Company Stock-Based Awards. (a) Prior to the Effective Time, the Company Board (or, if appropriate, any committee administering the Company Stock Plans or Company Phantom Shares) shall adopt such resolutions as may be required to provide for the following, effective upon the Effective Time, in each case, except as otherwise agreed by Parent and the holder thereof in writing: (i) each Company PSU that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company PSU, provided that the number of Company Common Shares subject to such Company PSU shall be determined as if all applicable performance measures have been achieved based on the greater of target performance and actual performance as determined by the Company Board (or appropriate committee thereof) in its reasonable discretion as soon as practicable prior to the Closing Date; (ii) each Company RSU that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company RSU; (iii) each Company Stock Option that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share exercise price of such Company Stock Option, multiplied by (B) the total number of Company Common Shares subject to such Company Stock Option immediately prior to the Effective Time; provided, that any Company Stock Option with an exercise price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration; (iv) each Company SAR that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share base price of such Company SAR, multiplied by (B) the total number of Company Common Shares subject to such Company SAR immediately prior to the Effective Time; provided, that any Company SAR with a base price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration; and (v) each Company Phantom Share that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company Phantom Share. (b) Promptly after the Effective Time (but in any event, no later than the end of the first regular payroll cycle commencing following the Effective Time), the Surviving Corporation shall pay to the holders of Company Stock-Based Awards, through its payroll systems, any amounts due, less applicable Tax withholdings, pursuant to Section 6.04(a); provided, however, that to the extent any such payment would cause an impermissible acceleration event under Section 409A of the Code (“Section 409A”), such amounts shall be paid at the earliest time such payment would not cause an impermissible acceleration event under Section 409A, including as provided on Section 6.04(b) of the Company Disclosure Letter.
Appears in 6 contracts
Samples: Merger Agreement (Ares Management LLC), Merger Agreement (Cincinnati Bell Inc), Merger Agreement (Cincinnati Bell Inc)
Company Stock-Based Awards. (a) Parent shall file with the SEC, as soon as reasonably practicable after the date on which the Mergers become effective, a registration statement on Form S-8, relating to the shares of Parent Common Stock issuable with respect to the Company Stock-Based Awards converted in accordance with Section 1.8 and shall use its reasonable best efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Company Stock-Based Awards remain outstanding and are required to be registered.
(b) At the First Merger Effective Time, Parent may (if Parent determines that it desires to do so) assume any or all of the Company Equity Plans. If Parent elects to assume a Company Equity Plan, then, under such Company Equity Plan, Parent shall be entitled to grant stock awards, to the extent permissible under applicable Legal Requirements, using the share reserves of such Company Equity Plan as of the First Merger Effective Time (including any shares returned to such share reserves as a result of the termination of Company Stock-Based Awards that are assumed and converted by Parent pursuant to Section 1.8), except that: (i) stock covered by such awards shall be shares of Parent Common Stock; (ii) all references in such Company Equity Plan to a number of shares of Company Common Stock shall be deemed amended to refer instead to a number of shares of Parent Common Stock determined by multiplying the number of referenced shares of Company Common Stock by the Exchange Ratio and rounding the resulting number down to the nearest whole number of shares of Parent Common Stock; and (iii) the Parent Board or a committee thereof shall succeed to the authority and responsibility of the Company Board or any committee thereof with respect to the administration of such Company Equity Plan.
