Company Options. (a) Each Company Option Plan and each issuance of Company Options has been administered in all material respects in accordance with its terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law. (b) Except as set forth in Schedule 4.9.14 of the Company Disclosure Schedule, no Company Option Plan or issuance of Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was granted. (c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Samples: Merger Agreement (Integra Lifesciences Holdings Corp)
Company Options. (a) Each Company Option Plan and At the Effective Time, each issuance of Company the then outstanding Options has been administered in all material respects (as defined below) shall be (i) assumed by Buyer, in accordance with the terms of the applicable Stock Plan (as defined below) and option agreement by which it is evidenced, except that from and after the Effective Time, Buyer and its terms Board of Directors or Compensation Committee, as the case may be, shall be substituted for the Company and all Applicable Lawsits subsidiaries and their respective Boards of Directors (including if applicable the entire Board of Directors) administering any such Stock Plan, including federal and state securities laws and (ii) converted into an option to purchase that number of shares of Buyer Common Stock determined by multiplying the number of shares of Company Common Stock subject to such Option at the Effective Time by the Exchange Ratio, at an exercise price per share of Buyer Common Stock equal to the exercise price per share of such Option immediately prior to the Effective Time divided by the Exchange Ratio; except that, in the case of an Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code, the conversion formula shall be adjusted, if the Company determines that such adjustment is necessary, to comply with Section 424(a) of the Code. With respect If the foregoing calculation results in an assumed Option being exercisable for a fraction of a share of Buyer Common Stock, then the number of shares of Buyer Common Stock subject to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect such option shall be rounded down to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set nearest whole number of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) shares. Except as otherwise set forth in Schedule 4.9.14 this Section 1.4 and except to the extent required under certain agreements in effect as of the Company Disclosure Schedule, no Company Option Plan or issuance of Company Options date hereof between the Company and any certain of its employees, the term, status as an "service providerincentive stock option" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A 422 of the Code (without regard if applicable), all applicable restrictions or limitations on transfer and vesting and all other terms and conditions of Options will (except as otherwise provided in the applicable Stock Plan or Option) to any loss the extent permitted by law and otherwise reasonably practicable, be unchanged. As soon as practicable following the date of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than , the fair market value (within the meaning Board of Section 409A Directors of the Code and Company (or, if appropriate, any committee thereof administering the Treasury regulations and Stock Plans) shall adopt such resolutions or take such other IRS guidance issued thereunder) actions as may be required to effect the provisions of the underlying Common Stock on the date the Company Option was grantedthis Section 1.4(a).
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Precision Response Corp)
Company Options. (a) Each Company Option Plan and each issuance of Company Options has been administered in all material respects in accordance with its terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(bi) Except as set forth in on Schedule 4.9.14 2.4(a)(i), immediately prior to the Effective Time, and conditioned upon consummation of the Initial Merger, the Company Disclosure Schedule, no in its sole discretion has elected to cause each outstanding Company Option Plan to be, and each outstanding Company Option shall be, deemed (effective as of immediately prior to the Effective Time) to have been fully accelerated (or issuance in the case of Company Options between set forth on Schedule 2.4(a)(i), partially accelerated) and cancelled, and each holder of a Company Option issued under the Option Plan shall be converted automatically into the right to receive, subject to compliance with Section 2.16(c), (A) the Per Option Consideration for such Company Option, less the Per Share Escrow Fund Amount and the Per Share Expense Fund Amount in respect of such Company Option and (B) any "service provider" amount to be disbursed from the Escrow Fund with respect to such Company Option to the Optionholder thereof in accordance with the terms of this Agreement and the Escrow Agreement, as and when such payment is required to be made and (within C) subject to the meaning terms set forth in Section 2.17, the pro rata Milestone Payment for such Company Option, in each case, without interest thereon; provided, however, that if the Option Exercise Price of any such Company Option is equal to or greater than the Price Per Common Equivalent Unit, then such Company Option shall be cancelled without any cash or other consideration being paid or provided in respect thereof. The Company shall take all actions necessary to effect the treatment of Company Options as set forth in this Section 409A of the Code2.4(a), including the grantfull or partial acceleration thereof as set forth in this Section 2.4(a)(i).
(ii) As of the Effective Time, vesting or exercise the Company in its sole discretion shall cause the Option Plan to, and the Option Plan shall, terminate and all rights under any provisions of any stock option other plan, program or stock appreciation right, will or may provide arrangement providing for the deferral grant of compensation subject any other interest in respect of the capital stock of the Company shall be cancelled. At and after the Effective Time, no Person shall have any right under the Company Options, the Option Plan or any other plan, program or arrangement providing for the grant of any other interest in respect of the capital stock of the Company except the right to receive the Merger Consideration payable pursuant to Section 409A 2.4(a). No additional Company Options or other rights to acquire capital stock of the Code, whether Company will be granted pursuant to the execution and delivery Option Plan or otherwise after the date of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Company Options. (a) Each The Company Option Plan and each issuance has reserved an aggregate of 7,600,000 shares of Company Common Stock for issuance pursuant to the Company Stock Plan (including shares subject to outstanding Company Options). A total of 6,409,967 shares of Company Common Stock are subject to outstanding Company Options, of which 4,097,544 were exercisable, as of the Agreement Date, except for Company Options has been administered outstanding as of the Agreement Date that are exercised, forfeited or otherwise expired, in all material respects each case, in accordance with its their terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect prior to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(bClosing Date. Schedule 3.4(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure ScheduleLetter sets forth, no as of the Agreement Date, for each Company Option: (i) the name of the holder of such Company Option, (ii) the exercise price per share of such Company Option, (iii) the number of shares covered by such Company Option, (iv) the date of grant and vesting schedule for such Company Option, (v) the extent such Company Option is vested as of the Agreement Date, (vi) whether such Company Option is an incentive stock option or non-statutory stock option under the Code, and (vii) other than with respect to the acceleration expressly contemplated by Section 2.2(a), whether the exercisability of such Company Option shall be accelerated in any manner by any of the transactions contemplated by this Agreement or upon any other event or condition and the extent of acceleration, if any. True, complete and correct copies of the Company Stock Plan, the standard agreements under the Company Stock Plan and each agreement for stock options or stock under the Company Stock Plan that does not conform to the standard agreement under the Company Stock Plan have been made available to Parent, and such Company Stock Plan and such agreements have not been amended, modified or supplemented since being made available to Parent, and there are no agreements, understandings or commitments to amend, modify or supplement the Company Stock Plan or issuance such agreements in any case from those made available to Parent. The terms of the Company Stock Plan permit the treatment of Company Options between as provided herein, without the consent or approval of any Company Optionholders, the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) Stockholders or otherwise. Each All Company Option Plan that is a nonqualified deferred compensation plan Options are not subject to Section 409A any right of rescission, right of first refusal or preemptive right and have been issued under the Company Stock Plan in compliance with Law and all requirements set forth in applicable Contracts. All Company Options and shares of Company Common Stock issued upon exercise thereof have been issued and granted in accordance with the terms of the Code has been operated and administered Company Stock Plan in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated Law and all requirements set forth in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was grantedapplicable Contracts.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Company Options. (ai) Each The Company Option Plan and each issuance has reserved 2,975,265 shares of Company Common Stock for issuance under the Company Stock Plans. As of the Capitalization Date, there were outstanding Company Options to purchase 2,274,957 shares of Company Common Stock. Since such date, the Company has been administered in all material respects in accordance not granted, committed to grant or otherwise created or assumed any obligation with its terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of any Company Options, all taxother than as permitted by Section 4.1(b).
(ii) Section 2.2(c)(ii) of the Company Disclosure Letter contains a complete and correct list of each outstanding Company Option as of the Capitalization Date, annual reporting and other governmental filings required by federal and state securities laws including the holder, date of grant, exercise price, vesting schedule, date of expiration, which Company Stock Plan it was granted under, whether the option is an “incentive stock option” under Section 422 of the Code or a non-qualified stock-option, and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. number of shares subject thereto.
(iii) With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, (1) each Company Option intended to qualify as an “incentive stock option” under Section 422 of the Code so qualifies, (2) each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective (the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the Company Board (or a duly constituted and authorized committee thereof), or a duly authorized delegate thereof, and any required stockholder approval by the necessary number of votes or written consents, (3) each such grant was made in accordance with the terms of the applicable Company Stock Plan, the Company OptionsExchange Act of 1934, federal as amended, and state securities lawsthe rules and regulations promulgated thereunder, the Code or any successor statute, rules or regulations thereto (the “Exchange Act”) and all other Applicable applicable Law.
(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure Schedule, no Company Option Plan or issuance of Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for Nasdaq Marketplace Rules and (4) the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The per share exercise price of each Company Option not grandfathered under Section 409A was not, in the good faith judgment of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not Company Board, less than the fair market value (within the meaning of Section 409A a share of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Company Common Stock on the date applicable Grant Date. Since January 1, 2006, the Company Option was has not granted, and there is no and has been no Company policy or practice to grant, Company Options prior to, or otherwise coordinate the grant of Company Options with, the release or other public announcement of material information regarding the Company or any of its Subsidiaries or their financial results or prospects.
