Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company (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 following: (i) adjust the terms of all outstanding Company Stock Options, whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be amended and converted into an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option, the number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code; (ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR"); (iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and (iv) make such other changes to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this Agreement. (b) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger). (c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan. (d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05. (e) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a registration statement on Form S-8 (or another appropriate form) registering a number of shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, such registration statement.
Appears in 3 contracts
Samples: Merger Agreement (Citigroup Inc), Merger Agreement (Olin Corp), Merger Agreement (Chase Industries Inc)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following At the date Effective Time, by virtue of this Agreement, the Board of Directors Merger and without any further action on the part of the Company or the holder thereof, each unexpired and unexercised option to purchase shares of Company Common Stock (ora "Company Stock Option"), if appropriate, any committee thereof administering under the Company Stock Plans) shall adopt such resolutions , or take such other actions as may be required to effect otherwise granted by the following:
(i) adjust the terms Company outside of all outstanding any Company Stock OptionsPlan, whether vested or unvested, will be assumed by Parent as necessary to provide that, at hereinafter provided. At the Effective Time, by virtue of the Merger and without any further action on the part of the Company or the holder thereof, each Company Stock Option outstanding immediately prior to the Effective Time shall will be amended and automatically converted into an option to acquire, on (the same terms and conditions as were applicable under such Company "Parent Stock Option, the number of shares of Parent Common Stock (rounded down ") to the nearest whole share) equal to (A) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to purchase a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to that could have been purchased under such Company SAR immediately prior to the Effective Time Stock Option multiplied by the Exchange RatioConversion Number, and with an appreciation base at a price per share of Parent Common Stock equal to the appreciation base per share option exercise price specified in effect with respect to the corresponding Company SAR immediately prior to the Effective TimeStock Option, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, Conversion Number. Such Parent Stock Option shall otherwise be subject to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based AwardStock Option. At the Effective Time, equal to (i) all references in the number of shares of Company Common Stock subject Plans, the applicable stock option or other awards agreements issued thereunder and in any other Company Stock Options to the Company Stock-Based Award, multiplied by shall be deemed to refer to Parent; and (ii) Parent shall assume the Exchange Ratio (rounded to Company Stock Plans and all of the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes Company's obligations with respect to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this AgreementOptions.
(b) As At the Effective Time, by virtue of the Merger and without any further action on the part of the Company or the holder thereof, each restricted stock award of the Company ("Company Equity Based Award") shall be assumed by the Parent and shall be automatically converted into an identical award with respect to Parent Common Stock ("Parent Equity Based Award"), adjusted based on the Conversion Number, and otherwise subject to the same terms and conditions as the related Company Equity Based Award.
(c) In respect of each Company Stock Option as converted into a Parent Stock Option pursuant to Section 5.8(a) and assumed by Parent, and the shares of Parent Common Stock underlying such option, Parent shall file as soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent Time with the notice contemplated by Section 5.05(b), together with the consideration therefor Securities and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsedExchange Commission, and all other terms thereofkeep current the effectiveness of, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(e) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a registration statement on Form S-8 (which may be accomplished by amendment of the registration statement on Form S-4) or another other appropriate form) registering form for as long as such options or equity based awards remain outstanding (and maintain the current status of the prospectus with respect thereto). Parent agrees to reserve a number of shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to of Parent Common Stock issuable upon the Adjusted exercise of such Company Stock Options. .
(d) The Company shall cooperate withagrees that it will not grant any stock options, restricted stock, stock appreciation rights or limited stock appreciation rights and assist will not permit cash payments to holders of Company Stock Options in lieu of the substitution therefor of Parent Stock Options, as described in the preparation of, such registration statementthis Section 5.8.
Appears in 2 contracts
Samples: Merger Agreement (Saks Holdings Inc), Merger Agreement (Proffitts Inc)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following By virtue of the date Merger, each option to purchase shares of this AgreementCompany Common Stock under the applicable Company Stock Plans that is outstanding immediately prior to the Effective Time, whether or not then vested and exercisable (collectively, the Board of Directors of the Company (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 following:
(i) adjust the terms of all outstanding “Company Stock Options, whether vested or unvested, as necessary ”) shall cease to provide thatrepresent a right to acquire shares of Company Common Stock and shall be converted, at the Effective Time, each Company Stock Option outstanding into a fully vested and immediately prior to the Effective Time shall be amended and converted into an exercisable option to acquirepurchase shares of Parent Common Stock (a “Parent Stock Option”), on the same terms and conditions as were applicable under such Company Stock OptionOption (but taking into account any changes thereto, including the number of shares of Parent Common acceleration thereof, provided for in the Company Stock (rounded down to the nearest whole share) equal to (A) the number of shares of Company Common Stock subject to Plans, in an award agreement or in such Company Stock Option immediately prior to by reason of this Agreement or the Effective Time multiplied by transactions contemplated herein), except that: (Bi) the Exchange Ratio, at each Parent Stock Option shall have an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to for such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock OptionRatio, as so adjustedrounded, an "Adjusted Option")if necessary, up to the nearest whole cent; provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal which shall be subject to each such Parent Stock Option shall be the number of shares of Company Common Stock subject to such each Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR Stock Option immediately prior to the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded Ratio, rounded, if necessary, down to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award; provided, as so adjustedhowever, an "Adjusted Stock-Based Award"); and
(iv) make such other changes that notwithstanding anything to the contrary in this Agreement, in all cases such conversion shall be effected in a manner consistent with the requirements of Section 424(a) of the Code (as modified by Section 409A of the Code with respect to Company Stock Plans Options that are not intended to qualify as “incentive stock options” within the Company and Parent may agree are appropriate to give effect to the Merger. The Board meaning of Directors Section 422 of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this AgreementCode).
(b) As soon Effective immediately prior to the Effective Time, each restricted share of Company Common Stock granted to any employee or director of the Company, any of its Subsidiaries or any of its predecessors under any Company Stock Plan that is outstanding immediately prior to the Effective Time (collectively, the “Company Restricted Stock”) shall, by virtue of the Merger and without any action on the part of the holder thereof, become a fully vested and unrestricted share of Company Common Stock immediately prior to the Effective Time.
(c) Prior to the Effective Time, the Parent Board (or the appropriate committee thereof) and the Company Board (or the appropriate committee thereof) shall take such action and adopt such resolutions as practicable are required to effectuate the treatment of the Company Stock Options pursuant to the terms of Section 1.9(a) of this Agreement, and to take all actions reasonably required to effectuate any provision of this Section 1.9, including (i) the Parent Board (or the appropriate committee thereof) shall take all corporate action necessary or advisable to assume and continue the Company Stock Plans subject to any amendment or termination in accordance with the terms of such plans; (ii) the Parent Board (or the appropriate committee thereof) shall take all corporate action necessary or advisable to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon exercise of a Parent Stock Option; and (iii) the Company Board (or the appropriate committee thereof) shall take all corporate action necessary or advisable to ensure that after the Effective Time, Parent shall neither the Company nor the Surviving Corporation will be required to deliver shares of Company Common Stock or any other capital stock to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights any person pursuant to the respective or in settlement of Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(e) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a Form S-8 registration statement (or such other appropriate form), or a post-effective amendment to a registration statement on Form S-8 (or another appropriate form) registering a number of previously filed under the Securities Act, with respect to the shares of Parent Common Stock representing available for grant and delivery under the number Company Stock Plans from and after the Effective Time and shall use its commercially reasonable efforts to maintain the effectiveness of such registration statement (and maintain the current status of the prospectus contained therein) for so long as such shares are available for grant and delivery under the Company Stock Plans. As soon as practicable following the Effective Time, the Company shall file a post-effective amendment to the Form S-8 registration statement originally filed by the Company on June 25, 2008, deregistering all shares of Parent Company Common Stock equal to the number of shares subject to the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, such registration statementthereunder.