(c) Prior to the First Merger Effective Time, the Company Board (or, if appropriate, any committee administering the Company Stock Plans or Company Phantom Shares) shall adopt such resolutions as take all action that may be required necessary (under any Company Equity Plan and otherwise) to provide for effectuate the followingprovisions of Section 1.8 and to ensure that, effective upon from and after the First Merger Effective Time, in each case, except as otherwise agreed by Parent and the holder thereof in writing:
(i) each Company PSU that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company PSU, provided that the number of Company Common Shares subject to such Company PSU shall be determined as if all applicable performance measures have been achieved based on the greater of target performance and actual performance as determined by the Company Board (or appropriate committee thereof) in its reasonable discretion as soon as practicable prior to the Closing Date;
(ii) each Company RSU that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company RSU;
(iii) each Company Stock Option that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share exercise price of such Company Stock Option, multiplied by (B) the total number of Company Common Shares subject to such Company Stock Option immediately prior to the Effective Time; provided, that any Company Stock Option with an exercise price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration;
(iv) each Company SAR that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share base price of such Company SAR, multiplied by (B) the total number of Company Common Shares subject to such Company SAR immediately prior to the Effective Time; provided, that any Company SAR with a base price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration; and
(v) each Company Phantom Share that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company Phantom Share.
(b) Promptly after the Effective Time (but in any event, no later than the end of the first regular payroll cycle commencing following the Effective Time), the Surviving Corporation shall pay to the holders of Company Stock-Based Awards, through its payroll systems, any amounts due, less applicable Tax withholdings, pursuant to Awards have only those rights with respect thereto specifically provided in Section 6.04(a); provided, however, that to the extent any such payment would cause an impermissible acceleration event under Section 409A of the Code (“Section 409A”), such amounts shall be paid at the earliest time such payment would not cause an impermissible acceleration event under Section 409A, including as provided on Section 6.04(b) of the Company Disclosure Letter1.8.
Appears in 2 contracts
Samples: Merger Agreement (Tidewater Inc), Merger Agreement (Gulfmark Offshore Inc)
Company Stock-Based Awards. (a) Prior to Effective as of the First Merger Effective Time, each Company RSU with respect to which shares of Company Common Stock remain unvested or unissued as of the First Merger Effective Time and each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured in whole or in part by the value of a number of shares of Company Common Stock granted by the Company Board and outstanding as of the First Merger Effective Time (oreach, if appropriatea “Company Stock-Based Award”), any committee administering the Company Stock Plans or Company Phantom Shares) shall adopt such resolutions as may be required to provide for the following, effective upon the Effective Timeshall, in each case, be converted automatically into a substantially similar award for, or with respect to, Parent Common Stock, and shall remain subject to the vesting and other conditions in effect on such date with respect to such award, except to the extent that such vesting schedule is accelerated or otherwise affected as otherwise agreed by Parent a result of the Contemplated Transactions, and the holder thereof in writing:
number of shares of Parent Common Stock subject to each such assumed award shall be determined by multiplying: (i) each the number of shares of Company PSU Common Stock that is outstanding were subject to such Company Stock-Based Award immediately prior to the First Merger Effective Time shall, whether vested or unvested, become fully vestedTime; by (ii) the Exchange Ratio, and shall be canceled and rounding the resulting number down to the nearest whole number of shares of Parent Common Stock with any fraction of a share of Parent Common Stock resulting from such rounding converted into the a right to receive a lump-sum amount cash payment calculated in cashaccordance with Section 1.11; provided, without interesthowever, equal that the Parent Board or a committee thereof shall succeed to the product authority and responsibility of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company PSU, provided that the number of Company Common Shares subject to such Company PSU shall be determined as if all applicable performance measures have been achieved based on the greater of target performance and actual performance as determined by the Company Board (or appropriate any committee thereof) in its reasonable discretion as soon as practicable prior thereof with respect to the Closing Date;
(ii) each such assumed Company RSU that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lumpStock-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company RSU;
(iii) each Company Stock Option that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share exercise price of such Company Stock Option, multiplied by (B) the total number of Company Common Shares subject to such Company Stock Option immediately prior to the Effective Time; provided, that any Company Stock Option with an exercise price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration;
(iv) each Company SAR that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share base price of such Company SAR, multiplied by (B) the total number of Company Common Shares subject to such Company SAR immediately prior to the Effective Time; provided, that any Company SAR with a base price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration; and
(v) each Company Phantom Share that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company Phantom ShareBased Award.