(civ) The Company has withheld and paid all amounts required by law Stock Plans set forth on Section 2.2(c)(iv) of the Company Disclosure Letter are the only plans or by agreement to be withheld from programs the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages Company or any taxes of its Subsidiaries has maintained under which stock options, restricted shares, restricted share units, stock appreciation rights, performance shares or any penalty for failure to withhold other compensatory equity-based awards have been granted and remain outstanding or pay such amountsmay be granted. The All Company has properly classified all individuals providing services to Options may, by their terms, be treated in accordance with Section 1.6(h). No Company Options shall become vested or exercisable solely as a result of the Company transactions contemplated hereby, except as employees or non-employees for all relevant purposescontemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Pharsight Corp)
Company Options. (a1) Each Company Option Plan outstanding as of immediately prior to the Effective Time (A) that is vested as of immediately prior to the Effective Time or (B) held by any non-employee director of the Company shall be cancelled and each issuance automatically converted into the right to receive an amount in cash equal to the product of (x) the aggregate number of shares of Company Options has been administered in all material respects in accordance with its terms and all Applicable LawsCommon Stock subject to such Company Option, including federal and state securities laws and multiplied by (y) the Code. With respect to each excess, if any, of the Offer Price over the applicable per share exercise price of such Company Option Plan and each issuance of Company OptionsOption, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under required withholding of Taxes, which shall be payable promptly following the terms ofEffective Time and in no case later than the second regularly scheduled payroll following the Effective Time (the “Closing Payment Schedule”); provided, or with respect to, each that any Company Option Plan, with a per share exercise price equal to or greater than the Company Options, federal and state securities laws, the Code or any other Applicable LawOffer Price shall be automatically cancelled for no consideration.
(b2) Except Each Company Option outstanding and unvested as set forth of immediately prior to the Effective Time held by any Person other than an Executive Employee (“Non-Executive Holder”) that would have had its first vesting date on March 1, 2023 or June 1, 2023 pursuant to its terms on the date hereof shall be cancelled and automatically converted into the right to receive an amount in Schedule 4.9.14 cash equal to the product of (A) the aggregate number of shares of Company Common Stock with respect to which such Company Option would have vested prior to November 30, 2023 pursuant to its terms on the date hereof and (B) the excess, if any, of the Offer Price over the applicable per share exercise price of such Company Option, subject to any required withholding of Taxes. Such cash amount shall be payable promptly following March 1, 2023 and in no case later than the second regularly scheduled payroll of the Company Disclosure Schedulefollowing March 1, 2023, subject to the applicable Non-Executive Holder’s continuous employment or service through March 1, 2023; provided that in the event a Non-Executive Holder incurs a termination of employment or service without Cause (as defined in the applicable employee’s employment agreement or if no Company Option Plan such agreement exists, the Severance Plan) prior to March 1, 2023, such individual shall be entitled to the cash payment that would have been payable to the individual had such individual remain continuously employed or issuance engaged through March 1, 2023, with such cash payment payable promptly following March 1, 2023 and in no case later than the second regularly scheduled payroll of Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code)following March 1, including the grant2023, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement or the consummation an effective release of the Transactions contemplated hereby claims in favor of Parent.
(either alone or upon the occurrence of any additional or subsequent events3) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price portion of each Company Option not grandfathered under Section 409A outstanding and unvested as of immediately prior to the Code (without regard Effective Time held by any Non-Executive Holder that would have vested after November 30, 2023 pursuant to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock its terms on the date hereof shall be cancelled and automatically converted into the right to receive an amount in cash equal to the product of (A) the aggregate number of shares of Company Common Stock with respect to which such Company Option would have vested after November 30, 2023 pursuant to its terms on the date hereof and (B) the excess, if any, of the Offer Price over the applicable per share exercise price of such Company Option, subject to any required withholding of Taxes, payable on the Closing Payment Schedule. Such cash amount shall be payable promptly following December 1, 2023 and in no case later than the second regularly scheduled payroll of the Company Option was grantedfollowing December 1, 2023, subject to the applicable Non-Executive Holder’s continuous employment or service through December 1, 2023; provided that in the event a Non-Executive Holder incurs a termination of employment or service without Cause prior to December 1, 2023, such individual shall be entitled to the cash payment that would have been payable to the individual had such individual remain continuously employed or engaged through December 1, 2023, with such cash payment payable promptly following December 1, 2023 and in no case later than the second regularly scheduled payroll of the Company following December 1, 2023, subject to the execution of an effective release of claims in favor of Parent.
(c4) The Each Company has withheld Option outstanding and paid unvested as of immediately prior to the Effective Time held by any Executive Employee of the Company shall be cancelled and automatically converted into: (A) the right to receive an amount in cash equal to the product of (I) the aggregate number of shares of Company Common Stock with respect to which such Company Option would have vested prior to November 2023 pursuant to its terms on the date hereof and (II) the excess, if any, of the Offer Price over the applicable per share exercise price of such Company Option, subject to any required withholding of Taxes, which shall be payable promptly following March 1, 2023 and in no case later than the second regularly scheduled payroll following March 1, 2023, subject to the applicable Executive Employee’s continuous employment through March 1, 2023; provided that in the event an Executive Employee incurs a termination of employment without Cause prior to March 1, 2023, such individual shall be entitled to the cash payment that would have been payable to the individual had such individual remain continuously employed through March 1, 2023, with such cash payment payable promptly following March 1, 2023 and in no case later than the second regularly scheduled payroll of the Company following March 1, 2023, subject to the execution of an effective release of claims in favor of Parent; (B) a restricted stock unit award (each, an “Assumed RSU Award”) with respect to a number of Parent Holdco ADSs (rounded down to the nearest whole share) equal to (I) the product of (x) the aggregate number of shares of Company Common Stock with respect to which such Company Option would have vested pursuant to its terms on the date hereof after October 2023 and prior to November 2025 pursuant to its terms in effect on the date hereof and (y) the excess if any, of the Offer Price over the applicable per share exercise price of such Company Option, divided by (II) the Parent Holdco ADS Price, vesting in two equal annual installments on November 1, 2023 and November 1, 2024, subject to the applicable Executive Employee’s continuous employment through the applicable vesting date; provided that in the event an Executive Employee incurs a termination of employment without Cause prior to the applicable vesting date, such Assumed RSU Awards shall immediately vest, subject to the execution of an effective release of claims in favor of Parent; and (C) an Assumed RSU Award with respect to a number of Parent Holdco ADSs (rounded down to the nearest whole share) equal to (I) the product of (x) the aggregate number of shares of Company Common Stock with respect to which such Company Option would have vested after October 2025 pursuant to its terms in effect on the date hereof and (y) the excess, if any, of the Offer Price over the applicable per share exercise price of such Company Option, divided by (II) the Parent Holdco ADS Price, vesting on November 1, 2025, subject to the applicable Executive Employee’s continuous employment through the applicable vesting date; provided that in the event an Executive Employee incurs a termination of employment without Cause prior to the applicable vesting date, such Assumed RSU Awards shall immediately vest, subject to the execution of an effective release of claims in favor of Parent. Parent shall use reasonable best efforts to cause Parent Holdco to, at or prior to the Effective Time, register on an appropriate registration statement the Parent Holdco ADSs evidencing Parent Holdco Ordinary Shares in respect of the Assumed RSU Awards. Parent shall use reasonable best efforts to cause Parent Holdco to take all amounts required by law or by agreement corporate actions necessary to authorize the issuance of the Parent Holdco ADSs, and cause the Parent Holdco ADSs, when issued and delivered, to be withheld from the wagesduly authorized, salariesvalidly issued, fully paid, and other payments to its employeesnonassessable, independent contractors free and other service providersclear of any liens or encumbrances, and is issued in compliance with applicable Law. If such Parent Holdco ADSs are not liable able to be issued, or for any arrears of wages or other reason Parent Holdco does not issue such Parent Holdco ADSs under any taxes or any penalty for failure to withhold or Assumed RSU Award in accordance with this Section 3.9(a)(i)(4), then Parent shall pay such amounts. The Company has properly classified all individuals providing services to the Company as employees holder of each such Assumed RSU Award that vests (it being understood that the same vesting conditions applicable to the applicable Assumed RSU Award shall apply for this purpose) a cash payment, on or non-employees for all relevant purposespromptly after the date that such Assumed RSU Award otherwise would have vested, with a value (per Parent Holdco ADS subject to the Assumed RSU Award) equal to the closing price of a Parent Holdco ADS on Nasdaq on the date of vesting.