Appears in 2 contracts
Samples: Merger Agreement (Contango Oil & Gas Co), Merger Agreement (Crimson Exploration Inc.)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following By virtue of the date Merger, each option to purchase shares of this AgreementCompany Common Stock under the applicable Company Stock Plans that is outstanding immediately prior to the Effective Time, whether or not then vested or exercisable (collectively, the Board of Directors of the Company (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 following:
(i) adjust the terms of all outstanding “Company Stock Options”) shall, whether vested automatically and without any required action on the part of any holder or unvestedbeneficiary thereof, as necessary to provide thatbe assumed by Parent and shall be converted, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be amended and converted into an option to acquirepurchase shares of Parent Common Stock (a “Parent Stock Option”), on substantially the same terms and conditions as were applicable under such Company Stock Option, the number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to before the Effective Time multiplied (including expiration date, vesting conditions, and exercise provisions, but taking into account any changes thereto, including the acceleration thereof, provided for in the Company Stock Plans, in an award agreement or in such Company Stock Option by reason of this Agreement or the transactions contemplated herein), except that: (Bi) the Exchange Ratio, at each Parent Stock Option shall have an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to for such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock OptionRatio, as so adjustedrounded, an "Adjusted Option")if necessary, up to the nearest whole cent; provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal which shall be subject to each such Parent Stock Option shall be the number of shares of Company Common Stock subject to such each Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR Stock Option immediately prior to the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded Ratio, rounded, if necessary, down to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award; provided, as so adjustedhowever, an "Adjusted Stock-Based Award"); and
(iv) make such other changes that notwithstanding anything to the contrary in this Agreement, in all cases such conversion shall be effected in a manner consistent with the requirements of Section 424(a) of the Code (as modified by Section 409A of the Code with respect to Company Stock Plans Options that are not intended to qualify as “incentive stock options” within the Company and Parent may agree are appropriate to give effect to the Merger. The Board meaning of Directors Section 422 of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this AgreementCode).
(b) As soon Effective immediately prior to the Effective Time, each restricted stock unit relating to Company Common Stock granted to any employee or director of the Company, any of its Subsidiaries or any of its predecessors under any Company Stock Plan that is outstanding immediately prior to the Effective Time (collectively, the “Company Restricted Stock”) shall, by virtue of the Merger and without any action on the part of the holder thereof, become a fully vested and unrestricted share of Company Common Stock immediately prior to the Effective Time.
(c) Prior to the Effective Time, the Parent Board (or the appropriate committee thereof) and the Company Board (or the appropriate committee thereof) shall take such action and adopt such resolutions as practicable are required to effectuate the treatment of the Company Stock Options pursuant to the terms of this Section 1.9, and to take all actions reasonably required to effectuate any provision of this Section 1.9, including (i) the Parent Board (or the appropriate committee thereof) shall take all corporate action necessary or advisable to assume and continue the Company Stock Plans subject to any amendment or termination in accordance with the terms of such plans; (ii) the Parent Board (or the appropriate committee thereof) shall take all corporate action necessary or advisable to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon exercise of a Parent Stock Option; and (iii) the Company Board (or the appropriate committee thereof) shall take all corporate action necessary or advisable to ensure that, after the Effective Time, Parent shall neither the Company nor the Surviving Corporation will be required to deliver shares of Company Common Stock or any other capital stock to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights any person pursuant to the respective or in settlement of Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(e) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a Form S-8 registration statement (or such other appropriate form), or a post-effective amendment to a registration statement on Form S-8 (or another appropriate form) registering a number of previously filed under the Securities Act, with respect to the shares of Parent Common Stock representing available for grant and delivery under the number Company Stock Plans from and after the Effective Time and shall use its commercially reasonable efforts to maintain the effectiveness of shares of Parent Common Stock equal to the number of shares subject to the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, such registration statementstatement (and maintain the current status of the prospectus contained therein) for so long as such shares are available for grant and delivery under the Company Stock Plans.
Appears in 2 contracts
Samples: Merger Agreement (Amtech Systems Inc), Merger Agreement (Btu International Inc)
Company Stock Options and Other Equity-Based Awards. (a) As soon Each Company Stock Option (as practicable following the date of this Agreement, the Board of Directors of the Company (or, if appropriate, any committee thereof administering defined in Section 3.2(b)) that was granted pursuant to the Company Stock PlansOption Plans (as defined in Section 3.2(b)) shall adopt such resolutions or take such other actions as may be required prior to effect the following:
(i) adjust the terms of all outstanding Company Stock Options, whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option Time and which remains outstanding immediately prior to the Effective Time shall cease to represent a right to acquire shares of Company Common Stock and shall be amended and converted converted, at the Effective Time, into an option to acquire, on the same terms and conditions as were applicable under such the Company Stock OptionOption (but taking into account any changes thereto provided for in the Company Stock Option Plans or in such option by reason of this Agreement or the transactions contemplated hereby), the that number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) determined by multiplying the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Timerounded, divided by the Exchange Ratio (each Company SARif necessary, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded to the nearest whole share of Parent Common Stock) , at a price per share (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes rounded to the nearest one-hundredth of a cent) equal to the per share exercise price specified in such Company Stock Plans as Option divided by the Company and Parent may agree are appropriate to give effect to Exchange Ratio; provided, however, that in the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu case of any Company Stock Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code, the option price, the number of shares subject to such option and the terms and conditions of exercise of such option shall be determined in a manner consistent with the requirements of Section 424(a) of the Code. On or prior to the Effective Time, the Company Stock-Based Award will take all actions necessary such that all Company Stock Options outstanding prior to the Effective Time under the Company Stock Option Plans are treated in accordance with the immediately preceding sentences, including, but not limited to, precluding the holder of each Company Stock Option from receiving any cash payments in respect of such Option in connection with or otherwise in respect of the transactions contemplated by this AgreementMerger.
(b) Effective at the Effective Time, Parent shall assume each Company Stock Option in accordance with the terms of the Company Stock Option Plan under which it was issued and the stock option agreement by which it is evidenced. As soon as practicable after the Effective Time, but no later than five (5) Business Days after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards Company Stock Options appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Option Plans (including that, in connection with the Merger and pursuant to the terms of the Company Stock Option Plans, the Company Stock Options of such holders have become fully vested and exercisable) and the agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and Company Stock Options shall continue in effect on the same terms and conditions conditions. To the extent permitted by law, Parent shall comply with the terms of the Company Stock Option Plans and shall take such reasonable steps as are in effect on the date of this Agreement (necessary or required by, and subject only to the adjustments required by this Section 5.05 after giving effect provisions of, such Company Stock Option Plans, to have the Company Stock Options which qualified as incentive stock options prior to the Merger)Effective Time continue to qualify as incentive stock options of Parent after the Effective Time.
(c) A holder Prior to the Closing, Parent shall take all corporate action necessary to reserve for issuance a sufficient number of an Adjusted Option may shares of Parent Common Stock for delivery upon exercise such Adjusted Option in whole of Company Stock Options or in part connection with restricted shares or in connection with the settlement of stock accounts in accordance with its terms by following procedures this Section 1.9 or in connection with any other Company Benefit Plan for which shares of Parent Common Stock are required to be communicated by Parent with reserved for issuance. Promptly after the notice contemplated by Section 5.05(b)Effective Time, together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
but no later than five (d5) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards Business Days after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(e) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a registration statement on Form S-8 S-3 or Form S-8, as the case may be (or another any successor or other appropriate formforms), with respect to the shares of Parent Common Stock subject to such options or restricted shares or stock accounts or Company Benefit Plans for which registration of shares of Parent Common Stock is required and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) registering for so long as such options, restricted shares or stock accounts remain outstanding or for so long as such registration statement is required with respect to any other Company Benefit Plan. With respect to those individuals who subsequent to the Merger will be subject to the reporting requirements under Section 16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), where applicable, Parent shall administer the Company Stock Option Plans in a manner consistent with the exemptions provided by Rule 16b-3 promulgated under the Exchange Act.
(d) Each restricted share of Company Common Stock, and other Company stock awards granted pursuant to the Company Stock Option Plans or Company Benefit Plans which are outstanding immediately prior to the Effective Time shall be converted, as of the Effective Time, into a number of shares of Parent Common Stock representing equal to the product of (1) the number of shares subject to the award and (2) the Exchange Ratio; and the number of shares of Parent Common Stock as so determined shall be delivered to the holder of each such award as soon as practicable following the Effective Time. Such converted awards shall otherwise be subject to the same terms, conditions and restrictions, if any, as were applicable to such awards under the relevant Company Stock Option Plan or Company Benefit Plan. Similarly, all Company Stock Option Plans and Company Benefit Plans (and awards thereunder, including stock appreciation rights) providing for cash payments measured by the value of Company Common Stock shall be deemed to refer to the number of shares of Parent Common Stock equal to the result of multiplying such number of shares subject to of Company Common Stock by the Adjusted Options. The Company shall cooperate withExchange Ratio, and assist Parent in such cash payments shall otherwise be made on the preparation ofsame terms, such registration statementconditions and restrictions, if any, as were applicable under the relevant Company Stock Option Plan or Company Benefit Plan.