(b) Promptly after Immediately following the First Merger Effective Time (but in any eventTime, no later than the end of the first regular payroll cycle commencing following the Effective Time), the Surviving Corporation shall pay to the holders holder of Company Stock-Based Awards, through its payroll systemsnor any participant in any Company Equity Plan, Company Employee Plan or employee benefit arrangement of the Company Entities, or any amounts due, less applicable Tax withholdings, pursuant individual party to an employment agreement or arrangement with the Company Entities shall have any right hereunder or thereunder to acquire any equity interest (including any “phantom” stock or stock appreciation right) or to receive cash in respect of any equity interest in any of the Company Entities or the Surviving Corporation.
(c) The Company shall take further actions as may be required to cause the conversion of each Company Stock-Based Award as is set forth in this Section 6.04(a); provided, however, that 1.8 to the extent any such payment would cause an impermissible acceleration event under comply with or be exempt from Section 409A of the Code (“Section 409A”)Code, such amounts as may be reasonably requested by Parent. Parent shall reserve for issuance a number of shares of Parent Common Stock at least equal to the number of shares of Parent Common Stock that will be paid at subject to the earliest time such payment would not cause an impermissible acceleration event under Section 409A, including Company Stock-Based Awards as provided on Section 6.04(b) a result of the Company Disclosure Letteractions contemplated by this Section 1.8.
Appears in 2 contracts
Samples: Merger Agreement (Gulfmark Offshore Inc), Merger Agreement (Tidewater Inc)
Company Stock-Based Awards. (a) Prior to As of the Effective Time, by virtue of the Company Board (orMerger and without any action on the part of the holders thereof, if appropriate, any committee administering the each Company Stock Plans or Company Phantom Shares) shall adopt such resolutions as may be required to provide for the following, effective upon the Effective Time, in each case, except as otherwise agreed by Parent and the holder thereof in writing:
(i) each Company PSU that is Option outstanding immediately prior to the Effective Time shallTime, whether or not vested or unvestedexercisable, become fully vested, and shall be canceled cancelled and converted into the right holder thereof shall be entitled to receive a lump-sum at the Effective Time from the Surviving Corporation an amount in of cash, without interest, equal to the product of (Ai) the Merger Consideration and (B) the total number of Company Common Shares shares subject to such Company PSUStock Option, provided that the number of Company Common Shares subject to such Company PSU shall be determined as if all applicable performance measures have been achieved based on the greater of target performance and actual performance as determined multiplied by the Company Board (or appropriate committee thereof) in its reasonable discretion as soon as practicable prior to the Closing Date;
(ii) the excess, if any, of the Merger Consideration over the exercise price per share of such Company Stock Option (with the aggregate amount of such payment to the holder to be rounded to the nearest cent), less the amount of any withholding required under applicable Tax Law.
(b) As of the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each Company RSU that is outstanding Performance Share Award and Performance-Based Restricted Stock Unit Award outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled cancelled and converted into the right holder thereof shall be entitled to receive a lump-sum at the Effective Time from the Surviving Corporation an amount in of cash, without interest, equal to the product of (Ai) the target number of shares or units underlying such award, multiplied by (ii) the Merger Consideration and (B) with the number aggregate amount of Company Common Shares subject such payment to such Company RSU;the holder to be rounded to the nearest cent), less the amount of any withholding required under applicable Tax Law.