Appears in 1 contract
Company Options. Effective fifteen (a15) Each Business Days prior to, and conditional upon the occurrence of, the Effective Time, each holder of an outstanding Company Option Plan and each issuance that qualifies as an incentive stock option, taking into account any acceleration of Company Options has been administered in all material respects in accordance with its terms and all Applicable Lawsexercisability pursuant to this Section 3.7, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure Schedule, no Company Option Plan or issuance of Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A 422(b) of the Code, whether pursuant vested or unvested, shall be entitled to exercise any portion of such Company Option that is so qualified in full by providing the Company with a notice of exercise and full payment of the applicable exercise price in accordance with and subject to the execution terms of the applicable Company Stock Plan and delivery the stock option award agreement governing the Company Option. Effective as of this Agreement immediately prior to the Effective Time, automatically and without any action on the part of the holder thereof or the consummation of Company, (i) the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price vesting of each Company Option not grandfathered under Section 409A that remains outstanding as of immediately prior to the Effective Time shall be accelerated in full and (ii) each such Company Option shall be canceled as of the Code Effective Time and converted into the right to receive, subject to Section 3.8(e), an amount in cash (without regard interest), equal to the product obtained by multiplying (x) the aggregate number of Company Shares underlying such Company Option immediately prior to the Effective Time (after taking into account any exercise pursuant to the preceding sentence), by (y) the amount, if any, by which the Offer Price exceeds the per share exercise price of such Company Option (the “Option Consideration”). For the avoidance of doubt, no Option Consideration shall be payable with respect to any loss of grandfathering resulting from Company Option so canceled with a per share exercise price that equals or exceeds the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A amount of the Code and Offer Price. Parent shall, or shall cause the Treasury regulations and other IRS guidance issued thereunder) Surviving Corporation or a Subsidiary of the underlying Common Stock on Surviving Corporation to, pay through Parent’s, the date Surviving Corporation’s or the Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services applicable Subsidiary’s payroll to the former holders of Company Options who are current or former employees of the Company, the applicable Option Consideration, less any required withholding Taxes payable in respect thereof pursuant to Section 3.8(e), as promptly as practicable following the Effective Time (and in no event later than ten (10) Business Days thereafter). All payments of Option Consideration to former holders of Company Options who are not current or former employees shall be made through Parent’s, the Surviving Corporation’s or non-employees for all relevant purposesthe applicable Subsidiary of Surviving Corporation’s accounts payable, less any required withholding Taxes payable in respect thereof pursuant to Section 3.8(e), as promptly as practicable following the Effective Time (and in no event later than ten (10) Business Days thereafter).
Appears in 1 contract
Company Options. (a) Each Company Option Plan and each issuance of Company Options has been administered in all material respects in accordance with its terms and all Applicable Laws, including federal and state securities laws and At the Code. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect toEffective Time, each Company Option which is then outstanding, whether or not exercisable, shall cease to represent a right to acquire shares of Company Common Stock and shall be converted automatically into an option to purchase shares of Parent Common Stock, and Parent shall assume each Company Option, in accordance with the terms of the applicable Company Stock Option Plan and stock option or other agreement by which it is evidenced, except that from and after the Effective Time, (i) Parent and the Human Resources and Compensation Committee of its Board of Directors shall be substituted for the Company and the committee of the Company Board (including, if applicable, the entire Company Board) administering such Company Stock Option Plan, (ii) each Company Option assumed by Parent may be exercised solely for shares of Parent Common Stock, (iii) the number of shares of Parent Common Stock subject to such Company Option shall be equal to the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time multiplied by the Exchange Ratio, provided that any fractional shares of Parent Common Stock resulting from such multiplication shall be rounded to the nearest share, and (iv) the per share exercise price under each such Company Option shall be adjusted by dividing the per share exercise price under each such Company Option by the Exchange Ratio, provided that such exercise price shall be rounded to the nearest cent. Notwithstanding clauses (iii) and (iv) of the preceding sentence, each Company Option which is an “incentive stock option” shall be adjusted as required by Section 424 of the Code, and the regulations promulgated thereunder, so as not to constitute a modification, extension or renewal of the option within the meaning of Section 424(h) of the Code. Accordingly, with respect to any Company Option which is an incentive stock option, fractional shares shall be rounded down to the nearest whole number of shares and where necessary the per share exercise price shall be rounded up to the nearest cent. Parent and the Company Options, federal and state securities laws, agree to take all necessary steps to effect the Code or any other Applicable Lawforegoing provisions of this Section 3.05.
(b) Except Within five Business Days after the Effective Date, Parent shall file a registration statement on Form S-3 or Form S-8, as set forth the case may be (or any successor or other appropriate forms), with respect to the shares of Parent Common Stock subject to the options referred to in Schedule 4.9.14 paragraph (a) of this Section 3.06 and shall use its reasonable best efforts to maintain the current status of the Company Disclosure Scheduleprospectus or prospectuses contained therein for so long as such options remain outstanding in the case of a Form S-8 or, no Company Option Plan or issuance in the case of Company Options between a Form S-3, until the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation shares subject to Section 409A of such options may be sold without a further holding period under Rule 144 under the Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was grantedSecurities Act.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Company Options. The Company Stock Plan is the only equity-based plan or program providing for equity compensation of any Person in respect of the Company Capital Stock, and except for the Company Stock Plan, the Company has never adopted or maintained any stock option plan or other plan, agreement or arrangement providing for equity compensation of any Person. The Company has reserved an aggregate of 3,513,485 shares of Company Common Stock for issuance pursuant to the Company Stock Plan (a) Each including shares subject to outstanding Company Option Options). As of the Agreement Date, a total of 1,673,678 shares of Company Common Stock are subject to outstanding Company Options, all of which were vested and exercisable as of the Agreement Date. The Company has not issued any awards under the Company Stock Plan other than Company Options. Complete and correct copies of the Company Stock Plan, the standard agreements under the Company Stock Plan and each issuance agreement for awards under the Company Stock Plan that does not conform to the standard agreements under the Company Stock Plan, in each case as are in effect as of the Agreement Date, have been made available to Parent, and there are no agreements, understandings or commitments to amend, modify or supplement the Company Stock Plan or any such agreements. The terms of the Company Stock Plan permit the treatment of Company Options has been administered in all material respects in accordance with its terms and all Applicable Lawsas provided herein, including federal and state securities laws and without the Code. With respect to each Company Option Plan and each issuance consent or approval of any holders of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code Stockholders or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 Person other than the board of directors of the Company Disclosure ScheduleCompany, no Company Option Plan or issuance of Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant which board approval was obtained prior to the execution and delivery hereof by the Company. No Company Options are subject to any right of this Agreement rescission, right of first refusal or preemptive right and all Company Options have been issued under the consummation Company Stock Plan in compliance with Law and all requirements set forth in applicable Contracts. All Company Options and shares of Company Common Stock issued upon exercise thereof have been granted and issued, and all exercises of Company Options have been made, in accordance with the terms of the Transactions contemplated hereby Company Stock Plan and in compliance with applicable Law and all requirements set forth in applicable Contracts and each such grant, exercise and issuance was properly accounted for in accordance with GAAP in the financial statements (either alone or upon including the occurrence related notes) of any additional or subsequent events) or otherwisethe Company. Each No Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance granted with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The an exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A a share of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Company Common Stock on the date on which the grant of such Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement its terms to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amountseffective. The All Company has properly classified all individuals providing services to Options that were ever issued by the Company as employees ceased to vest on the date on which the holder thereof ceased to be an employee, consultant or non-employees for all relevant purposesdirector of the Company.
Appears in 1 contract
Company Options. Not less than five (a5) Each Business Days prior to the Closing, the board of directors of the Company shall have adopted resolutions, and the Company hereby agrees to take all other necessary actions, to cause each Company Option that is outstanding immediately prior to Closing (whether vested or unvested and whether or not exercisable) to be canceled and extinguished and automatically converted into the right to receive, without interest and as the sole consideration in respect of such Company Option, an aggregate amount in cash equal to the product of (1) the excess, if any, of the fair market value of a Company ordinary share (determined by the Company’s board of directors in accordance with the Company Option Plan and each issuance of Company Options has been administered in all material respects in accordance with its terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed consistent with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure Schedule, no Company Option Plan or issuance of Company Options between the Company and any "service provider" (within the meaning requirements of Section 409A of the Code) over the exercise price set forth in the award agreement for such Company Option multiplied by (2) the number of Company shares subject to such Company Option (“Cash Out Payment”), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to any applicable income and payroll Taxes required to be withheld (“Required Withholding”). Not less than five (5) Business Days prior to the Closing, the Company shall provide the notice required under Section 409A 6.7 of the Code, whether pursuant Company Option Plan to each holder of an outstanding Company Option concerning the execution and delivery of this Agreement or the consummation effect of the Transactions contemplated hereby (either alone or upon resolution of the occurrence board of any additional or subsequent events) or otherwisedirectors of the Company as described in this Section 2.7. Each Company Option Plan that is a nonqualified deferred compensation plan subject outstanding immediately prior to the Closing Date, when canceled, extinguished and converted in accordance with this Section 409A of 2.7, shall no longer be outstanding, shall automatically be canceled and shall cease to exist. If the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each set forth in the award agreement for any Company Option not grandfathered under Section 409A of the Code (without regard is equal to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less or greater than the fair market value of a Company ordinary share (within determined under the meaning conditions described above), such Company Option shall be canceled without payment therefor and shall have no further force or effect. Subject to receipt of Section 409A a properly completed and duly executed option cancellation letter in substantially the form attached *** Certain information on this page has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. hereto as Exhibit B, from each such holder of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date Company Options, the Company Option was grantedshall cause the applicable Subsidiary employer to make the applicable Cash Out Payments less Required Withholding, to all holders of Company Options entitled to payment therefor prior to Closing.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Samples: Share Purchase Agreement (Emergent BioSolutions Inc.)
