Company RSUs (i) Except as set forth in Section 2.8 of the Company Disclosure Letter, at the Effective Time each award of Company RSUs that (A) is vested and outstanding as of immediately prior to the Effective Time or (B) pursuant to its terms as in effect as of the date hereof, would become vested as of the Effective Time (in each case, with any performance conditions applicable to such award of Company RSUs determined in accordance with the applicable award agreement relating thereto as of immediately prior to the Effective Time), will automatically, without any action on the part of the holder thereof, be cancelled and converted into the right to receive an amount in cash, without interest thereon and subject to applicable withholding Taxes, equal to the product of (x) the Per Share Price and (y) the total number of shares of Company Common Stock subject to such award of Company RSUs as of immediately prior to the Effective Time (the “Cash-Out RSU Consideration,” and together with the Cash-Out Option Consideration, the “Cash-Out Equity Award Consideration”).
(ii) Except as set forth in Section 2.8 of the Company Disclosure Letter, at the Effective Time, each award of Company RSUs that (A) was granted prior to the date hereof and (B) is outstanding and unvested as of the Effective Time shall, by virtue of the Merger and without further action on the part of the holder thereof, be cancelled and converted into the contractual right to receive a payment in an amount in cash (without interest and subject to applicable withholding Taxes) equal to the product of (x) the Per Share Price and (y) the total number of shares of Company Common Stock subject to such award of Company RSUs as of immediately prior to the Effective Time (each, a “Converted RSU Cash Award”). Except as otherwise provided in this Section 2.8(c)(ii), each Converted RSU Cash Award shall be subject to the same terms and conditions (including time-based vesting conditions) as applied to the corresponding award of Company RSUs immediately prior to the Effective Time and will become payable to the holder thereof in accordance with the original vesting schedule applicable to the corresponding Company RSU; provided, that each Converted RSU Cash Award shall provide that the unvested portion, if any, of such Converted RSU Cash Award will immediately vest and become payable upon a termination of the holder’s employment or services by the Surviving Corporation or any of its Subsidiaries without “Cause” or a resignation by the holder for “Good Reason” (each as defined in Section 6.10(d) of the Company Disclosure Letter) that occurs within the twelve (12) month period following the Effective Time.
(iii) At the Effective Time, each award of Company RSUs that is (A) granted on or after the date hereof (to the extent expressly permitted pursuant to Section 5.2(g)) and (B) outstanding and unvested as of the Effective Time shall, by virtue of the Merger and without further action on the part of the holder thereof, be assumed by Parent and converted into an Ultimate Parent restricted stock unit award (each, an “Assumed RSU Award”) on the same terms and conditions (including applicable vesting and expiration provisions) as applied to each such award of Company RSUs immediately prior to the Effective Time, except that each Assumed RSU Award shall cover that number of whole shares of Ultimate Parent Common Stock equal to the product of (x) the number of shares of Company Common Stock underlying such award of Company RSUs immediately prior to the Effective Time multiplied by (y) the Equity Award Exchange Ratio, with the result rounded down to the nearest whole number of shares of Ultimate Parent Common Stock.
Company Equity Awards (a) Each option to purchase shares of Company Common Stock that has been granted under the Company Stock Plans (each, a “Company Option”) and that is outstanding and unexercised immediately prior to the Effective Time will, by virtue of the Merger and without any action on the part of the Company, Parent, Merger Sub or the holders thereof, be treated as follows:
(i) as of the Effective Time, each Company Option (whether or not vested) that is outstanding and unexercised immediately prior to the Effective Time and that has a per share exercise price less than the Merger Consideration (an “In-the-Money Option”) will be canceled in exchange for payment to the holder of such In-the-Money Option of an amount in cash equal to (A) the number of shares of Company Common Stock remaining subject to such In-the-Money Option immediately prior to the Effective Time multiplied by (B) the amount by which (x) the Merger Consideration exceeds (y) the per share exercise price for such In-the-Money Option (the “Company Option Cash Out Amount”); and
(ii) each Company Option that is not an In-the-Money Option will be canceled at the Effective Time without payment of any consideration.