Appears in 2 contracts
Samples: Merger Agreement (Pharmacia Corp /De/), Merger Agreement (Pfizer Inc)
Company Stock Options and Other Equity-Based Awards. (a) As soon Each Company Stock Option (as practicable following the date of this Agreement, the Board of Directors of the Company (or, if appropriate, any committee thereof administering defined in Section 3.2(b)) that was granted pursuant to the Company Stock PlansOption Plan (as defined in Section 3.2(b)) shall adopt such resolutions or take such other actions as may be required prior to effect the following:
(i) adjust the terms of all outstanding Company Stock Options, whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option Time and which remains outstanding immediately prior to the Effective Time shall cease to represent a right to acquire shares of Company Common Stock and shall be amended and converted converted, at the Effective Time, into an option to acquire, on the same terms and conditions as were applicable under such the Company Stock OptionOption (but taking into account any changes thereto provided for in the Company Stock Option Plan or in such option by reason of this Agreement or the transactions contemplated hereby), the that number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) determined by multiplying the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Timerounded, divided by the Exchange Ratio (each Company SARif necessary, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded to the nearest whole share of Parent Common Stock) , at a price per share (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes rounded to the nearest one-hundredth of a cent) equal to the per share exercise price specified in such Company Stock Plans as Option divided by the Company and Parent may agree are appropriate to give effect to Exchange Ratio; PROVIDED, HOWEVER, that in the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu case of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect to which Section 421 of the transactions contemplated Code applies by this Agreementreason of its qualification under Section 422 of the Code, the option price, the number of shares subject to such option and the terms and conditions of exercise of such option shall be determined in a manner consistent with the requirements of Section 424(a) of the Code. On or prior to the Effective Time, the Company will take all actions necessary such that all Company Stock Options outstanding prior to the Effective Time are treated in accordance with the immediately preceding sentence.
(b) At the Effective Time, Parent shall assume each Company Stock Option in accordance with the terms of the Company Stock Option Plan under which it was issued and the stock option agreement by which it is evidenced. As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards Company Stock Options appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans Option Plan and the agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions Company Stock Options as are in effect on the date of this Agreement (subject only adjusted pursuant to the adjustments required by this Section 5.05 after giving effect to the Merger)1.9.
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except Prior to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(e) As soon as practicable following the Effective TimeClosing, Parent shall prepare and file with the SEC take all corporate action necessary to reserve for issuance a registration statement on Form S-8 (or another appropriate form) registering a sufficient number of shares of Parent Common Stock representing for delivery upon exercise of Company Stock Options in accordance with this Section 1.9. After the number of shares of Parent Common Stock equal Effective Time, no additional options will be granted pursuant to the number of shares subject Company Stock Option Plan.
(d) Prior to the Adjusted Options. The Closing, the Company shall cooperate with, take all actions reasonably requested by Parent or otherwise necessary to supplement the Company Stock Option Plan to clarify the treatment of the Company Stock Options in the Merger and assist allow the assumption of the Company Stock Options by Parent in the preparation of, such registration statementMerger without the acceleration of vesting.
Appears in 2 contracts
Samples: Merger Agreement (Outdoor Channel Holdings Inc), Merger Agreement (Outdoor Channel Holdings Inc)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company (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 following:
(i) adjust the terms of all outstanding Company Stock Options, whether vested or unvested, as necessary to provide that, at At the Effective Time, each unvested share of Company Common Stock covered by an outstanding award of restricted shares of Company Common Stock (each, a “Company Restricted Share Award”) shall be, in connection with the Merger, cancelled and converted in the same manner as provided for shares of Company Common Stock generally in Section 1.8(a), except that payments of cash and vesting of Parent Common Stock in respect of Company Restricted Share Awards shall occur only upon the attainment, after the Effective Time, of the performance targets applicable to the shares of Parent Common Stock subject to the Restricted Share Award. As modified by the immediately preceding sentence, each Company Restricted Share Award shall be assumed by the Parent under this Agreement at the Effective Time and shall continue to have, and be subject to, the same terms and conditions set forth in the Company Stock Option outstanding Plan and as provided in the award agreement governing such Company Restricted Share Award immediately prior to the Effective Time; provided, however, that the performance targets applicable to the vesting conditions contained in each Company Restricted Share Award after the Effective Time shall be amended as set forth in Exhibit B. For purposes of clarity, all outstanding awards of restricted stock units granted under the Company 2008 Directors’ Plan shall be fully vested as of the Effective Time and converted into an shall not constitute Company Restricted Share Awards for purposes of this Section 1.9(a); such restricted stock units shall be settled for shares of Parent Common Stock and cash in accordance with Section 6(b)(2)(b) of the Company 2008 Directors’ Plan and Section 1.8 of this Agreement.
(b) At the Effective Time, each outstanding option to acquireacquire shares of Company Common Stock from the Company (each, on a “Company Stock Option”) heretofore granted under any Company Stock Plan, whether or not exercisable or vested, shall be, in connection with the Merger, assumed by the Parent. Each Company Stock Option so assumed by the Parent under this Agreement shall continue to have, and be subject to, the same terms and conditions set forth in the Company Stock Plans and as were applicable under provided in the option agreement governing such Company Stock OptionOption immediately prior to the Effective Time, the except that (i) such Company Stock Option shall be exercisable for that number of whole shares of Parent Common Stock equal to the product (rounded down to the nearest whole sharenumber of shares of Parent Common Stock) equal to of (A) the number of shares of Company Common Stock subject to that were issuable (whether or not vested) upon exercise of such Company Stock Option immediately prior to the Effective Time multiplied by and (B) the Exchange Ratio, at an and (ii) the per share exercise price per share for the shares of Parent Common Stock issuable (rounded up to the nearest whole centwhether or not vested) equal to upon exercise of such assumed Company Stock Option shall be determined by (xA) subtracting (I) $0.75 from (II) the exercise price per share of Company Common Stock otherwise purchasable pursuant to at which such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR was exercisable immediately prior to the Effective Time, divided (B) dividing such difference by the Exchange Ratio Ratio, and (each Company SAR, as so adjusted, an "Adjusted SAR");C) rounding the result up to the nearest whole cent.
(iiic) adjust No Person shall have any right under the terms Company Stock Plans or under any other plan, program, agreement or arrangement with respect to equity interests of each the Company or any of its Subsidiaries, or for the issuance or grant of any right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock unitsdividend equivalents), other than Company Stock Options at and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to after the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions (except as were applicable under such Company Stock-Based Award, equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded otherwise expressly set forth in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this Agreement.
(b) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger1.9 or Article II).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except Promptly after the Effective Time and not later than three Business Days after the Closing Date (unless additional time is required to process payments under the Company’s payroll systems), the Surviving Corporation shall pay to each holder of Company Stock Options the cash payments specified in this Section 1.9. The Company’s payroll processor shall be instructed to promptly pay the holders of Company Stock Options the amounts they are entitled to receive hereunder. No interest shall be paid or accrue on the cash payments contemplated by this Section 1.9. The Surviving Corporation and Parent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Company Stock Options any Taxes that either of them is required or permitted to deduct and withhold under applicable Law. To the extent that amounts are so deducted and withheld by the Surviving Corporation or Parent and paid over to the extent required under appropriate taxing authority, the respective terms amounts so deducted and withheld shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Stock Plans Options in respect of which such deduction and Adjusted Optionswithholding was made by the Surviving Corporation or Parent, Adjusted SARs as the case may be, and Adjusted Stock-Based Awardsthe Company’s payroll processor, all restrictions the Surviving Corporation or limitations on transfer and vesting with respect Parent shall provide to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement holders of such securities written notice of the Company amounts so deducted or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05withheld.
(e) As soon as practicable following Prior to the Effective Time, Parent shall prepare and file with the SEC a registration statement on Form S-8 (or another appropriate form) registering a number of shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to the Adjusted Options. The Company shall cooperate withtake all actions required in order to effectuate the provisions of this Section 1.9, and assist Parent including, without limitation, the conversion of each Company Stock Option into the right to receive the amount described in the preparation ofSection 1.9(b). Notwithstanding any other provision of this Section 1.9, payment may be withheld in respect of any employee stock option until such registration statementnecessary consents are obtained.