Company Options. (ai) Each At the Effective Time, each outstanding and unexercised Company Option Plan and each issuance of Company Options has been administered in all material respects in accordance with its terms and all an exercise price less than the Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect Per Share Total Merger Consideration applicable to the Company Option Plans Common Stock, whether or not vested or exercisable, shall become fully vested and exercisable immediately prior to the Effective Time and to the extent not exercised prior to the Effective Time shall be cancelled and converted automatically into the right to receive, an amount in cash, equal to the Applicable Per Share Total Merger Consideration applicable to the Company Options, no event has occurred and there exists no condition or set Common Stock multiplied by the number of circumstances in connection with which shares of Company Common Stock issuable upon exercise of the entire portion of the Company could Option (vested and unvested), minus the exercise price of the Company Option multiplied by the number of shares of Company Common Stock issuable upon exercise of the entire portion of the Company Option (vested and unvested) (the “Option Closing Payout Amount”). The portion of each Company Option, if any, with an exercise price greater than or equal to the Applicable Per Share Total Merger Consideration applicable to the Company Common Stock shall be subject cancelled automatically at the Effective Time, by virtue of this Agreement and without any further action on the part of Buyer and without any payment from Buyer thereon.
(ii) The Company shall, prior to any material Liability the Effective Time, take or cause to be taken all actions (including adopting all resolutions, providing notices and procuring consents (after review and approval by Buyer of the forms thereof, which shall not be unreasonably withheld, conditioned or delayed)) that are required under the terms of, or with respect to, each Company Option Plan, applicable Law or this Agreement, or are otherwise reasonably necessary to effectuate the Company Optionstransactions contemplated by this Section 1.4(a) and to ensure that, federal from and state securities lawsafter the Effective Time, the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 each holder of the Company Disclosure Schedule, no a Company Option Plan cancelled or issuance substituted as provided in this Section 1.4(a) shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration (if any) specified in and subject to the terms of Company Options between the Company and any "service provider" (within the meaning of this Section 409A of the Code1.4(a), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was grantedinterest.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Samples: Merger Agreement (LogMeIn, Inc.)
Company Options. (a) Each At the Effective Time, each outstanding Company Option Plan to the extent vested and unexercised under the Company Equity Plans, shall, automatically and without any required action on the part of the holder thereof, be cancelled and converted into only the right to receive (without interest), subject to the terms and conditions of this Section 2.9(a), an amount in cash (less applicable Tax withholdings), equal to the product of (A) the excess, if any, of (1) the Offer Price over (2) the exercise price per share of such Company Option, and (B) the number of Shares underlying such Company Option; provided, that if the exercise price per share of such Company Option is equal to or greater than the Offer Price, no cash payment shall be made in respect of such cancellation. The payment, if any, contemplated by this Section 2.9(a) in cancellation and settlement of each issuance outstanding Company Option to the extent vested and unexercised as of the Effective Time (giving effect to any acceleration of vesting in connection with the Merger that is contemplated by such outstanding Company Options has been administered Option) shall be payable in all material respects a lump sum through the Company’s payroll system or by check or other method as reasonably determined by Parent as soon as reasonably practicable after the Effective Time (but no later than the earlier of the second payroll period after the Effective Time or December 31st of the year during which the Effective Time occurs). At the Effective Time, each outstanding Company Option to the extent unvested or unexercisable under the Company Equity Plans (after giving effect to any acceleration of vesting in connection with the Merger that is contemplated by such outstanding Company Option), shall, automatically and without any required action on the part of the holder thereof, be converted into a substitute right or award to receive (without interest), subject to the terms and conditions of this Section 2.9(a), an amount in cash (less applicable Tax withholdings), equal to the product of (A) the excess, if any, of (1) the Offer Price over (2) the exercise price per share of such Company Option, and (B) the number of Shares underlying such Company Option; provided, that if the exercise price per share of such Company Option is equal to or greater than the Offer Price, no cash payments shall be due with respect to such Company Option. The payment, if any, contemplated by this Section 2.9(a) with respect to such substitute right or award with respect to each outstanding Company Option to the extent unvested or unexercisable as of the Effective Time (after giving effect to any acceleration of vesting in connection with the Merger that is contemplated by such outstanding Company Option) shall be payable (without any crediting of interest for the period from the Effective Time through the date of payment) in a lump sum through the Company’s payroll system or by check or other method as reasonably determined by Parent no less frequently than on a semi-annual basis on or after the date that such Company Option would have otherwise vested and become exercisable in accordance with its terms (and all Applicable Lawsin any event not later than the earlier of (1) December 31st of the year during which such vesting date occurs or (2) the date of termination for any such employee) but only if such conditions to vesting are satisfied prior to such vesting date; provided, including federal and state securities laws and that if the Code. With respect to each employment or service of such grantee of such Company Option Plan and each issuance is terminated by the Surviving Corporation or its affiliates prior to such vesting date under conditions that would have accelerated the vesting of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the such Company Option Plans and the Company Optionshad it remained outstanding, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could then such vesting shall be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) Except accelerated as set forth in Schedule 4.9.14 of the Company Disclosure Schedule, no Company Option Plan date of such termination of employment or issuance of Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was grantedservice.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Samples: Merger Agreement (Envivio Inc)
Company Options. (a) Each Except as provided in Section 4.1(c), the Buyer shall, at the Closing, cause each Unvested Company Option, except for Unvested Company Options which by their terms are scheduled to vest on January 1, 1997, to be assumed by the Buyer and converted to a Buyer Option Plan (or a new substitute option shall be granted), issued under and each pursuant to the terms and conditions of the Buyer Option Plan. The Parties agree that (i) the number of shares of Buyer Common Stock subject to such Buyer Option will be determined by multiplying the number of the Company Shares subject to the Unvested Company 37 42 Option to be cancelled by the Option Exchange Ratio, rounding any fractional share up to the nearest whole share, and (ii) the exercise price per share of such Buyer Option will be $0.01 per share. Except as provided above, the converted or substituted Buyer Options shall be subject to the same terms and conditions (including, without limitation, expiration date, vesting and exercise provisions) as were applicable to the Unvested Company Options to be cancelled under this Section 4.1(a) immediately prior to the Closing Date. The issuance of Buyer Options as provided herein shall be subject to, and conditioned upon, obtaining an exemption by the Israeli Securities Authority from the registration and prospectus delivery requirements of the Israeli Securities laws. In the event such exemption is not obtained prior to the Closing, unless the Buyer elects to comply with the requirements of the Israeli Securities laws, all Unvested Company Options has been administered to be cancelled under this Section 4.1(a) held by the 30 persons holding the greatest aggregate amount of such Unvested Company Options (other than the persons holding the Unvested Company Options described in all material respects Section 4.1(c)) shall be treated as provided in accordance with its terms this Section 4.1(a) and all Applicable Laws, including federal and state securities laws exchanged for Buyer Options and the Coderemaining Unvested Company Options shall be treated in the same manner as the Vested Company Options pursuant to Section 4.1(d). With respect The Company, the Trustee, the Stockholders (to each Company Option Plan and each issuance the extent they are holders of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws ) and the Code have been timely filed Buyer shall take all necessary action to facilitate and effect the substitution described in this Section 4.1(a). Based upon and subject to the accuracy of the Company's representation and warranty set forth in Section 3.2(o)(v), the Buyer will apply to qualify such Buyer Options issued to employees of the Company who are residents of Israel (including Buyer Options issued under Section 4.1(c)) under Section 102 or another similar provision of the Israeli Income Tax Ordinance and to obtain confirmation from the Israeli tax authorities that tacking of the holding period shall be allowed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the two-year holding period required under Section 102 for such periods in which Unvested Company Options were held before the Closing Date; provided, that the Buyer shall not be required to agree to any change in any of the economic terms of such options as established by this Section 4.1(a) (including, without limitation, identity of employer, number of shares, exercise price and vesting provisions) in order to obtain such qualification. In the event such qualification is not obtained, the Buyer agrees to loan to each holder of an Unvested Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company that is converted into a Buyer Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure Schedule, no Company Option Plan or issuance of Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution paragraphs (a) and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was granted.