(b) As of the Effective Time, each restricted stock unit award subject to time-based or other vesting restrictions that is outstanding under any Company Stock Plan (each, a “Company RSU Award””) immediately prior to the Effective Time, shall, to the extent not vested, become fully vested and then (ii) each such Company RSU Award shall be canceled without any action of the part of any holder or beneficiary thereof in consideration for the right to receive a lump sum cash payment with respect thereto equal to the product of (x) the Merger Consideration and (y) the number of shares of Company Stock represented by such Company RSU Award (the “Company RSU Cash Out Amount”).
(c) All Company Options (whether or not vested) that are outstanding and unexercised immediately prior to the Effective Time, all Company RSU Awards that are outstanding immediately prior to the Effective Time, and rights under the Company Stock Plans, will terminate as of, and contingent upon the occurrence of, the Effective Time (after given effect to this Section 2.3), and, following the Effective Time, no holder of any Company Option, Company RSU Award, or any other rights under the Company Stock Plans will have any right to acquire any equity securities of the Company, its Subsidiaries, or the Surviving Corporation as a result of such holder’s Company Options, Company RSU Awards, or other rights under the Company Stock Plans and the Company shall have no further Liability under or with respect to any such Company Option, Company RSU Awards, or the Company Stock Plans (except as provided pursuant to Section 2.3(a)(i) in respect of In-The-Money Options), or as provided pursuant to Section 2.3(b) in respect of the Company RSU Awards.
(d) Payment of the Company Option Cash Out Amount for each In-the-Money Option and the Company RSU Cash Out Amount for each Company RSU Award is subject to Section 2.7 and will be made as follows: No later than thirty (30) Business Days after the Closing Date, Parent shall, or shall cause the Surviving Corporation to, deliver (through the Surviving Corporation payroll or such other means of payment as Parent may provide) to the holder of any In-the-Money Option or Company RSU Award the applicable Company Option Cash Out Amount or Company RSU Cash Out Amount, net of Tax withholdings. To the extent that such Taxes are so deducted or withheld and paid over to the appropriate Taxing Authority, the amounts thereof will be treated for all purposes hereunder as having been paid to the Person to whom such amounts would otherwise have been paid.
(e) Prior to the Effective Time, the Company shall take (or cause there to be taken, as the case may be) all such actions as are necessary to effect the treatment of Company Options and Company RSU Awards provided for under this Section 2.3, under all Contracts governing the terms of all Company Options and Company RSU Awards, and under any other applicable plan or arrangement to which the Company is a party or by which the Company may be bound with respect to such Company Options, Company RSU Awards or the Company Stock Plans, including (A) to accelerate the vesting of any unvested Company Options that are outstanding and unvested immediately prior to the Effective Time and (B) at the request of Parent or as otherwise may be required, sending to any holders of Company Options notices (if drafted and at the request of Parent, subject to reasonable review and approval by the Company, which approval will not be unreasonably withheld, conditioned or delayed) with respect to the treatment of such instruments under this Agreement. The Company shall not send or otherwise make available any notices to any holders of Company Options, or solicit any consents or other approvals from the holders of any Company Options unless and until Parent has reviewed and approved all such notices and related documentation (including any email messages and notifications) to be sent or made available to such holders (which approval may not be unreasonably withheld or delayed), in each case, solely to the extent such notices, consents or approvals relate to the Merger Transaction.
(f) The Company shall promptly take (or cause there to be taken, as the case may be) all such actions as are necessary to ensure that no offering or purchase period commences under the Company ESPP and that no shares of Company Capital Stock are issued under the Company ESPP. Prior to the Effective Time, the Company shall take (or cause there to be taken, as the case may be) all such actions as are necessary to terminate the Company ESPP such that, from and after the time of such termination, the Company shall have no Liability under or with respect to the Company ESPP.
Equity Awards You will be eligible to receive awards of stock options or other equity awards pursuant to any plans or arrangements the Company may have in effect from time to time. The Board or Committee, as applicable, will determine in its sole discretion whether you will be granted any such equity awards and the terms of any such award in accordance with the terms of any applicable plan or arrangement that may be in effect from time to time.