Appears in 2 contracts
Samples: Merger Agreement (Nashua Corp), Merger Agreement (Nashua Corp)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date Each option to purchase shares of this Agreement, the Board of Directors Company Common Stock (a “Company Stock Option”) granted under an equity compensation plan of the Company (or, if appropriate, any committee thereof administering the a “Company Stock Plans) shall adopt such resolutions or take such other actions as may be required to effect the following:
(i) adjust the terms of all outstanding Company Stock OptionsPlan”), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option that is outstanding immediately prior to the Effective Time shall cease to represent a right to acquire shares of Company Common Stock and shall be amended and converted converted, at the Effective Time, into an option to acquire, purchase shares of Parent Common Stock (a “Parent Stock Option”) on the same terms and conditions (including any option reload features relating to any Company Stock Option outstanding on the date hereof or granted after the date hereof; provided that any hereafter granted Company Stock Option is granted in accordance with Section 6.02(s)) as were applicable under such Company Stock OptionOption (but taking into account any changes thereto, including any acceleration thereof, provided for in the relevant Company Stock Plan, or in the related award document by reason of the transactions contemplated hereby). The number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) the number of shares of Company Common Stock subject to each such Company Parent Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to each such Company SAR immediately prior to the Effective Time Stock Option multiplied by the Exchange Ratio, rounded down, if necessary, to the nearest whole share of Parent Common Stock, and with such Parent Stock Option shall have an appreciation base exercise price per share (rounded up to the nearest one-hundredth of a dollar) equal to the per share exercise price specified in such Company Stock Option divided by the Exchange Ratio; provided, however, that in the case of any Company Stock Option to which Section 421 of the Code applies as of the Effective Time (after taking into account the effect of any accelerated vesting thereof, if applicable) by reason of its qualification under Section 422 of the Code, the exercise price, the number of shares of Parent Common Stock subject to such option and the terms and conditions of exercise of such option and any related stock appreciation base right shall be determined in effect a manner consistent with respect to the corresponding Company SAR immediately prior to requirements of Section 424(a) of the Code.
(b) At the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of of, based on or relating to shares of Company Common Stock granted under a Company Stock Plan (including restricted stock, restricted deferred stock awards, stock units, deferred stock units phantom awards and performance stock unitsdividend equivalents), other than Company Stock Options and Company SARs (each, a "“Company Stock-Based Award"”), to provide thatwhether vested or unvested, at the Effective Time, each Company Stock-Based Award which is outstanding immediately prior to the Effective Time shall be deemed cease to represent a right or award with respect to a number of shares of Company Common Stock and shall be converted, at the Effective Time, into a right or award with respect to Parent Common Stock (a “Parent Stock-Based Award”), on the same terms and conditions as were applicable under such Company Stock-Based AwardAwards (but taking into account any changes thereto, including any acceleration thereof, provided for in the relevant Company Stock Plan or in the related award document by reason of the transactions contemplated hereby). The number of shares of Parent Common Stock subject to each such Parent Stock-Based Award shall be equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, Award multiplied by the Exchange Ratio (Ratio, rounded down if necessary to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes . Any dividend equivalents credited to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board account of Directors each holder of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or a Company Stock-Based Award in connection with or otherwise in respect as of the transactions contemplated by this AgreementEffective Time shall remain credited to such holder’s account immediately following the Effective Time, subject to adjustment in accordance with the foregoing.
(bc) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Company Stock-Based Awards appropriate any required notices setting forth such holders' ’ rights pursuant to the respective relevant Company Stock Plans and agreements evidencing the grants of award documents and stating that such Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Company Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be have been assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards 3.03 after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05terms of the relevant Company Stock Plans).
(ed) Prior to the Effective Time, the Company shall take all necessary action for the adjustment of Company Stock Options and Company Stock-Based Awards under this Section 3.03. 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 subject to Parent Stock Options and Parent Stock-Based Awards as a result of the actions contemplated by this Section 3.03. As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a registration statement on Form S-8 or S-3, as the case may be (or another any successor form, or if Form S-8 or S-3 is not available, other appropriate formforms) registering a number of with respect to the shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to such Parent Stock Options and Parent Stock-Based Awards and shall maintain the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, effectiveness of such registration statementstatement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Parent Stock Options and Parent Stock-Based Awards remain outstanding.
Appears in 2 contracts
Samples: Merger Agreement (St Paul Companies Inc /Mn/), Merger Agreement (St Paul Companies Inc /Mn/)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company (or, if appropriate, any committee thereof administering the Each Company Stock PlansOption (as defined in Section 3.2(b)) that was granted pursuant to Company Stock Option Plans (as defined in Section 3.2(b)), other than the stock units described in Section 1.8(c), prior to the Effective Time (whether or not vested) shall adopt such resolutions or take such other actions as may cease to represent a right to acquire shares of Company Common Stock and shall be required to effect the following:
(i) adjust the terms of all outstanding Company Stock Options, whether vested or unvested, as necessary to provide thatconverted, at the Effective Time, each Company Stock Option outstanding immediately prior into fully vested options (in accordance with the terms of such options) to the Effective Time shall be amended and converted into an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option, the number of purchase shares of Parent Common Stock (rounded down to a "Parent Stock Option"), and the nearest whole share) per share exercise price of such Parent Stock Option shall equal to (A) the number exercise price of shares of Company Common Stock subject to such the corresponding Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a Ratio. The number of shares of Parent Common Stock, on the same terms and conditions as were applicable under Stock subject to each such Company Stock-Based Award, Parent Stock Option shall equal to the number of shares of Company Common Stock to which the corresponding Company Stock Option was subject immediately prior to the Company Stock-Based AwardEffective Time, multiplied by the Exchange Ratio (rounded to the nearest whole share of share). Each such Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or shall otherwise in respect of the transactions contemplated by this Agreement.
(b) As soon as practicable after the Effective Time, Parent shall deliver be subject to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on at the Effective Time, including the expiration date of this Agreement the option, as the related Company Stock Option. At the Effective Time, (subject only 1) all references to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option Company in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Option Plans and Adjusted Options, Adjusted SARs in the stock option agreements evidencing the related Company Stock Options shall be deemed to refer to Parent and Adjusted Stock-Based Awards, (2) Parent shall assume all restrictions or limitations on transfer and vesting of the Company's obligations with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of Options as so converted into Parent Stock Options. Promptly after the Company or any of its SubsidiariesEffective Time, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect necessary to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(e) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a provide for registration statement on Form S-8 (or another appropriate form) registering a number of shares of Parent Common Stock representing subject to such Parent Stock Options, Parent shall file a registration statement on Form S-3 or Form S-8, as the case may be, or any successor form, with respect to such shares of Parent Common Stock and shall use its reasonable best efforts to maintain such registration statement (or any successor form), including the current status of any related prospectus or prospectuses for so long as the Company Stock Options remain outstanding. On or prior to the Effective Time, the Company will take all actions necessary such that grants of Company Stock Options are treated in accordance with the immediately preceding sentences, including, but not limited to, precluding each holder from receiving any cash payments in respect of such grants in connection with the Merger.
(b) Restricted shares of Company Common Stock granted pursuant to The Company Long Term Incentive Plan of 1999 and The Company Long Term Incentive Plan of 1990 which are outstanding immediately prior to the Effective Time shall become fully vested and free of restrictions as of the Effective Time in accordance with the terms thereof. Each such award shall be converted, as of the Effective Time, into a number of shares of Parent Common Stock equal to the product of (1) the number of shares subject to the Adjusted Optionsaward and (2) the Exchange Ratio; and the number of shares of Parent Common Stock as so determined shall be delivered to the holder of each such award as soon as practicable following the Effective Time. The On or prior to the Effective Time, the Company shall cooperate withwill take all actions necessary such that awards of restricted shares are treated in accordance with the immediately preceding sentences, and assist Parent including, but not limited to, precluding each holder from receiving any cash payments in respect of such awards, other than with respect to fractional shares, in connection with the preparation of, such registration statementMerger.