(c) The Company has withheld of this Section 4.1 an amount of cash equal to the amount of taxes such holder is required to pay directly as a result of such conversion contemplated in Section 4.1(a). Such loans shall (i) be made in NIS, (ii) be linked to the Israeli consumer price index and paid all amounts required by law (iii) be payable upon the earlier of the sale of shares of Buyer Common Stock issued upon exercise of the Buyer Options or by agreement to be withheld the transfer of such shares from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services Trustee to the Company as employees or non-employees for all relevant purposes.Option Holder, provided that in any event such repayment will be due no later than two years after the date on which the Buyer
Appears in 1 contract
Samples: Stock Purchase Agreement (Applied Materials Inc /De)
Company Options. (aSection 2.2(c) Each of the Company Option Plan and each issuance Schedule sets forth a list of Company Options has been administered in all material respects in accordance with its terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of outstanding Company Options, all taxincluding the names and positions of the respective holders thereof, annual reporting the number and other governmental filings required by federal and state type of securities laws issuable upon exercise, the exercise price for such underlying securities, the plan or arrangement pursuant to which the Company Options were granted, and the Code vesting status of such Option Grants (including the number of shares vested and unvested to date and a description of all circumstances in which the vesting schedule can or will be accelerated). The Company shall deliver an updated copy of such list at the Closing current as of the Closing Date. All Company Options have been timely filed with issued to employees and consultants pursuant to the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipientsCompany’s 2000, 2001 or 2002 Stock Option Plans (collectively, the “Company Plans”). With respect All Company Options issued pursuant to the Company Option Plans (and all shares of Company capital stock issued upon exercise thereof) were issued in compliance with the terms and requirements of the applicable Company Plans and the Company Optionsrequirements of applicable federal, no event has occurred state and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state foreign securities laws, except with respect to Company Options issued pursuant to the Code Company’s 2002 Stock Option Plan which were issued without compliance with state securities or any other Applicable Law.
(b) “blue sky” requirements for such issuance. Except as set forth in Schedule 4.9.14 Section 2.2(c) or elsewhere in the Company Schedule, there are no other outstanding Company Options or oral or written agreements, arrangements or understandings to which the Company is a party requiring the Company to issue any Company Options or any securities or rights exercisable or exchangeable for, or convertible into, shares of Company capital stock or other voting securities. The terms of each of the Company Disclosure SchedulePlans permit the cancellation and extinguishment of all outstanding Company Options as contemplated by this Agreement, no Company Option Plan without the consent or issuance approval of such holders of Company Options between Options, the shareholders of the Company or otherwise, and such action will not result in any "service provider" (within the meaning of Section 409A acceleration of the Code)exercise schedule or vesting provisions, including the grant, vesting or exercise of otherwise result in any stock option changes in or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery terms, of this Agreement such Options or the consummation of the Transactions contemplated hereby (either alone agreements or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amountsarrangements related thereto. The Company has properly classified provided Parent true and correct copies of all individuals providing services Company Plans and all agreements and arrangements related to or issued under such Company Plans, in each case as amended to date and in effect. There are no currently pending or contemplated amendments, modifications or supplemented to any of the Company as employees Employee Plans or non-employees for all relevant purposesany such agreements or arrangements.
Appears in 1 contract
Samples: Merger Agreement (Valueclick Inc/Ca)
Company Options. The Company has reserved an aggregate of 2,096,243 shares of Company Common Stock for issuance pursuant to the Company Equity Plan (aincluding shares subject to outstanding Company Options). As of the Agreement Date, a total of 1,365,429 shares of Company Common Stock are subject to outstanding Company Options, 910,345 of which were vested and exercisable as of the Agreement Date. None of the outstanding Company Options may be exercised prior to vesting. Schedule 3.4(c) Each sets forth, as of the Agreement Date, for each Company Option: (i) the name of the holder thereof, (ii) the exercise price per share of Company Stock, (iii) the number of shares of Company Common Stock subject to such Company Option, (iv) the date of grant, and (v) the extent such Company Option is vested as of the Agreement Date. No Company Options will be accelerated (either fully or partially) in connection with, or prior to, Closing, except to the extent set forth on Schedule 3.4(c). True, complete and correct copies of the Company Equity Plan and each issuance the standard agreements under the Company Equity Plan have been made available to Parent. No agreement for Company Options or shares of Company Common Stock under the Company Equity Plan fails to conform to such standard agreement(s) under the Company Equity Plan. Neither the Company Equity Plan nor any such agreements have been amended, modified or supplemented since being made available to Parent, and there are no agreements, understandings or commitments to amend, modify or supplement the Company Equity Plan or such agreements in any case from those made available to Parent. The terms of the Company Equity Plan permit the treatment of Company Options has been administered in all material respects in accordance with its terms and all Applicable Lawsas provided herein, including federal and state securities laws and without the Code. With respect to each consent or approval of any Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option PlanOptionholders, the Company Options, federal and state securities laws, the Code Securityholders or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 Person other than the board of directors of the Company Disclosure ScheduleCompany, no Company Option Plan or issuance of Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant which board approval was obtained prior to the execution and delivery of this Agreement by the Company. No Company Options are subject to any right of rescission, right of first refusal or presumptive right. All Company Options have been issued and granted in accordance with the consummation terms of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwiseCompany Equity Plan and in compliance with applicable Law and all requirements set forth in applicable Contracts. Each No Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance granted with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The an exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A a share of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Company Common Stock on the date on which the grant of such Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement its terms to be withheld from effective. No Company Options are “out of the wagesmoney” in connection with the transactions contemplated by this Agreement (meaning that in no event will the formulas set forth in Section 2.3(a)(iv)(1) or Section 2.3(a)(iv)(2) (assuming that payment of the maximum Earn-Out Amount is achieved) render an amount of $0 (zero) or less than $0 (zero) with respect to any Company Option). All Company Options that were ever issued by the Company ceased to vest on the date on which the holder thereof ceased to be an employee, salariesconsultant or director of the Company, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services except to the extent set forth on Schedule 3.4(c). Each exercise of Company as employees or non-employees for Options and the payment of cash in respect thereof complied and will comply with the terms of the Company Equity Plan, all relevant purposesContracts applicable to such Company Options and all applicable Laws.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Health Catalyst, Inc.)
Company Options. (a) Each At the First Effective Time, Parent shall assume each Company Option Stock Plan and each issuance Company Option, whether vested or unvested, that is outstanding immediately prior to the First Effective Time shall, at the First Effective Time, cease to represent a right to acquire shares of Company Options has been administered in all material respects in accordance with its Common Stock and shall be converted, at the First Effective Time, into an option to purchase shares of Parent Common Stock (an “Assumed Option”), on the same terms and all Applicable Lawsconditions (including any vesting provisions and any provisions providing for accelerated vesting upon certain events) as were applicable under such Company Option as of immediately prior to the First Effective Time, including federal and state securities laws and except for administrative or ministerial changes as determined by the CodeCompany Board (or, following the First Effective Time, the Parent Board or compensation committee). With respect The number of shares of Parent Common Stock subject to each such Assumed Option shall be equal to (i) the number of shares of Company Common Stock subject to the respective Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect immediately prior to the Company First Effective Time multiplied by (ii) the Exchange Ratio, rounded down, if necessary, to the nearest whole share of Parent Common Stock, and such Assumed Option Plans and shall have an exercise price per share (rounded up to the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which nearest whole cent) equal to (A) the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 exercise price per share of the Company Disclosure Schedule, no Common Stock otherwise purchasable pursuant to the respective Company Option Plan or issuance immediately prior to the First Effective Time divided by (B) the Exchange Ratio; provided, that in the case of any Company Options between the Company and any "service provider" (within the meaning of Option to which Section 409A 421 of the Code), including Code applies as of immediately prior to the grant, vesting or exercise First Effective Time (taking into account the effect of any stock option or stock appreciation rightaccelerated vesting thereof, will or may provide for the deferral if applicable) by reason of compensation subject to its qualification under Section 409A 422 of the Code, whether pursuant the exercise price, the number of shares of Parent Common Stock subject to such option and the execution terms and delivery conditions of this Agreement or exercise of such option shall be determined in a manner consistent with the consummation requirements of Section 424(a) of the Transactions contemplated hereby (either alone or upon Code; provided further, that in the occurrence case of any additional or subsequent events) or otherwise. Each Company Assumed Option Plan that is a nonqualified deferred compensation plan subject to which Section 409A of the Code has been operated and administered in good faith compliance with Section 409A applies as of the Code from First Effective Time, the period beginning January 1exercise price, 2005 through the date hereof. The number of shares of Parent Common Stock subject to such option and the terms and conditions of exercise price of each Company Option not grandfathered under Section 409A of such option shall be determined in a manner consistent with the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning requirements of Section 409A of the Code and in order to avoid the Treasury regulations and other IRS guidance issued imposition of any additional taxes thereunder) of the underlying Common Stock on the date the Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services Board shall, prior to the Company as employees or non-employees for First Effective Time, take all relevant purposesactions necessary to effect the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Pulmatrix, Inc.)
Company Options. (i) Buyer shall not assume or otherwise replace any Options in connection with the Transactions and no Options shall survive the Closing. At the Closing, each Company Option that is vested as of the Closing with an exercise price less than the Ordinary Share Amount shall be cancelled and substituted automatically for the right to receive from Buyer (which may pay such amounts to the 102 Trustee or the Paying Agent, as applicable, for payment to the holder of the Company Option), subject to the receipt by Buyer of a completed and executed Option Acknowledgement Agreement, an amount in cash, without interest, with respect to such Company Option equal to (i) the Ordinary Share Amount multiplied by the number of Ordinary Shares issuable upon exercise of the portion of the Company Option that is vested as of the Closing, minus (ii) the exercise price of the Company Option multiplied by the number of Ordinary Shares issuable upon exercise of the portion of the Company Option that is vested as of the Closing. Each Company Option that is not vested as of the Closing, if any, shall be cancelled automatically, by virtue of this Agreement and the terms of such Company Option without further action on the part of Buyer, upon the Closing without any payment from Buyer or the Company thereon.