(iiic) each Company Stock Option that is outstanding immediately prior to As of the Effective Time shallTime, whether vested or unvestedby virtue of the Merger and without any action on the part of the participants therein, be deemed the phantom stock units (“Phantom Stock Units”) credited to be fully vestedeach participant’s account under the Second Amended and Restated EnergySouth, Inc. Non-Employee Directors Deferred Fee Plan and the 2005 Non-Employee Directors Deferred Fee Plan (“Deferred Fee Plans”) shall be canceled and converted into the right to receive a lump-sum dollar amount in cash, without interest, equal to the product of (Ai) the excessnumber of Phantom Stock Units credited to such participant’s account, if any, of multiplied by (1ii) the Merger ConsiderationConsideration (with such amount to be rounded to the nearest cent). As of the Effective Time, over such dollar amount shall be credited to such participant’s cash account under the applicable Deferred Fee Plan, and the Phantom Stock Units shall be debited from such participant’s plan account. As of the Effective Time and thereafter, such participant’s account shall be credited with interest when and as provided in the applicable Deferred Fee Plan and distributable in cash in accordance with the participant’s distribution election and the terms and conditions of the Deferred Fee Plans. Prior to the Effective Time, the Company shall amend the Deferred Fee Plans to provide that, as of the Effective Time and thereafter, no further Phantom Stock Units shall be credited to the accounts of participants and the accounts of participants shall be distributable only in the form of cash.
(2d) Prior to the per share exercise price Effective Time, the Board of Directors of the Company (or the appropriate committee thereof) shall take or cause to be taken all actions necessary to effectuate this Section 2.08 to the extent such treatment is not expressly provided for by the terms of the applicable Stock Plans and related award agreements, Contracts or participant election forms, including, without limitation, the adoption of any necessary amendments to the Stock Plans. Prior to the Effective Time and as soon as administratively practicable, the Company shall use commercially reasonable efforts to obtain from each holder of Company Stock Options granted under the Amended and Restated Stock Option Plan of EnergySouth, Inc. and the 2003 Stock Option Plan of EnergySouth, Inc. a written consent and release (in a form reasonably acceptable to Parent) providing for the treatment of such Company Stock OptionOptions as provided under Section 2.08(a) hereof, multiplied by (Bwhich Section 2.08(a) the total number will govern regardless of Company Common Shares subject to such whether a particular holder of a Company Stock Option delivers such a consent.
(e) Notwithstanding anything in this Agreement to the contrary, if the Effective Time occurs prior to November 15, 2008, immediately prior to the Effective Time, the Company shall pay any amounts due to each employee then actively employed by the Company or a Company Subsidiary under an outstanding award granted under the Company’s Executive Incentive Compensation Plan or Employee Incentive Compensation Plan with respect to the full fiscal year ending on September 30, 2008. The amount of each such payment shall be reasonably consistent with the intent of the Company’s Executive Incentive Compensation Plan or Employee Incentive Compensation Plan, as determined in the exercise of reasonable good faith discretion by the Compensation Committee of the Board of Directors with regard to the Executive Incentive Compensation Plan and by the President and Chief Executive Officer of the Company with regard to the Employee Incentive Compensation Plan; provided, that any Company Stock Option with an exercise price per Company Common Share that is equal to or greater than the Merger Consideration aggregate amount of such payments under both such Plans shall be canceled for no consideration;
(iv) each Company SAR that is outstanding immediately prior to not exceed $4,800,000. In the event the Effective Time shalloccurs on or after November 15, whether vested or unvested2008, be deemed to be fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share base price of such Company SAR, multiplied by (B) the total number of Company Common Shares subject to such Company SAR immediately prior to the Effective Time, the Company shall pay to each employee any amounts due such employee under the terms and conditions of such an award and the Executive Incentive Compensation Plan or Employee Incentive Compensation Plan for the full fiscal year ending September 30, 2008; provided, that any Company SAR with a base price per Company Common Share that is equal to or greater than the Merger Consideration aggregate amount of such payments under both such Plans shall not exceed $4,800,000. For the avoidance of doubt, the $4,800,000 cap on payments described above under this Section 2.08(e) shall be canceled for no consideration; and
exclusive of the bonus pool funding the Team Performance Awards, as defined in the Employment Agreements, effective April 2, 2007, between EnergySouth Midstream, Inc. and Xxx X. Xxxxx, W. Xxxx Xxxxx and Xxxx X. Xxxxxxxxx, which Team Performance Awards shall be paid in accordance with such Employment Agreements. Not less than five (v5) each Company Phantom Share that is outstanding immediately Business Days prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company Phantom Share.