Appears in 2 contracts
Samples: Merger Agreement (Pepsico Inc), Merger Agreement (Quaker Oats Co)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company (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 following:
(i) adjust the terms of all outstanding Company Stock Options, whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be amended and converted into an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option, the number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) the number of All awards granting restricted shares of Company Common Stock subject to such from Company Stock Option immediately prior to the Effective Time multiplied by that have not vested (Bcollectively, "COMPANY RESTRICTED SHARES") the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to heretofore granted under any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (eachPlan shall, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Time, divided by become fully vested and without further restrictions with respect to ownership rights thereto, thereby causing all Company Restricted Shares to become shares of Company Common Stock that are converted into the Exchange Ratio (each Company SAR, right to receive the Merger Consideration as so adjusted, an "Adjusted SAR"provided in SECTION 1.8(a);.
(iiib) adjust the terms of each Each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock unitsdividend equivalents), other than Company Restricted Stock, Company Stock Options and Company SARs or rights to acquire SPP Shares (eachcollectively, a "Company StockCOMPANY STOCK-Based AwardBASED AWARDS"), heretofore granted under any Company Stock Plan shall, immediately prior to provide that, at the Effective Time, become fully vested and without further restrictions with respect to ownership rights thereto, and each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed converted into the right to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, receive an amount equal to (i) the Merger Consideration, multiplied by (ii) the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make which such other changes to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this Agreement.
(b) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger)relates.
(c) A holder All outstanding options to acquire shares of Company Common Stock from Company other than SPP Shares (collectively, "COMPANY STOCK OPTIONS") heretofore granted under any Company Stock Plan, whether or not then exercisable or vested, shall cease to represent, as of the Effective Time, a right to acquire shares of Company Common Stock and shall be converted, in settlement and cancellation thereof, into the right to receive, at the Effective Time, a lump sum cash payment by the Surviving Corporation of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures amount equal to be communicated by Parent with (i) the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax informationexcess, if any, required in accordance with of (A) the applicable per share Merger Consideration over (B) the exercise price per share of Company Common Stock subject to such Company Stock PlanOption, multiplied by (ii) the number of shares of Company Common Stock for which such Company Stock Option shall not theretofore have been exercised.
(d) Except to The Company Stock Plans, including the extent required under the respective terms portion of the Company Stock Employee Benefit Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain described in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(e) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a registration statement on Form S-8 (or another appropriate form) registering a number of shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, such registration statement.SECTION 1.9
Appears in 1 contract
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors Each unexercised option to purchase Company Shares (“Company Stock Options”) granted pursuant to any stock option plans or other equity-related compensation plans of the Company described in Section 3.5(a) (or, if appropriate, any committee thereof administering the “Company Stock Option Plans) shall adopt such resolutions or take such other actions as may be required to effect the following:
(i) adjust the terms of all outstanding Company Stock Options”), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option that is outstanding immediately prior to the Effective Time shall be amended cease to represent a right to acquire Company Shares and converted into an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option, the number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide thatconverted, at the Effective Time, each Company SAR outstanding immediately prior into an option to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of acquire shares of Parent Common Stock, on the same terms and conditions as were applicable under each particular Company Stock Option and in accordance with any changes to such Company Stock-Based Award, equal terms required pursuant to the terms of the Company Stock Option or the Company Stock Option Plans by reason of this Agreement or the transactions contemplated hereby, or as required pursuant to Section 2.2(e) below. The number of shares of Company Parent Common Stock subject to each converted Company Stock Option shall be determined by multiplying the number of Company Stock-Based AwardShares subject to such Company Stock Option immediately prior to the Effective Time by 0.7389 (the “Exchange Ratio”), multiplied by the Exchange Ratio (rounded rounded, if necessary, to the nearest whole share of Parent Common Stock) , and such converted Company Stock Option shall have an exercise price per share (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes rounded to the nearest whole cent) equal to the per share exercise price specified in such Company Stock Plans as Option divided by the Company and Parent may agree are appropriate to give effect to Exchange Ratio; provided, however, that (1) in the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu case of any Company Stock Option to which Section 421 of the Internal Revenue Code of 1986, as amended (the “Code”) applies by reason of its qualification under Section 422 of the Code, or (2) to the extent required under Section 409A of the Code and applicable Treasury Department guidance thereunder to prevent the converted Company Stock-Based Award Stock Option from being treated as the grant of a new stock option, the option price, the number of shares subject to such option and the terms and conditions of exercise of such option shall be determined in a manner consistent with the requirements of Section 424(a) of the Code and, as applicable, the requirements of Section 409A of the Code. On or prior to the Effective Time, the Company will take all necessary actions for the adjustment of Company Stock Options pursuant to this Section 2.2(a), including, but not limited to, precluding the holder of each Company Stock Option from receiving any cash payments in respect of such Company Stock Options in connection with or otherwise in respect of the transactions contemplated by this AgreementMerger.
(b) At the Effective Time, Parent shall assume each Company Stock Option Plan and each Company Stock Option in accordance with the terms of the Company Stock Option Plan under which it was issued and the stock option agreement by which it is evidenced. As soon as practicable after the Effective Time, but no later than two (2) Business Days, after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate Company Stock Options written notices setting forth confirming each such holders' ’ rights pursuant to the respective Company Stock Option Plans and the number of shares of Parent Common Stock to which each holder is entitled and the exercise price thereof, but in all other respects the agreements evidencing the grants of such Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Stock-Based Awards the remaining terms and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and conditions shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only existed prior to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part Effective Time and in accordance with its any changes to such terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except pursuant to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions Option or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Option Plans by reason of this Agreement or any other planthe transactions contemplated hereby, program or arrangement of the Company or any of its Subsidiaries, as required pursuant to Section 2.2(d) below. Back to Contents
(c) Prior to the extent that such restrictions or limitations shall not have already lapsedClosing, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(ei) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC take all corporate action necessary to reserve for issuance a registration statement on Form S-8 (or another appropriate form) registering a sufficient number of shares of Parent Common Stock representing for delivery upon exercise of Company Stock Options, and (ii) the number Company shall take all corporate action, if any, necessary for the Company to (A) have its transfer agent record that all Restricted Company Shares are non-forfeitable and fully transferable at the Effective Time and (B) provide for full vesting and payment at the Effective Time of lump sum cash payments to the holders of performance grants issued under the Company’s 2005 Stock Incentive Plan (the “2005 Plan”) set forth in Section 3.5(b) of the Company Disclosure Schedule, as required by the terms of such performance grants. Promptly after the Effective Time, but no later than two (2) Business Days after the Effective Time, Parent shall file a registration statement on Form S-3 or Form S-8, as the case may be (or any successor or other appropriate forms), with respect to the shares of Parent Common Stock equal subject to such Company Stock Options, and Parent shall 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 Options remain outstanding or for so long as such registration statement is required with respect thereto. With respect to those individuals who subsequent to the number of shares Merger will be subject to the Adjusted Optionsreporting requirements under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), where applicable, Parent shall administer the Company Stock Option Plans in a manner consistent with the exemptions provided by Rule 16b-3 promulgated under the Exchange Act.
(d) Each unexercised Company Stock Option, whether vested or unvested, that is held by any executive officer of the Company immediately prior to the Effective Time shall remain exercisable (without regard to whether termination of the executive’s employment would have provided for a shorter exercise period following such termination of employment) until the last date on which exercise would be permitted without causing the Company Stock Option to be treated as modified for purposes of Section 409A of the Code and Treasury Department guidance issued thereunder. The Company shall cooperate with, and assist Parent in the preparation of, such registration statement.Back to Contents
Appears in 1 contract
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following Each option to purchase shares of Company Common Stock (a "Company Stock Option") granted under the date of this Agreement, the Board of Directors employee and director stock plans of the Company (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 following:
(i) adjust the terms of all outstanding Company Stock Options"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option that is outstanding immediately prior to the Effective Time shall, at the Effective Time, cease to represent a right to acquire shares of Company Common Stock and shall be amended and converted converted, at the Effective Time, into an option to acquire, purchase shares of Parent Common Stock (a "Parent Stock Option") on the same terms and conditions as were applicable under such Company Stock Option, the . The number of shares of Parent Common Stock (rounded down subject to the nearest whole share) equal to (A) each such Parent Stock Option shall be the number of shares of Company Common Stock subject to each such Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at rounded, if necessary, to the nearest whole share of Parent Common Stock, and such Parent Stock Option shall have an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the per share exercise price per share of Company Common Stock otherwise purchasable pursuant to specified in such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option")Ratio; provided, that however, that, in the adjustments provided in this Section 5.05 with respect to case of any Company Stock Option to which Section 421(a) 421 of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation rightby reason of its qualification under Section 422 of the Code, on the same terms and conditions as were applicable under such Company SARexercise price, with respect to a the number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to option and the Effective Time multiplied by terms and conditions of exercise of such option shall be determined in a manner consistent with the Exchange Ratio, and with an appreciation base equal to requirements of Section 424(a) of the appreciation base in effect with respect to the corresponding Company SAR immediately prior to Code.