(ii) Notwithstanding anything to the contrary set forth in this Section 1.2 or elsewhere in this Agreement, the Paying Agent shall deliver the portion of the Purchase Price payable pursuant to the foregoing paragraph in respect of (a) Each any Company Option Plan and each issuance of 102 Options that are vested Company Options has been administered in all material respects and (b) Company 102 Shares to the 102 Trustee to be held and released in accordance with its terms the agreement with the 102 Trustee, applicable Law (including Table of Contents the provisions of Section 102 of the Israel Tax Ordinance and all Applicable Lawsthe regulations and rules promulgated thereunder, including federal and state securities laws the completion of any required 102 Trust Period) and the CodeIsraeli 102 Tax Ruling or the Interim Options Tax Ruling. With respect The 102 Trustee shall be required to each Company Option Plan and each issuance withhold any amounts required in accordance with applicable Law (including the provisions of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws Section 102 of the Israel Tax Ordinance and the Code have been timely filed with regulations and rules promulgated thereunder) and the appropriate Governmental Authority Israeli 102 Tax Ruling or the Interim Options Tax Ruling, as applicable.
(iii) The Company shall, promptly after the date hereof and prior to the Closing, take or cause to be taken all material actions (including adopting all resolutions, providing notices and disclosures have been timely provided to participants procuring consents (after review and recipients. With respect to approval by Buyer, which approval will not unreasonably be withheld or delayed, of the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability forms thereof)) that are required under the terms of, or with respect to, each Company Option Plan, the terms of applicable Company Options, federal and state securities lawsapplicable Law or this Agreement, the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure Schedule, no Company Option Plan are otherwise reasonably necessary or issuance appropriate to effectuate cancellation of Company Options between and the other transactions contemplated by this Section 1.2 and to ensure that, from and after Closing, each holder of a Company Option cancelled as provided in this Section 1.2 shall cease to have any rights with respect thereto, except the right to receive the consideration (if any) specified in and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery terms of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 11.2, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was grantedinterest.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Company Options. (a) Each Company Option Plan Immediately prior to the Effective Time and each issuance of Company Options has been administered in all material respects in accordance with its the existing terms and all Applicable Lawsof the Company Stock Plans, including federal and state securities laws and the Code. With respect to (i) each Company Option Plan (or portion thereof) that is outstanding and each issuance vested as of immediately prior to the Effective Time (including any Company Option that vests as of or immediately prior to the Effective Time pursuant to an MRA, as the result of the holder’s qualifying termination of employment prior to the Effective Time) (each, a “Vested Company Option”) will, without any action on the part of Parent, Merger Sub, the Company or the holder thereof, automatically be cancelled and converted into the right to receive an amount in cash, without interest, equal to (A) the amount of the Per Share Price (less the exercise price per share attributable to such Vested Company Option), multiplied by (B) the total number of shares of Company OptionsCommon Stock issuable upon exercise in full of such Vested Company Option (the “Vested Option Consideration”), which Vested Option Consideration will be paid, less applicable withholding for all taxrequired Taxes, annual reporting and other governmental filings required by federal and state securities laws and in accordance with Section 3.8(d); (ii) each outstanding Company Option (or portion thereof) that is not a Vested Company Option or an MRA Award will, without any action on the Code have been timely filed part of Parent, Merger Sub, the Company or the holder thereof, vest with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to an additional 25% of the total number of shares of Company Common Stock originally subject to such Company Option (provided that in no event will the vesting of a Company Option accelerate as to more than one hundred percent (100%) of such Company Option) (the “Accelerated Company Option”) and automatically be cancelled and converted into the right to receive the Vested Option Consideration, and any remaining unvested portion of such Company Option will be cancelled for no consideration, without any action on the part of Parent, Merger Sub, the Company or the holder thereof; and (iii) each outstanding Company Option (or portion thereof) that is an MRA Award and that is not a Vested Company Option (each, an “Unvested MRA Option”) will, without any action on the part of Parent, Merger Sub, the Company or the holder thereof, automatically be assumed and converted into the right to receive an amount in cash, without interest, equal to (A) the amount of the Per Share Price (less the exercise price per share attributable to such Unvested MRA Option), multiplied by (B) the total number of shares of Company Common Stock issuable upon exercise in full of such Unvested MRA Option (the “Unvested MRA Option Consideration”), with payment of such Unvested MRA Option Consideration to be made less applicable withholding for all required Taxes. Each payment of Unvested MRA Option Consideration will continue to be governed by the same terms and conditions, including the vesting schedule applicable to such Unvested MRA Option as of immediately prior to the Effective Time and any applicable vesting acceleration provisions under the applicable holder’s MRA, except as modified by the following sentence, provided that Unvested MRA Option Consideration payments will be made on the last Business Day of the calendar quarter in which the Unvested MRA Option to which an Unvested MRA Option Consideration payment is attributable would have vested pursuant to the original vesting schedule. On the date that is one (1) year and one (1) day following the Effective Time (such date, the “MRA Award Termination Date”), any Unvested MRA Option Consideration that remains unvested as of the MRA Award Termination Date (and has not previously been forfeited) will immediately be forfeited for no consideration, except that if as of immediately prior to the MRA Award Termination Date, the MRA Award holder remains in service to the Surviving Corporation or its Affiliates but has not received the amount of Unvested MRA Option Consideration that such MRA Award holder would have received had the vesting of the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with pursuant to which the related Unvested MRA Option was granted accelerated as of immediately prior to the Effective Time as to 25% of the total number of shares of Company could be Common Stock originally subject to such Company Option (or if, less, the total number of shares of Company Common Stock that remained unvested as of the Effective Time), the portion of the Unvested MRA Option Consideration necessary to reach such amount shall vest and become payable immediately prior to the MRA Award Termination Date. For the avoidance of any material Liability under doubt, if a holder of an Unvested MRA Option fails to vest in any portion of his or her Unvested MRA Option Consideration (including upon the terms ofMRA Award Termination Date), or such amounts shall be retained by Parent and forfeited by such holder for no consideration. Notwithstanding anything to the contrary in the foregoing, any Company Option with respect toto which the exercise price per share subject thereto is greater than or equal to the Per Share Price shall be cancelled for no consideration immediately prior to the Effective Time, each Company Option Planwithout any action on the part of Parent, Merger Sub, the Company Options, federal or the holder thereof. From and state securities laws, after the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure ScheduleEffective Time, no Vested Company Option, Accelerated Company Option Plan and/or Unvested MRA Option shall be exercisable, and a Vested Company Option, Accelerated Company Option or issuance of Company Options between Unvested MRA Option shall only entitle the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant holder thereof to the execution and delivery of Vested Option Consideration or Unvested MRA Option Consideration, as applicable, provided in this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwiseSection 3.8(a). Each Company Unvested MRA Option Plan that Consideration payment hereunder is intended to be a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning separate “payment” for purposes of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) comply with or be exempt from Section 409A of the underlying Common Stock on the date the Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salariesCode, and other payments any ambiguities hereunder will be interpreted in a manner intended to its employees, independent contractors and other service providers, and is not liable for any arrears maintain such exemption from or compliance with Section 409A of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposesCode.
Appears in 1 contract
Samples: Merger Agreement (Rocket Fuel Inc.)
Company Options. As soon as practicable following the date of this Agreement (ato the extent not such actions have not already been taken), the Board of Directors of the Company (or, if appropriate, any committee administering the Company Stock Plan) shall adopt such resolutions or take such other actions (including obtaining any required consents) as may be required to effect the following.
(i) Each Company Option Plan and each issuance of Company Options that has been administered granted under the Company Stock Plan will, by virtue of the Merger, be treated as follows: (A) The portion of any Vested Company Option that is outstanding immediately prior to the Effective Time and then exercisable for an exercise price less than the Per Share Consideration (any such portion of such Vested Company Option, an “In-the- Money Vested Option”) shall be canceled in all material respects exchange for payment to the holder of such Vested Company Option of an amount in cash equal to the amount, if any, by which (I) the Per Share Consideration that would be payable in accordance with its terms and all Applicable Laws, including federal and state securities laws and the Code. With Section 2.6(a) of this Agreement in
(ii) The adjustments provided in Section 2.6(b)(i)(B) with respect to each Company Option Plan and each issuance of Company Rollover Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition whether or set of circumstances not such Rollover Options are “incentive stock options” (as defined in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure Schedule, no Company Option Plan or issuance of Company Options between the Company and any "service provider" (within the meaning of Section 409A 422 of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject are intended to be effected in a manner that is consistent with Section 409A 424(a) of the Code.
(iii) All amounts payable pursuant to this Section 2.6(b) shall be subject to any required withholding of Taxes and shall be paid without interest.