(b) Promptly after the Effective Time (but in any event, no later than the end determination of the first regular payroll cycle commencing following amounts of such payments by the Effective Time), the Surviving Corporation shall pay to the holders of Company Stock-Based Awards, through its payroll systems, any amounts due, less applicable Tax withholdings, pursuant to Section 6.04(a); provided, however, that to the extent any such payment would cause an impermissible acceleration event under Section 409A Compensation Committee of the Code (“Section 409A”), such amounts shall be paid at the earliest time such payment would not cause an impermissible acceleration event under Section 409A, including as provided on Section 6.04(b) Board of Directors of the Company Disclosure Letter(in the case of the Executive Incentive Compensation Plan), or the Chief Executive Officer of the Company (in the case of the Employee Incentive Compensation Plan), as applicable, the Company shall provide to Parent a schedule setting forth the employees to whom the payments described in this Section 2.08(e) are to be made, and the amount of each such payment. For purposes of any employment agreement entered into between the Company or a Company Subsidiary and such an employee, such payment shall be deemed full payment of such employee’s annual incentive award pursuant to the terms of such employee’s employment agreement.
Appears in 1 contract
Samples: Merger Agreement (Energysouth Inc)
Company Stock-Based Awards. (ai) At the Effective Time, each then outstanding Company RSU Award, whether or not vested, shall be canceled and, other than the Specified RSU Awards, converted into the right to receive from the Surviving Corporation, an amount (subject to any applicable withholding tax) in cash equal to the product of (x) the number of shares of Company Common Stock subject to such Company RSU Award immediately prior to the Effective Time and (y) the Per Share Price (the “RSU Consideration”). Parent shall, or shall cause the Company to, pay to holders of Company RSU Awards (other than holders of the Specified RSU Awards) the RSU Consideration, without interest thereon, less applicable Taxes required to be withheld with respect to such payments pursuant to this Section 1.7(d), as soon as reasonably practicable following the Effective Time.
(ii) At the Effective Time, each then outstanding Company Option, whether or not vested, shall be cancelled, and (A) in the case of any Company Option having a per share exercise price less than the Per Share Price, be converted into the right to receive from the Surviving Corporation for each share of Company Common Stock subject to such Company Option immediately prior to the Effective Time, an amount (subject to any applicable withholding tax) in cash equal to the product of (x) the number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time and (y) the amount by which the Per Share Price exceeds the per share exercise price of such Company Option (the “Option Consideration”), or (B) in the case of any Company Option having a per share exercise price equal to or greater than the Per Share Price, without the payment of cash or issuance of other securities in respect thereof. Parent shall, or shall cause the Company to, pay to holders of Company Options the Option Consideration, without interest thereon, less applicable Taxes required to be withheld with respect to such payments pursuant to this Section 1.7(d), as soon as reasonably practicable following the Effective Time.
(iii) Prior to the Effective Time, the Company Board (or, if appropriate, any committee administering the Company Stock Plans or Company Phantom Shares) shall adopt use its reasonable efforts to take such resolutions actions as may be required necessary to provide for the following, effective upon the Effective Time, in each case, except as otherwise agreed by Parent and the holder thereof in writing:
(i) each Company PSU that is outstanding immediately prior give effect to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company PSU, provided that the number of Company Common Shares subject to such Company PSU shall be determined as if all applicable performance measures have been achieved based on the greater of target performance and actual performance as determined transactions contemplated by the Company Board (or appropriate committee thereof) in its reasonable discretion as soon as practicable prior to the Closing Date;
(ii) each Company RSU that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company RSU;
(iii) each Company Stock Option that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share exercise price of such Company Stock Option, multiplied by (B) the total number of Company Common Shares subject to such Company Stock Option immediately prior to the Effective Time; provided, that any Company Stock Option with an exercise price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration;
(iv) each Company SAR that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share base price of such Company SAR, multiplied by (B) the total number of Company Common Shares subject to such Company SAR immediately prior to the Effective Time; provided, that any Company SAR with a base price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration; and
(v) each Company Phantom Share that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company Phantom Share.