(b) At the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock, granted under the Company Stock Plans (including restricted stock, restricted stock units, deferred stock units and performance stock unitsdividend equivalents), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide thatwhether vested or unvested, at the Effective Time, each Company Stock-Based Award which is outstanding immediately prior to the Effective Time shall be deemed cease to represent a right or award with respect to a number of shares of Company Common Stock and shall be converted, at the Effective Time, into a right or award with respect to Parent Common Stock (a "Parent Stock-Based Award"), on the same terms and conditions as were applicable under such the Company Stock-Based Award, Awards. The number of shares of Parent Common Stock subject to each such Parent Stock-Based Award shall be equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded Ratio, rounded, if necessary, to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes . All dividend equivalents credited to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board account of Directors each holder of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or a Company Stock-Based Award in connection with or otherwise in respect as of the transactions contemplated by this AgreementEffective Time shall remain credited to such holder's account immediately following the Effective Time, subject to adjustment in accordance with the foregoing.
(bc) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Company Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs Company Stock Options and Adjusted the Company Stock-Based Awards Awards, and stating that such Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Company Stock-Based Awards and agreements shall be have been assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards 3.3 after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05terms of the Company Stock Plans).
(ed) Prior to the Effective Time, the Company shall take all necessary action for the adjustment of the Company Stock Options and the Company Stock-Based Awards under this Section 3.3. 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 subject to Parent Stock Options and Parent Stock-Based Awards as a result of the actions contemplated by this Section 3.3. As soon as practicable following the Effective Time (and in any event not later than two Business Days following the Effective Time), Parent shall prepare and file with the SEC a registration statement on Form S-8 (or another any successor form, or if Form S-8 is not available, other appropriate formforms) registering a number of with respect to the shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to such Parent Stock Options and Parent Stock-Based Awards and shall maintain the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, effectiveness of such registration statementstatement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Parent Stock Options or Parent Stock- Based Awards remain outstanding.
Appears in 1 contract
Samples: Merger Agreement (Usa Interactive)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company (or, if appropriate, any committee thereof administering the Company Stock Plans) shall adopt such resolutions or take such other actions (if any) as may be required to effect the following:
provide that (i) adjust the terms of all outstanding each Company Stock OptionsOption, whether vested or unvested, as necessary shall be canceled effective immediately after the earlier of the Specified Date if upon closing of the Offer Rexam owns directly or indirectly at least 80% of the Company Common Stock and the Effective Time, with the holder thereof becoming entitled to provide thatreceive an amount of cash equal to the product of (x) the excess, if any, of (A) the Merger Consideration over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (y) the number of shares of Company Common Stock issuable pursuant to the unexercised portion of such Company Stock Option less any tax withholding required by the Code or any provision of state or local law and (ii) at the earlier of the Specified Date if upon closing of the Offer Rexam owns directly or indirectly at least 80% of the Company Common Stock and the Effective Time, each deferred stock unit, conversion share, restricted stock obligation and performance share under the Stock Compensation Conversion Plan, Directors' Stock Plan, Directors' Pension Conversion Plan and 1999 Long-Term Stock Incentive Plan (collectively, the "STOCK AWARDS") shall fully vest and become immediately payable or distributable and immediately following the earlier of the Specified Date if upon closing of the Offer Rexam owns directly or indirectly at least 80% of the Company Common Stock Option outstanding immediately prior and the Effective Time, each Stock Award shall be canceled and the holder thereof shall be entitled to receive an amount in cash equal to the Effective Time shall be amended and converted into an option to acquireproduct of (x) the Merger Consideration, on the same terms and conditions as were applicable under such Company Stock Option, the number of shares of Parent Common Stock multiplied by (rounded down to the nearest whole share) equal to (Ay) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior Award, less any tax withholding required under the Code or any provision of state or local law. All amounts payable pursuant to this Section 5.04 shall be paid no later than two business days following the Effective Time multiplied by (B) earlier of the Exchange Ratio, Specified Date if upon closing of the Offer Rexam owns directly or indirectly at an exercise price per share least 80% of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each .
(b) The Company SAR outstanding immediately prior shall use its reasonable efforts to take all actions determined to be necessary to effectuate the Effective Time shall be amended foregoing as mutually agreed by Rexam and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior Company.
(c) Prior to the Effective Time, divided by the Exchange Ratio Company Board of Directors (each Company SARor, as so adjustedif appropriate, an "Adjusted SAR");
(iii) adjust any committee administering the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Plans) shall take or cause to be taken such actions as are required to cause (x) the Company SARs (each, a "Company Stock-Based Award"), Stock Plans to provide that, at terminate as of the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, equal to the number of shares of Company Common Stock subject to the prior satisfaction of all obligations thereunder and (y) the provisions in any other Company Stock-Based AwardBenefit Plan providing for the issuance, multiplied by the Exchange Ratio (rounded to the nearest whole share transfer or grant of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors any capital stock of the Company or any committee thereof interest on or other person administering following the Company Stock Plans shall ensure that no Company SARs shall be awarded Effective Time in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect capital stock of the transactions contemplated by this Agreement.
(b) As soon Company to be deleted as practicable after of the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(e) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a registration statement on Form S-8 (or another appropriate form) registering a number of shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, such registration statement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rexam Acquisition Subsidiary Inc)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following Not later than immediately prior to the date of this AgreementEffective Time, Company shall cause the Board of Directors of the Company (or, if appropriate, or any committee thereof administering the Company Stock Plans) shall Plans to adopt such resolutions or all resolutions, take such other all actions as may be required and obtain all consents necessary to effect the followingprovide that:
(ia) adjust the terms of all outstanding Company Stock OptionsOptions heretofore granted under Company’s 1992 Stock Option Plan or any other stock option or similar plans, agreements or arrangements of Company including any related award agreements (collectively, the “Company Stock Plans”), whether vested or unvestednot then exercisable or vested, shall cease to represent, as necessary of the Effective Time, a right to provide thatacquire shares of Company Common Stock and shall be converted, in settlement and cancellation thereof, into the right to receive, at the Effective Time, each Company Stock Option outstanding immediately prior to a lump sum cash payment by the Effective Time shall be amended and converted into Surviving Corporation of an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option, the number of shares of Parent Common Stock (rounded down to the nearest whole share) amount equal to (i) the excess, if any, of (A) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by per share Merger Consideration over (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant subject to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
multiplied by (ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to for which such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR")Stock Option shall not theretofore have been exercised;
(iiib) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect terminate, and all rights under any provision of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this Agreement.
(b) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement providing for the issuance or grant of any other interest with respect to the capital stock or other equity interests of Company or any of its SubsidiariesSubsidiaries shall be canceled, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent effective as set forth in this Section 5.05.
(e) As soon as practicable following of the Effective Time, Parent without any liability on the part of Company or any of its Subsidiaries (except as otherwise expressly provided in this Agreement); and
(c) no Person shall prepare have any right under the Company Stock Plans or under any other plan, program, agreement or arrangement with respect to equity interests of Company or any of its Subsidiaries (except as otherwise expressly provided in this Agreement) at and file after the Effective Time. Reasonably promptly after the Effective Time, the Surviving Corporation shall pay the holders of Company Stock Options the cash payments specified in this Section 1.9. No interest shall be paid or accrue on such cash payments. To the extent the Surviving Corporation or Purchaser is required or entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Company Stock Options with the SEC a registration statement on Form S-8 (or another appropriate form) registering a number of shares of Parent Common Stock representing the number of shares of Parent Common Stock equal respect to the number making of shares subject such payment under the Internal Revenue Code of 1986, as amended (collectively, the “Code”), or any provision of any other Tax Law, the amounts so withheld and paid over to the Adjusted Optionsappropriate taxing authority by the Surviving Corporation or Purchaser, as the case may be, shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Stock Options in respect of which such deduction and withholding was made by the Surviving Corporation or Purchaser, as the case may be. The Company shall cooperate withwith Purchaser, and assist Parent keep Purchaser fully informed, with respect to all resolutions, actions and consents that Company intends to adopt, take and obtain in connection with the preparation ofmatters described in this Section 1.9. Without limitation, Company shall provide Purchaser with a reasonable opportunity to review and comment on all such registration statementresolutions and consents.