(iv) At the Effective Time, whether by virtue of the Merger and without the need of any further corporate action, Acquiror shall assume the Company Stock Plan, with the result that Acquiror may issue the Assumed Shares after the Effective Time pursuant to the execution and delivery exercise of this Agreement options or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered other equity awards granted under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was grantedStock Plan or any other plan of Acquiror or any its Affiliates.
(cv) The All Company has withheld Options not covered by Sections 2.6(b)(i)(A) and paid all amounts required by law or by agreement to be withheld from the wages2.6(b)(i)(B), salaries, and other payments to its employees, independent contractors and other service providers, and including any Company Option that is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services outstanding immediately prior to the Company as employees Effective Time with an exercise price that is equal to or non-employees for all relevant purposesgreater than the Per Share Consideration, shall be canceled at the Effective Time without payment of any consideration.
Appears in 1 contract
Samples: Merger Agreement (Qualcomm Inc/De)
Company Options. (aSection 2.2(c) Each of the Company Option Plan and each issuance Schedule sets forth a list of Company Options has been administered in all material respects in accordance with its terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of outstanding Company Options, all taxincluding the names and positions of the respective holders thereof, annual reporting the number and other governmental filings required by federal and state type of securities laws issuable upon exercise, the exercise price for such underlying securities, the plan or arrangement pursuant to which the Company Options were granted, whether such Company Options are incentive stock options within the meaning of Section 422 of the Code (“ISOs”) or options that are not ISOs, and the Code vesting status of such Company Options (including the number of shares vested and unvested to date and a description of all circumstances in which the vesting schedule can or will be accelerated). The Company shall deliver an updated copy of such list at the Closing current as of the Closing Date. All Company Options have been timely filed with issued to directors, employees and consultants of the appropriate Governmental Authority and all material notices and disclosures have been timely provided Company pursuant to participants and recipientsthe Company’s 2001 Stock Incentive Plan or the 1999 Stock Option Plan (collectively, the “Company Plans”). With respect As of the date hereof, the total number of shares of Company Common Stock authorized for issuance pursuant to Company Options granted pursuant to the Company Option Plans is 4,754,000, of which Company Options to purchase 4,221,416 shares of Company Common Stock currently are issued and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) outstanding. Except as set forth in Schedule 4.9.14 Section 2.2(c) of the Company Disclosure Schedule, no Company Option Plan or issuance of all Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether granted pursuant to the execution Company Plans (and delivery all shares of this Agreement or Company Common Stock issued upon exercise thereof) were issued in compliance with the consummation terms and requirements of the Transactions contemplated hereby (either alone applicable Company Plans and the requirements of applicable federal, state and foreign securities laws. There are no other outstanding Company Options or upon oral or written agreements, arrangements or understandings to which the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject party requiring the Company to Section 409A issue any Company Options or any securities or rights exercisable or exchangeable for, or convertible into, shares of Company capital stock or other voting securities. The terms of each of the Code has been operated and administered in good faith compliance with Section 409A Company Plans contemplate the assumption by Parent of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each all outstanding Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions Options as contemplated in by this Agreement) is not less than , without the fair market value (within the meaning consent or approval of such holders of Company Options, and, except as set forth in Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder2.2(c) of the underlying Common Stock on the date Company Schedule, such action will not result in liability of the Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages Surviving Entity or any taxes acceleration of the exercise schedule or vesting provisions, or otherwise result in any penalty for failure changes in or to withhold the terms, of such Options or pay such amountsthe agreements or arrangements related thereto. The Company has properly classified provided Parent true and correct copies of all individuals providing services Company Plans and all agreements and arrangements related to or issued under such Company Plans, in each case as amended to date and in effect. There are no currently pending or contemplated amendments, modifications or supplements to any of the Company as employees Plans or non-employees for all relevant purposesany such agreements or arrangements. No subsidiary of the Company has any options or similar rights to acquire capital stock or other securities authorized, issued or outstanding, nor has any such subsidiary entered into any agreement, arrangement or implemented any stock incentive, stock option or other plan or arrangement pursuant to which such subsidiary may or is obligated to issue any such options or other securities.
Appears in 1 contract
Samples: Merger Agreement (Valueclick Inc/Ca)
Company Options. (a) Each Company Option Plan and each issuance of Neither Parent nor Acquisition Sub shall assume any Company Options has been administered in all material respects in accordance with its terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Offer, Merger or any other transactions contemplated by this Agreement. Effective upon the Offer Closing, each outstanding unvested, unexpired and unexercised Company could be subject Option shall vest and become exercisable. To the extent not exercised prior to any material Liability under the terms ofEffective Time, or with respect tothen upon the Effective Time, each Company Option Planshall be cancelled. Each former holder of any such cancelled Company Option shall be entitled to receive, at the Effective Time or as soon as practicable thereafter, (i) an amount in cash, without interest and subject to Section 3.8(h), equal to (A) the excess of (1) the Cash Consideration over (2) the exercise price per share of Company Common Stock subject to such Company Option multiplied by (B) the total number of shares of Company Common Stock subject to such Company Option and (ii) a CVR for each share of Company Common Stock subject to such Company Option; provided, that, for the avoidance of doubt, the amount payable shall be zero with respect to a Company Option that has a per share exercise price that is equal to or exceeds the Cash Consideration and such Company Option shall be cancelled and terminated without any payment being made in respect thereof (whether in the form of cash or a CVR), and the holder of any such Company Option shall have no further rights with respect thereto. CVRs in respect of Company Options shall be subject to the same terms and conditions as apply to CVRs in respect of Company Common Stock generally. As soon as practicable following the date of this Agreement, the Company Optionsshall take all actions necessary to effect the transactions contemplated by this Section 3.7(d) under the Company Stock Plan and all Company Option agreements and any other plan or arrangement of the Company, federal including delivering all required notices and state securities lawsmaking any determinations and/or resolutions of the Company Board or a committee thereof. The Company shall ensure, prior to the Effective Time, that following the Effective Time, no holder of a Company Option (or former holder of a Company Option) or any current or former participant in any Company Stock Plan or Employee Plan shall have any right thereunder to (A) acquire any capital stock of the Company, the Code Surviving Corporation or their Subsidiaries or any other Applicable Lawequity interest therein or (B) receive any other consideration in respect of such Company Option.
(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure Schedule, no Company Option Plan or issuance of Company Options between the Company and any "service provider" (within the meaning of Section 409A of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the Code, whether pursuant to the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract
Samples: Merger Agreement (Chelsea Therapeutics International, Ltd.)
Company Options. (a) Each The Company Option Plan and each has reserved 4,469,879 Company Ordinary Shares for issuance of under the Company’s Stock Plan, as to which Company Options has been administered in all material respects in accordance to purchase an aggregate of 3,645,615 Company Ordinary Shares are outstanding as of the date of this Agreement and Company Options to purchase an aggregate of 824,264 Company Ordinary Shares remain available for future grants as of the date of this Agreement. Section 3.2(b) of the Disclosure Schedule accurately sets forth, with its terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance that is outstanding as of the date of this Agreement: (i) the name of the holder of such Company Option; (ii) the country of residence of the holder of such Company Option; (iii) the total number of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws Ordinary Shares that are subject to such Company Option and the Code have been timely filed number of Company Ordinary Shares with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the which such Company Option Plans is immediately exercisable; (iv) the date on which such Company Option was granted and the term of such Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which Option; (v) the Company could be subject to any material Liability under the terms of, or with respect to, each vesting schedule for such Company Option Plan, and the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 status of the Company Disclosure Schedule, no such Company Option as fully vested, partially vested or unvested; (vi) the exercise price per Company Ordinary Share purchasable under such Company Option; (vii) the Stock Plan or issuance of under which such Company Options between the Option was granted; (viii) whether such Company and any "service provider" (within the meaning of Option is an “incentive stock option” as defined in Section 409A 422 of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation ; (ix) whether such Company Option is subject to Section 409A of the Code; and (x) whether such Company Option was granted under Section 102 or Section 3(i) of the Ordinance, and with respect to Company Options granted under Section 102 whether it was elected to treat such option under the capital gain route or ordinary income route. Each grant of a Company Option was duly authorized no later than the date on which the grant of such Company Option was by its terms to be effective (the “Grant Date”). Each grant of a Company Option has been authorized by all necessary corporate action, including, as applicable, approval by the board of directors of the Company or similar body (or a duly constituted and authorized committee thereof) and any required shareholder approval by the necessary number of votes or written consents. Each award agreement governing the grant of a Company Option was duly executed and delivered by each party thereto and is in full force and effect. Each grant of a Company Option was made under a Stock Plan and otherwise in accordance with the terms of the Stock Plan pursuant to the execution and delivery of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each which such Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated was granted and administered all applicable Legal Requirements in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereofall material respects. The per-share exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard granted to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less a U.S. Taxpayer was equal to or greater than the fair market value (within the meaning of a Company Ordinary Share Grant Date, as determined in accordance with Section 409A of the Code and Code. All Company Options with respect to Company Ordinary Shares that were ever issued by the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock Company ceased to vest on the date on which the holder thereof ceased to be an employee of, or a consultant to, any of the Acquired Companies. Each exercise of a Company Option complied with the terms of the Stock Plan pursuant to which such Company Option was granted.