(b) Promptly after the Effective Time (but in any event, no later than the end of the first regular payroll cycle commencing following the Effective Timethis Section 1.7(d), the Surviving Corporation shall pay including by delivering to the holders of Company Stock-Based AwardsRSU Awards and the holders of Company Options notices, through its payroll systemsin form and substance reasonably acceptable to Parent, any amounts due, less applicable Tax withholdings, setting forth such holders’ rights pursuant to Section 6.04(a); provided, however, that to the extent any such payment would cause an impermissible acceleration event under Section 409A of the Code (“Section 409A”), such amounts shall be paid at the earliest time such payment would not cause an impermissible acceleration event under Section 409A, including as provided on Section 6.04(b) of the Company Disclosure Letterthis Agreement.
Appears in 1 contract
Company Stock-Based Awards. (a) Prior to the Effective Time, the Company Board (or, if appropriate, any committee administering the Company Stock Plans or Company Phantom Shares) shall adopt such resolutions as may be required to provide for the following, effective upon the Effective Time, in each case, except as otherwise agreed by Parent and the holder thereof in writing:
(i) each Company PSU that is outstanding immediately prior to Except as provided in Section 1.7(d)(iii), at the Effective Time shalland without any action on the part of the holders thereof, each then-outstanding Company RSU Award, whether or not vested or unvestedand without regard to any performance criteria set forth therein, become fully vested, and shall be canceled and converted into the right to receive a lump-sum from the Surviving Corporation an amount (less any applicable withholding tax) in cash, without interest, cash equal to the product of (A) the Merger Consideration and (Bx) the number of shares of Company Common Shares Stock subject to such Company PSURSU Award immediately prior to the Effective Time and (y) the Per Share Price (such product, provided that the number “RSU Consideration”). Parent shall, or shall cause the Company to, pay to holders of Company Common Shares subject RSU Awards the RSU Consideration, without interest thereon, less applicable Taxes required to be withheld with respect to such Company PSU shall be determined as if all applicable performance measures have been achieved based on the greater of target performance and actual performance as determined by the Company Board (or appropriate committee thereof) in its reasonable discretion payments, as soon as reasonably practicable prior to following the Closing Date;Effective Time.
(ii) Except as provided in Section 1.7(d)(iii), at the Effective Time and without any action on the part of the holders thereof, each then-outstanding Company Option, whether or not vested, shall be cancelled, and (A) in the case of any Company Option having a per share exercise price less than the Per Share Price (an “In-the-Money Option”), be converted into the right to receive from the Surviving Corporation, for each share of Company Common Stock subject to such In-the-Money Option immediately prior to the Effective Time, an amount (less any applicable withholding tax) in cash equal to the product of (x) the number of shares of Company Common Stock subject to such In-the-Money Option immediately prior to the Effective Time and (y) the amount by which the Per Share Price exceeds the per share exercise price of such In-the-Money Option (such product, the “Option Consideration”), or (B) in the case of any Company Option having a per share exercise price equal to or greater than the Per Share Price, no cash shall be paid nor other securities or consideration issued in respect thereof. Parent shall, or shall cause the Company to, pay to each holder of In-the-Money Options the Option Consideration, without interest thereon, less applicable Taxes required to be withheld with respect to such payments, as soon as reasonably practicable following the Effective Time.