Appears in 1 contract
Samples: Merger Agreement (Oilgear Co)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following Each option to purchase shares of Company Common Stock (a “Company Stock Option”) granted under the date of this Agreement, the Board of Directors employee and director stock plans of the Company (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 following:
(i) adjust the terms of all outstanding Company Stock Options”), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option that is outstanding immediately prior to the Effective Time shall, at the Effective Time, cease to represent a right to acquire shares of Company Common Stock and shall be amended and converted converted, at the Effective Time, into an option to acquire, purchase shares of Parent Common Stock (a “Parent Stock Option”) on the same terms and conditions as were applicable under such Company Stock Option, the . The number of shares of Parent Common Stock (rounded down subject to the nearest whole share) equal to (A) each such Parent Stock Option shall be the number of shares of Company Common Stock subject to each such Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at rounded, if necessary, to the nearest whole share of Parent Common Stock, and such Parent Stock Option shall have an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the per share exercise price per share of Company Common Stock otherwise purchasable pursuant to specified in such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option")Ratio; provided, that however, that, in the adjustments provided in this Section 5.05 with respect to case of any Company Stock Option to which Section 421(a) 421 of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation rightby reason of its qualification under Section 422 of the Code, on the same terms and conditions as were applicable under such Company SARexercise price, with respect to a the number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to option and the Effective Time multiplied by terms and conditions of exercise of such option shall be determined in a manner consistent with the Exchange Ratio, and with an appreciation base equal to requirements of Section 424(a) of the appreciation base in effect with respect to the corresponding Company SAR immediately prior to Code.
(b) At the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock, granted under the Company Stock Plans (including restricted stock, restricted stock units, deferred stock units and performance stock unitsdividend equivalents), other than Company Stock Options and Company SARs (each, a "“Company Stock-Based Award"”), to provide thatwhether vested or unvested, at the Effective Time, each Company Stock-Based Award which is outstanding immediately prior to the Effective Time shall be deemed cease to represent a right or award with respect to a number of shares of Company Common Stock and shall be converted, at the Effective Time, into a right or award with respect to Parent Common Stock (a “Parent Stock-Based Award”), on the same terms and conditions as were applicable under such the Company Stock-Based Award, Awards. The number of shares of Parent Common Stock subject to each such Parent Stock-Based Award shall be equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded Ratio, rounded, if necessary, to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes . All dividend equivalents credited to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board account of Directors each holder of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or a Company Stock-Based Award in connection with or otherwise in respect as of the transactions contemplated by this AgreementEffective Time shall remain credited to such holder’s account immediately following the Effective Time, subject to adjustment in accordance with the foregoing.
(bc) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Company Stock-Based Awards appropriate notices setting forth such holders' ’ rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs Company Stock Options and Adjusted the Company Stock-Based Awards Awards, and stating that such Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Company Stock-Based Awards and agreements shall be have been assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards 3.3 after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05terms of the Company Stock Plans).
(ed) Prior to the Effective Time, the Company shall take all necessary action for the adjustment of the Company Stock Options and the Company Stock-Based Awards under this Section 3.3. 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 subject to Parent Stock Options and Parent Stock-Based Awards as a result of the actions contemplated by this Section 3.3. As soon as practicable following the Effective Time (and in any event not later than two Business Days following the Effective Time), Parent shall prepare and file with the SEC a registration statement on Form S-8 (or another any successor form, or if Form S-8 is not available, other appropriate formforms) registering a number of with respect to the shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to such Parent Stock Options and Parent Stock-Based Awards and shall maintain the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, effectiveness of such registration statementstatement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Parent Stock Options or Parent Stock-Based Awards remain outstanding.
Appears in 1 contract
Samples: Merger Agreement (Expedia Inc)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date Each option to purchase shares of this Agreement, the Board of Directors Company Common Stock (a "COMPANY STOCK OPTION") granted under an equity compensation plan of the Company (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 following:
(i) adjust the terms of all outstanding Company Stock Optionsa "COMPANY STOCK PLAN"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option that is outstanding immediately prior to the Effective Time shall cease to represent a right to acquire shares of Company Common Stock and shall be amended and converted converted, at the Effective Time, into an option to acquire, purchase shares of Parent Common Stock (a "PARENT STOCK OPTION") on the same terms and conditions (including any option reload features relating to any Company Stock Option outstanding on the date hereof or granted after the date hereof; provided that any hereafter granted Company Stock Option is granted in accordance with Section 6.02(s)) as were applicable under such Company Stock OptionOption (but taking into account any changes thereto, including any acceleration thereof, provided for in the relevant Company Stock Plan, or in the related award document by reason of the transactions contemplated hereby). The number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) the number of shares of Company Common Stock subject to each such Company Parent Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to each such Company SAR immediately prior to the Effective Time Stock Option multiplied by the Exchange Ratio, rounded down, if necessary, to the nearest whole share of Parent Common Stock, and with such Parent Stock Option shall have an appreciation base exercise price per share (rounded up to the nearest one-hundredth of a dollar) equal to the per share exercise price specified in such Company Stock Option divided by the Exchange Ratio; provided, however, that in the case of any Company Stock Option to which Section 421 of the Code applies as of the Effective Time (after taking into account the effect of any accelerated vesting thereof, if applicable) by reason of its qualification under Section 422 of the Code, the exercise price, the number of shares of Parent Common Stock subject to such option and the terms and conditions of exercise of such option and any related stock appreciation base right shall be determined in effect a manner consistent with respect to the corresponding Company SAR immediately prior to requirements of Section 424(a) of the Code.
(b) At the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of of, based on or relating to shares of Company Common Stock granted under a Company Stock Plan (including restricted stock, restricted deferred stock awards, stock units, deferred stock units phantom awards and performance stock unitsdividend equivalents), other than Company Stock Options and Company SARs (each, a "Company StockCOMPANY STOCK-Based AwardBASED AWARD"), to provide thatwhether vested or unvested, at the Effective Time, each Company Stock-Based Award which is outstanding immediately prior to the Effective Time shall be deemed cease to represent a right or award with respect to a number of shares of Company Common Stock and shall be converted, at the Effective Time, into a right or award with respect to Parent Common StockStock (a "PARENT STOCK-BASED AWARD"), on the same terms and conditions as were applicable under such Company Stock-Based AwardAwards (but taking into account any changes thereto, including any acceleration thereof, provided for in the relevant Company Stock Plan or in the related award document by reason of the transactions contemplated hereby). The number of shares of Parent Common Stock subject to each such Parent Stock-Based Award shall be equal to the number of shares of Company Common Stock subject to the Company Stock-Based Award, Award multiplied by the Exchange Ratio (Ratio, rounded down if necessary to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes . Any dividend equivalents credited to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board account of Directors each holder of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or a Company Stock-Based Award in connection with or otherwise in respect as of the transactions contemplated by this AgreementEffective Time shall remain credited to such holder's account immediately following the Effective Time, subject to adjustment in accordance with the foregoing.
(bc) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Company Stock-Based Awards appropriate any required notices setting forth such holders' rights pursuant to the respective relevant Company Stock Plans and agreements evidencing the grants of award documents and stating that such Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Company Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be have been assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards 3.03 after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05terms of the relevant Company Stock Plans).
(ed) Prior to the Effective Time, the Company shall take all necessary action for the adjustment of Company Stock Options and Company Stock-Based Awards under this Section 3.03. 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 subject to Parent Stock Options and Parent Stock-Based Awards as a result of the actions contemplated by this Section 3.03. As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a registration statement on Form S-8 or S-3, as the case may be (or another any successor form, or if Form S-8 or S-3 is not available, other appropriate formforms) registering a number of with respect to the shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to such Parent Stock Options and Parent Stock-Based Awards and shall maintain the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, effectiveness of such registration statementstatement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Parent Stock Options and Parent Stock-Based Awards remain outstanding.