(c) The , all Contracts applicable to such Company has withheld Option and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amountsLegal Requirements. The Company has properly classified Made Available to Purchaser accurate and complete copies of each Stock Plan, each form of agreement used thereunder and each Contract pursuant to which any Company Option is outstanding. True, correct and complete copies of all individuals providing services material tax rulings, opinions, written correspondence and filings by the Company with the ITA relating to each Stock Plans and any awards thereunder have been Made Available to Purchaser. No Company Options have terms or provisions that differ from or are inconsistent in any material respect with such form agreements. Except as provided in Section 1.2, from and after the Closing, no individual who held a Company Option at any time prior to the Closing will have any rights with respect to such Company Option. From and after the Closing: (A) no holder of a Vested Option will have any rights with respect to such Vested Option other than the right to receive cash in respect thereof as employees contemplated by Section 1.2(a); (B) no holder of an Unvested Option will have any rights with respect to such Unvested Option other than the right to receive an Unvested RSU Award in respect thereof as contemplated by Section 1.2(b); and (C) no holder of any Underwater Option will have any rights with respect thereto in connection with the Contemplated Transactions or non-employees any right or claim arising from the cancellation and termination thereof for all relevant purposes.no consideration as provided in Section
Appears in 1 contract
Company Options. (a) Each The Company Option Plan and each issuance has reserved an aggregate of 9,815,730 shares of Company Common Stock for issuance pursuant to the Company Stock Plan (including shares subject to outstanding Company Options). A total of 6,974,740 shares of Company Common Stock are subject to outstanding Company Options, of which 3,246,054 were exercisable, as of the Agreement Date, except for Company Options has been administered outstanding as of the Agreement Date that are exercised, forfeited or otherwise expired, in all material respects each case, in accordance with its their terms and all Applicable Laws, including federal and state securities laws and the Code. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect prior to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect to, each Company Option Plan, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(bClosing Date. Schedule 3.4(b) Except as set forth in Schedule 4.9.14 of the Company Disclosure ScheduleLetter sets forth, no as of the Agreement Date, for each Company Option: (i) the name of the holder of such Company Option, (ii) the exercise price per share of such Company Option, (iii) the number of shares covered by such Company Option, (iv) the date of grant and vesting schedule for such Company Option, (v) the extent such Company Option Plan is vested as of the Agreement Date, (vi) whether such Company Option is an incentive stock option or issuance non-statutory stock option under the Code or an EMI Option, and (vii) other than with respect to the acceleration of Company Options between expressly contemplated by Section 2.2(h), whether the exercisability of such Company Option shall be accelerated in any manner by any of the transactions contemplated by this Agreement or upon any other event or condition and the extent of acceleration, if any. True, complete and correct copies of the Company Stock Plan, the standard agreements under the Company Stock Plan and each agreement for stock options or stock under the Company Stock Plan that does not conform (other than variations in vesting provisions) to the standard agreements under the Company Stock Plan that have been made available to Parent, and the Company Stock Plan and such agreements have not been amended, modified or supplemented since being made available to Parent, and there are no agreements, understandings or commitments to amend, modify or supplement the Company Stock Plan or such agreements in any "service provider" (within the meaning of Section 409A case from those made available to Parent. The terms of the Code)Company Stock Plan and all applicable Laws permit the treatment of Company Options as provided herein, including without the grant, vesting consent or exercise approval of any stock option Company Optionholders, the Company Stockholders or stock appreciation rightotherwise, will and the Company has taken all action necessary (under the Company Stock Plan or may provide for otherwise) to effectuate the deferral provisions of compensation subject this Agreement as it relates to Section 409A Company Options, and to ensure that, from and after the Closing, each holder of any EMI Options shall cease to have (and, as of the CodeClosing, whether no holder of any such EMI Options will have) any rights with respect thereto, except, where applicable, the right to receive the consideration specified in Section 2.2 without interest (pursuant to the execution provisions of Section 2.2(d)), or to Parent EMI Options or Assumed Options (pursuant to Section 2.2(f)). No Company Options are subject to any right of rescission, right of first refusal or preemptive right and delivery all Company Options have been issued under the Company Stock Plan in compliance with Law and all requirements set forth in applicable Contracts. All Company Options and shares of this Agreement or Company Common Stock issued upon exercise thereof have been issued and granted in accordance with the consummation terms of the Transactions contemplated hereby (either alone or upon the occurrence Company Stock Plan in compliance with Law and all requirements set forth in applicable Contracts. No disqualifying event has occurred in respect of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A EMI Options for the purposes of the Code has been operated and administered in good faith compliance with Section 409A Schedule 5 of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amountsITEPA. The Company has, or will have as at the Closing Date, entered into joint elections with all holders of EMI Options for such holders to assume the liability for any employer’s National Insurance contributions arising in respect of the exercise or settlement of such options. Other than the Company Stock Plan, none of the Acquired Companies has properly classified all individuals providing services any equity or equity-based incentive plan or arrangement under which any Company Option, Company Restricted Share or other equity incentive award may be issued or granted. Notwithstanding anything else in this Agreement to the Company contrary, the Acquired Companies make no representations or warranties as employees to the eligibility for any tax-favored status applicable to enterprise management options treatment for EMI Options at or non-employees for all relevant purposesfollowing the Closing Date, and none of the Indemnified Parties shall be entitled to any indemnification hereunder with respect thereto.
Appears in 1 contract
Company Options. Effective as of the Effective Date, all outstanding options (each a "Company Option" and, collectively, the "Company Options") to purchase Company Common Stock held by employees of the Company, whether or not such options are then exercisable, shall be assumed by Parent and shall be exercisable upon the same terms and conditions as under the applicable option and the Company stock option or stock incentive plan, except that each such option shall be exercisable for a whole number of shares of Parent Stock equal to (a) Each the number of shares of Company Common Stock subject to the Company Option, multiplied by (b) the Exchange Ratio (such product rounded down to the nearest whole number) (a "Replacement Option"), at an exercise price per share (rounded to the nearest whole cent) equal to (y) the aggregate exercise price for the shares of Company Stock which were purchasable pursuant to such Company Option Plan and each issuance divided by (z) the number of Company Options has been administered in all material respects full shares of Parent Stock subject to such Replacement Option in accordance with its terms and all Applicable Laws, including federal and state securities laws and the Codeforegoing. With respect to each Company Option Plan and each issuance of Company Options, all tax, annual reporting and other governmental filings required As is contemplated by federal and state securities laws and the Code have been timely filed with the appropriate Governmental Authority and all material notices and disclosures have been timely provided to participants and recipients. With respect to the Company Option Plans and the Company Options, no event has occurred and there exists no condition or set of circumstances in connection with which the Company could be subject to any material Liability under the terms of, or with respect toforegoing, each Company Option Plan(as defined in Section 422 of the Code) shall be adjusted in accordance with the requirements of Section 424 of the Code. The Company reserves the right to amend any of the 1997 Stock Incentive Plan of the Company, the Company Options, federal and state securities laws, the Code or any other Applicable Law.
(b) Except as set forth in Schedule 4.9.14 1995 Stock Incentive Plan of the Company Disclosure Schedule, no Company or the 1991 Stock Option Plan or issuance of Company Options between the Company (each, a "Stock Plan" and any collectively, the "service provider" (within the meaning Stock Plans") to provide for accelerated vesting of Section 409A options held by employees of the Code), including the grant, vesting or exercise of any stock option or stock appreciation right, will or may provide for the deferral of compensation subject to Section 409A of the CodeCompany, whether pursuant or not exercisable, upon (i) termination by the Company without cause; (ii) termination with good reason by the holder; (iii) retirement after age 62 or (iv) termination by reason of death or disability and further to provide that if any such event shall occur then the execution and delivery holder shall have 90 days following termination, retirement, death or disability in which to exercise such options. Any such amendment or modification of a Stock Plan by the Company shall not give rise to a covenant default under Section 5.2 of this Agreement or the consummation of the Transactions contemplated hereby (either alone or upon the occurrence of any additional or subsequent events) or otherwise. Each Company Option Plan that is a nonqualified deferred compensation plan subject to Section 409A of the Code has been operated and administered in good faith compliance with Section 409A of the Code from the period beginning January 1, 2005 through the date hereof. The exercise price of each Company Option not grandfathered under Section 409A of the Code (without regard to any loss of grandfathering resulting from the Transactions contemplated in this Agreement) is not less than the fair market value (within the meaning of Section 409A of the Code and the Treasury regulations and other IRS guidance issued thereunder) of the underlying Common Stock on the date the Company Option was granted.
(c) The Company has withheld and paid all amounts required by law or by agreement to be withheld from the wages, salaries, and other payments to its employees, independent contractors and other service providers, and is not liable for any arrears of wages or any taxes or any penalty for failure to withhold or pay such amounts. The Company has properly classified all individuals providing services to the Company as employees or non-employees for all relevant purposes.
Appears in 1 contract