(iii) Unless, prior to the Effective Time, Parent elects for Sections 1.7(d)(i) and 1.7(d)(ii) to apply, at the Effective Time and without any action on the part of the holders thereof, each Company Option and Company RSU Award that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, become fully vested, and is set forth on Section 1.7(d)(iii) of the Company Disclosure Schedule (each an “Assumed Award”) shall be canceled assumed or substituted by Parent and converted automatically at the Effective Time into an option or restricted stock unit award, as the right case may be, denominated in shares of common stock of Parent (“Parent Common Stock”) and with other terms and conditions substantially similar to receive those of the related Company Option or Company RSU Award, as the case may be, except that the receipt of Parent Common Stock from such Assumed Award shall be conditioned on the holder executing and delivering to Parent a lump-sum amount stockholders’ agreement in cash, without interest, equal to the product of (A) the Merger Consideration form prepared by Parent and (Bi) the number of Company shares of Parent Common Shares Stock subject to each such Assumed Award shall be determined by multiplying the number of shares of Common Stock subject to such Company RSU;
(iii) each Company Stock Option that is outstanding Assumed Award immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and shall be canceled and converted into by the right to receive a lump-sum amount in cash, without interest, equal Exchange Ratio (rounded down to the product nearest whole share) and (ii) if applicable, the exercise price per share of Parent Common Stock (Arounded upwards to the nearest whole cent) the excess, if any, of shall equal (1) the Merger Consideration, over (2x) the per share exercise price for the shares of such Company Common Stock Option, multiplied by (B) the total number of Company Common Shares subject otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time; provided, that any Company Stock Option with an exercise price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration;
(iv) each Company SAR that is outstanding Assumed Award immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested, and divided by (y) the Exchange Ratio. The “Exchange Ratio” shall be canceled and converted into the right to receive a lump-sum amount in cash, without interest, equal to the product of (A) the excess, if any, quotient of (1) the Merger ConsiderationPer Share Price, over divided by (2) the per fair market value of a share base of Parent Common Stock immediately following the Effective Time, as determined by Parent consistent with the price paid by the Affiliates of Parent for (including contributions by such Company SARAffiliates with respect to) a share of Parent Common Stock. For the avoidance of doubt, multiplied by (B) the total number of Company Common Shares subject to such Company SAR immediately unless, prior to the Effective Time; provided, Parent elects for Sections 1.7(d)(i) and 1.7(d)(ii) to apply, no Assumed Award shall be entitled to consideration pursuant to Sections 1.7(d)(i) or 1.7(d)(ii). It is the intention of the parties that any Company SAR with the assumption of the Assumed Awards that are stock options be performed in a base price per Company Common Share manner that is equal in compliance with the adjustment requirements of Section 409A of the Code. Notwithstanding anything in an award agreement or in the Company’s equity incentive plans to the contrary, any holder of an Assumed Award shall, subject to such holder executing and delivering to Parent a stockholders’ agreement in the form prepared by Parent, be entitled to satisfy his or greater than her income tax withholding obligations with respect to the Merger Consideration shall be canceled for no consideration; andexercise or vesting, as the case may be, of an Assumed Award and payment of the exercise price, if applicable, by the surrender of shares of Common Stock otherwise purchasable or deliverable upon such exercise or vesting.
(viv) each Company Phantom Share that is outstanding immediately prior Prior to the Effective Time shallTime, whether vested or unvested, become fully vested, and the Company shall use its commercially reasonable efforts to take such actions as may be canceled and converted into the right necessary to receive a lump-sum amount in cash, without interest, equal give effect to the product of (A) the Merger Consideration and (B) the number of Company Common Shares subject to such Company Phantom Share.
(b) Promptly after the Effective Time (but in any event, no later than the end of the first regular payroll cycle commencing following the Effective Timetransactions contemplated by this Section 1.7(d), the Surviving Corporation shall pay including by delivering to the holders of Company Stock-Based AwardsRSU Awards and the holders of Company Options notices, through its payroll systemsin form and substance reasonably acceptable to Parent, any amounts due, less applicable Tax withholdings, setting forth such holders’ rights pursuant to Section 6.04(a); provided, however, that to the extent any such payment would cause an impermissible acceleration event under Section 409A of the Code (“Section 409A”), such amounts shall be paid at the earliest time such payment would not cause an impermissible acceleration event under Section 409A, including as provided on Section 6.04(b) of the Company Disclosure Letterthis Agreement.
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