Company Stock Plans (a) Effective as of the Effective Time, each outstanding stock option, stock equivalent right or right to acquire Shares (each a “Company Option” and collectively, the “Company Options”) granted under the Company’s 1991 Incentive Stock Option Plan, 1997 Stock Option Plan or 2005 Stock Incentive Plan (the “Company Stock Plans”) or granted outside of a plan, without regard to the extent then vested and exercisable, shall be cancelled and, in consideration of such cancellation, Parent shall, or shall cause the Surviving Corporation to, promptly following the Effective Time, pay to such holders of Company Options, an amount in respect thereof equal to the product of (x) the excess, if any, of the Offer Price over the exercise price of each such Company Option and (y) the number of unexercised Shares subject thereto (such payment, if any, to be net of applicable Taxes withheld pursuant to Section 2.5).
(b) Effective as of the Effective Time, restrictions on each restricted stock award (each a “Company Restricted Share” and collectively, the “Company Restricted Shares”) granted under any Company Stock Plan, which is outstanding immediately prior to the Effective Time, will lapse as of such Effective Time and such Company Restricted Shares shall be treated in the same manner as other Shares pursuant to Section 2.1(c) (except that with respect to any restrictions which by the terms provide for a lapse to a lesser extent upon the consummation of the Merger, such restrictions shall only lapse to such lesser extent) (such payment, if any, to be net of applicable Taxes withheld pursuant to Section 2.5).
(c) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company, or any Company Subsidiary (as defined in Section 3.4(a)), shall be cancelled. The Company shall ensure that, after the Effective Time, no person shall have any right under the Company Stock Plans to acquire any capital stock of the Company or the Surviving Corporation or any other equity interest therein (including “phantom” stock or stock appreciation rights), except as set forth herein. The Company Board of Directors (or, if appropriate, any committee thereof administering the Company Stock Plans) shall adopt such resolutions, or take such other actions as may be required, to effect the foregoing.
Equity Award The Executive will be eligible to receive equity awards, if any, at such times and on such terms and conditions as the Board shall, in its sole discretion, determine.
Employee Options A regular employee who is subject to displacement shall have the right to select one of the following options. Upon written presentation of the options, the employee shall have 3 full working days to select an option. This time limit may be extended by the mutual agreement of the Parties:
(a) accept training, if applicable; or
(b) accept placement in a vacant position, either within or outside the bargaining unit, in accordance with the provisions of this Article; or
(c) exercise the bumping rights referred to in this Article; or
(d) accept layoff, retaining the right to recall and to severance pay in accordance with this Agreement; or
(e) accept severance in accordance with Article 9.03 of this Agreement.
RSUs The Continuing Stock Units shall continue to vest in accordance with the terms of the Original RSU Award Documents, on the same basis as such stock units would have become vested if Executive had remained employed under this Agreement through the Scheduled Expiration Date. Except as otherwise expressly provided herein, all such Continuing Stock Units shall be subject to, and administered in accordance with, the Original RSU Award Documents. Any of Executive’s restricted stock unit awards that have not become vested on or before the Termination Date, and that are outstanding at the Termination Date, but which are not Continuing Stock Units, shall automatically terminate on the Termination Date. Notwithstanding any term or provision of the Original RSU Award Documents:
(A) any provisions in such Original RSU Award Documents relating to disability shall not be applicable to any such Continuing Stock Units after the Termination Date; and
(B) in the event of Executive’s death after the Termination Date but prior to the Scheduled Expiration Date, the terms and provisions of the Original RSU Award Documents shall be interpreted and applied in the same manner with respect to such Continuing Stock Units as if Executive were an active employee on the date of Executive’s death.
(C) to the extent that, under the Company’s compensation practices and policies, any tranche of Continuing Stock Units is subject to the achievement of performance conditions which were imposed solely because Executive was an executive officer of the Company who could have been a covered employee within the meaning of Section 162(m) at the time payment in respect of such award was expected to be made (the “Applicable 162(m) Criteria”) and such Applicable 162(m) Criteria relate, in whole or in part, to any performance period continuing after the end of the Company’s fiscal year in which the Termination Date occurs, such Applicable 162(m) Criteria shall be waived as of the Termination Date with respect to such tranche of the Continuing Stock Units; provided, however, that this Paragraph 5(d)(iii)(C) shall not be applicable if and to the extent, in the reasonable opinion of tax counsel to the Company, the presence of such provision would cause any stock units intended to be qualified as other performance based compensation within the meaning of Section 162(m) of the Code to fail to be so qualified at any time prior to Executive’s Termination Date.
