the Effective Time shall fully vest and become exercisable, and become Vested equal to the difference between (A) the Company Options, Per Share Amount and (B) the per-share exercise price associated with such Company Option (subject to any applicable withholding obligations), in accordance with the Consideration Spreadsheet; provided, however, that, to the extent not exercised prior to such Company Option is unvested at the Effective Time, each such Company Option shall be cancelled and converted into without the right payment of any consideration. For purposes of calculating the amount to receive the applicable payments set forth in this Section 1.5(b).
(ii) At be paid to each Company Optionholder at the Effective Time, each Company Option that is then outstanding and unexercised and which has a per share exercise price that is less than the Per Share Cash Consideration amounts described in this Section 1.9(a)(ii) shall be cancelled and converted into calculated assuming that the right to receive (A) an amount in cash Total Merger Consideration is equal to the excessInitial Merger Consideration, if any, of and shall be adjusted following the Per Share Cash Consideration over the exercise price per share of such Closing as set forth herein. The aggregate amount to be paid to a Company Option, multiplied by the number of shares of Optionholder for Company Common Stock underlying such Company Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option Options held immediately prior to the Effective TimeTime shall be rounded down to the nearest whole cent and computed after aggregating cash amounts for all Company Options held by each particular holder of Company Options. The Surviving Corporation shall pay the aggregate amount of cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR all such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year periodunder this Section 1.9(a)(ii) is referred to as the “Option Consideration”.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal or greater than the Per Share Cash Consideration shall be cancelled with no consideration payable in respect thereof.
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Company Options. (i) Neither the Surviving Corporation nor Parent shall assume any Company Options or substitute for any Company Option any option for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of At the Effective Time and without any action on the part of any holder of except as set forth in Section 6.11(c)(ii), each Company OptionsOption (or portion thereof) that is outstanding, (A) all Unvested Company Options (whether time-based vested or performance-based) which are outstanding unvested, as of immediately prior to the Effective Time shall fully vest be assumed by Parent (each, an “Assumed Option”). Each such Assumed Option shall be subject to substantially the same terms and become exercisable, and become Vested Company Options, and (B) conditions as applied to the extent not exercised related Company Option immediately prior to the Effective Time, including the vesting schedule applicable thereto, except that (A) the number of shares of Parent Common Stock subject to each Company Assumed Option shall be cancelled equal to the product of (x) the number of shares of Company Common Stock underlying such unvested Assumed Option as of immediately prior to the Effective Time multiplied by (y) the Equity Award Exchange Ratio (with the resulting number Table of Contents rounded down to the nearest whole share), and converted into (B) the right per share exercise price of each Assumed Option shall be equal to receive the applicable payments set forth quotient determined by dividing (x) the exercise price per share at which such Assumed Option was exercisable immediately prior to the Effective Time by (y) the Equity Award Exchange Ratio (with the resulting price per share rounded up to the nearest whole cent). Each Assumed Option that qualified as an incentive stock option prior to the Effective Time shall continue to qualify as an incentive stock option as defined in Section 422 of the Code following the Effective Time to the extent permitted under Section 422 of the Code The assumption of Assumed Options pursuant to this Section 1.5(b)shall be effected in a manner that satisfies the requirements of Sections 409A and 424(a) of the Code and the Treasury Regulations promulgated thereunder, and this Section 6.11(c) will be construed consistent with this intent.
(ii) At the Effective Time, each Company Option (or portion thereof) that is then outstanding and unexercised vested as of immediately prior to the Effective Time (or vests as a result of the consummation of the transactions contemplated hereby) and held by a holder who is not an employee of the Company or its Subsidiaries as of immediately prior to the Effective Time (each, a “Cancelled Option”) shall, by virtue of the Merger and at the direction of Parent (which has a per share exercise price that is less than the Per Share Cash Consideration shall hereby given pursuant to this Agreement), be cancelled and terminated and converted into the right to receive the Merger Consideration in respect of each Net Option Share covered by such Cancelled Option; provided that, in lieu of the Merger Consideration, any fractional Net Option Share (Aafter aggregating all shares represented by all Cancelled Options held by such individual) an amount shall be settled in cash equal based on the Cash Equivalent Consideration (such consideration for each Net Option Share being hereinafter referred to as the excess“Option Consideration”). The holder of each Cancelled Option shall receive at the Effective Time from the Company, if anyor as soon as practicable thereafter (but in no even later than the Company’s first full payroll after the Effective Time) from the Surviving Company, of the Per Share Cash Consideration over Option Consideration. If the exercise price per share of any such Company Option, multiplied by the number of shares of Company Common Stock underlying such Company Cancelled Option plus (B) one CVR with respect to each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time. The Surviving Corporation shall pay the cash amounts payable pursuant to Section 1.5(b)(ii)(A) (the “Company Option Cash Consideration”), without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, on the Surviving Corporation’s next ordinary course payroll date that is at least five Business Days following the Effective Time, and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.6, if, and only if, a Contingent Payment is made and will be made at the same time such Contingent Payment is made to other holders of CVRs; provided that, to the extent required to avoid a violation of Section 409A of the Code, and notwithstanding anything to the contrary contained herein, payment in respect of the CVR shall only be made to the extent such payment is made not later than five years after the Closing Date, and no amount in respect of the CVR shall be paid to any holder of Company Options after such five-year period.
(iii) At the Effective Time, each Company Option that is then outstanding and unexercised and that has an exercise price per share that is equal to or greater than the Per Share Cash Consideration shall Merger Consideration, such Company Option shall, by direction of Parent (which is hereby given pursuant to this Agreement), be cancelled with no consideration payable without any payment being made in respect thereof. The payment of Option Consideration to the holder of a Cancelled Option shall be reduced by any applicable tax withholding required under the Code, any Applicable Law, or as otherwise agreed by the parties at the time the Company Option was granted. The applicable taxes required to be withheld from the Option Consideration shall reduce first the Cash Consideration portion of the Option Consideration with any remaining amount reducing the Stock Consideration portion of the Option Consideration, with the value of the stock portion for purposes of such deduction determined based on the Parent Average Closing Price.
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