Company Stock Options At the Effective Time, each Company Stock --------------------- Option shall be deemed to have been assumed by Evergreen, without further action by Evergreen, and shall thereafter be deemed an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option, that number of shares of Surviving Corporation Common Stock that would have been received in respect of such Company Stock Option if it had been exercised immediately prior to the Effective Time (such Company Stock Options assumed by Evergreen, the "Assumed Chancellor Stock Options"); provided, however, that, for -------- ------- each optionholder, (i) the aggregate fair market value of Surviving Corporation Common Stock subject to Assumed Chancellor Stock Options immediately after the Effective Time shall not exceed the aggregate exercise price thereof by more than the excess of the aggregate fair market value of Company Common Stock subject to Company Stock Options immediately before the Effective Time over the aggregate exercise price thereof and (ii) on a share-by-share comparison, the ratio of the exercise price of the Assumed Chancellor Stock Option to the fair market value of the Surviving Corporation Common Stock immediately after the Effective Time is no more favorable to the optionholder than the ratio of the exercise price of the Company Stock Option to the fair market value of the Company Common Stock immediately before the Effective Time; and provided, -------- further, that no fractional shares shall be issued on the exercise of such ------- Assumed Chancellor Stock Option and, in lieu thereof, the holder of such Assumed Chancellor Stock Option shall only be entitled to a cash payment in the amount of such fraction multiplied by the closing price per share of Surviving Corporation Common Stock on the Nasdaq National Market on the business day immediately prior to the date of such exercise.
Accelerated Vesting of Equity Awards One hundred percent (100%) of Executive’s then-outstanding and unvested Equity Awards will become vested in full. If, however, an outstanding Equity Award is to vest and/or the amount of the award to vest is to be determined based on the achievement of performance criteria, then the Equity Award will vest as to one hundred percent (100%) of the amount of the Equity Award assuming the performance criteria had been achieved at target levels for the relevant performance period(s).
Restricted Stock Units Subject to the terms and conditions provided in this Agreement and the Plan, the Company hereby grants to the Grantee restricted stock units (the “Restricted Stock Units”) as of the Grant Date. Each Restricted Stock Unit represents the right to receive a Share of Common Stock if the Restricted Stock Unit becomes vested and non-forfeitable in accordance with Section 2 or Section 3 of this Agreement. The Grantee shall have no rights as a stockholder of the Company, no dividend rights and no voting rights with respect to the Restricted Stock Units or the Shares underlying the Restricted Stock Units unless and until the Restricted Stock Units become vested and non-forfeitable and such Shares are delivered to the Grantee in accordance with Section 4 of this Agreement. The Grantee is required to pay no cash consideration for the grant of the Restricted Stock Units. The Grantee acknowledges and agrees that (i) the Restricted Stock Units and related rights are nontransferable as provided in Section 5 of this Agreement, (ii) the Restricted Stock Units are subject to forfeiture in the event the Grantee’s Continuous Status as an Employee or Consultant or Non-Employee Director terminates in certain circumstances, as specified in Section 6 of this Agreement, (iii) sales of Shares of Common Stock delivered in settlement of the Restricted Stock Units will be subject to the Company’s policies regulating trading by Employees and Consultants, including any applicable “blackout” or other designated periods in which sales of Shares are not permitted, (iv) Shares delivered in settlement will be subject to any recoupment or “clawback” policy of the Company, regardless of whether such recoupment or “clawback” policy is applied with prospective or retroactive effect, and (v) any entitlement to dividend equivalents will be in accordance with Section 7 of this Agreement. The extent to which the Grantee’s rights and interest in the Restricted Stock Units becomes vested and non-forfeitable shall be determined in accordance with the provisions of Sections 2 and 3 of this Agreement.