Appears in 1 contract
Samples: Merger Agreement (Travelers Property Casualty Corp)
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following Not later than immediately prior to the date of this AgreementEffective Time, Company shall cause the Board of Directors of the Company (or, if appropriate, or any committee thereof administering the Company Stock Plans) shall Plans to adopt such resolutions or all resolutions, take such other all actions as may be required and obtain all consents necessary to effect the followingprovide that:
(ia) adjust Subject to the terms of the Company Stock Plans (as defined below), all outstanding Company Stock OptionsOptions heretofore granted under Company’s 2003 Stock Plan, Company's 2008 Stock Plan or any other stock option or similar plans, agreements or arrangements of Company, including any related award agreements (collectively, the "Company Stock Plans"), whether or not then exercisable or vested, shall immediately become vested and exercisable as of the date this Agreement is signed and option holders shall be provided with the opportunity to exercise all vested and exercisable options prior to the Effective Time. Unexercised options shall expire at the Effective Time. If an option holder chooses to exercise her, his or unvestedits options prior to the Effective Time, as necessary the option holder's option shall be converted, in settlement and cancellation thereof, into the right to provide thatreceive, at the Effective Time, each Company Stock Option outstanding immediately prior to a lump sum cash payment by the Effective Time shall be amended and converted into Surviving Corporation of an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option, the number of shares of Parent Common Stock (rounded down to the nearest whole share) amount equal to (i) the excess, if any of (A) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by per share Merger Consideration over (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant subject to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
multiplied by (ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to for which such Company SAR immediately prior Stock Option shall not theretofore have been exercised. If an option holder chooses to the Effective Time multiplied by the Exchange Ratioexercise her, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent his or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than its Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at but receives no payment because the Effective Time, each Company Stock-Based Award outstanding immediately prior to per share Merger Consideration does not exceed the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, equal to the number of shares exercise price per share of Company Common Stock subject to such Company Stock Options, such Company Stock Options shall not be assumed or substituted for by Purchaser and will terminate at the Effective Time. Promptly after the date of this Agreement, Company Stock-Based Award, multiplied by shall deliver written notice to each holder of a Company Stock Option informing such holder of the Exchange Ratio (rounded to effect of the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes to Merger on the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this Agreement.Options;
(b) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or Options issued thereunder 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 with respect to the capital stock or other equity interests of Company or any of its SubsidiariesSubsidiaries shall be canceled, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent effective as set forth in this Section 5.05.
(e) As soon as practicable following of the Effective Time, Parent without any liability on the part of Company or any of its Subsidiaries (except as otherwise expressly provided in this Agreement); and
(c) no Person shall prepare have any right under the Company Stock Plans or under any other plan, program, agreement or arrangement with respect to equity interests of Company or any of its Subsidiaries (except as otherwise expressly provided in this Agreement) at and file after the Effective Time. Reasonably promptly after the Effective Time, the Surviving Corporation shall pay the holders of Company Stock Options the cash payments specified in this Section 1.9, if any. No interest shall be paid or accrue on such cash payments. To the extent the Surviving Corporation or Purchaser is required or entitled to deduct and withhold any amount from the consideration otherwise payable pursuant to this Agreement to any holder of Company Stock Options with the SEC a registration statement on Form S-8 (or another appropriate form) registering a number of shares of Parent Common Stock representing the number of shares of Parent Common Stock equal respect to the number making of shares subject such payment under the Internal Revenue Code of 1986, as amended (collectively, the "Code"), or any provision of any other Tax Law, the amounts so withheld and paid over to the Adjusted Optionsappropriate taxing authority by the Surviving Corporation or Purchaser, as the case may be, shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Stock Options in respect of which such deduction and withholding was made by the Surviving Corporation or Purchaser, as the case may be. The Company shall cooperate withwith Purchaser, and assist Parent keep Purchaser fully informed, with respect to all resolutions, actions and consents that Company intends to adopt, take and obtain in connection with the preparation ofmatters described in this Section 1.9. Without limitation, Company shall provide Purchaser with a reasonable opportunity to review and comment on all such registration statementresolutions and consents.
Appears in 1 contract
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company (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 following:
(i) adjust the terms of all outstanding Company Stock Options, whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be amended and converted into an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option, the number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) the number of All awards granting restricted shares of Company Common Stock subject to such from Company Stock Option immediately prior to the Effective Time multiplied by that have not vested (Bcollectively, “Company Restricted Shares”) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to heretofore granted under any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (eachPlan shall, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company SAR outstanding immediately prior to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Time, divided by become fully vested and without further restrictions with respect to ownership rights thereto, thereby causing all Company Restricted Shares to become shares of Company Common Stock that are converted into the Exchange Ratio (each Company SAR, right to receive the Merger Consideration as so adjusted, an "Adjusted SAR"provided in Section 1.8(a);.
(iiib) adjust the terms of each Each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock (including restricted stock units, deferred stock units and dividend equivalents), other than Company Restricted Stock, Company Stock Options or rights to acquire SPP Shares (collectively, “Company Stock-Based Awards”), heretofore granted under any Company Stock Plan shall, immediately prior to the Effective Time, become fully vested and without further restrictions with respect to ownership rights thereto, and each award Company Stock-Based Award shall be converted into the right to receive an amount equal to (i) the Merger Consideration, multiplied by (ii) the number of shares of Company Common Stock to which such Company Stock-Based Award relates.
(c) All outstanding options to acquire shares of Company Common Stock from Company other than SPP Shares (collectively, “Company Stock Options) heretofore granted under any Company Stock Plan, whether or not then exercisable or vested, shall cease to represent, as of the Effective Time, a right to acquire shares of Company Common Stock and shall be converted, in settlement and cancellation thereof, into the right to receive, at the Effective Time, a lump sum cash payment by the Surviving Corporation of an amount equal to (i) the excess, if any, of (A) the per share Merger Consideration over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the number of shares of Company Common Stock for which such Company Stock Option shall not theretofore have been exercised.
(d) The Company Stock Plans, including the portion of the Employee Benefit Plans described in Section 1.9(b) that provide for the grant of Company Stock-Based Awards, shall terminate, and all rights under any provision of any kind consisting other plan, program or arrangement providing for the issuance or grant of any other interest with respect to the capital stock or other equity interests of Company or any of its Subsidiaries, or for the issuance or grant of any right of any kind, contingent or accrued, to receive benefits measured by the value of a number of shares of Company Common Stock (including restricted stockstock units, deferred stock units and dividend equivalents), shall be canceled, effective as of the Effective Time, without any liability on the part of Company or any of its Subsidiaries (except as otherwise expressly provided in this Agreement).
(e) No Person shall have any right under the Company Stock Plans, including the Employee Benefit Plans described in Section 1.9(b), or under any other plan, program, agreement or arrangement with respect to equity interests of Company or any of its Subsidiaries, or for the issuance or grant of any right of any kind, contingent or accrued, to receive benefits measured by the value of a number of shares of Company Common Stock (including restricted stock units, deferred stock units and performance stock unitsdividend equivalents, at and after the Effective Time (except as otherwise expressly set forth in this Section 1.9 or Article 2).
(f) Subject to any deferral election with respect to Company Stock-Based Awards then in effect, other reasonably promptly, and in no event later than 48 hours, after the Effective Time, the Surviving Corporation shall pay to each holder of Company Stock Options and Company SARs (each, a "Stock-Based Awards that consents to the treatment that this Section 1.9 contemplates in respect of all of such holder’s Company Stock Options and Company Stock-Based Award"Awards the cash payments specified in this Section 1.9. No interest shall be paid or accrue on the cash payments contemplated by this Section 1.9, provided that the cash proceeds payable with respect to any Company-Stock Based Awards subject to deferral elections shall be deemed invested for the applicable deferral period in hypothetical investments selected by the holders of such Company Stock-Based Awards, which shall be those offered to similarly situated employees of Parent under Parent’s Executive Deferred Compensation Plan. To the extent the Surviving Corporation or Parent is required or entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Company Stock Options or Company Stock-Based Awards with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (collectively, the “Code”), or any provision of any other Tax Law, the amounts so withheld and paid over to provide thatthe appropriate taxing authority by the Surviving Corporation or Parent, at as the case may be, shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Stock Options or Company Stock-Based Awards in respect of which such deduction and withholding was made by the Surviving Corporation or Parent, as the case may be.
(g) At the Effective Time, the Company’s 1992 Employee Stock Purchase Plan (the “Stock Purchase Plan”) shall terminate. In connection with such termination, the Exercise Date (as defined in the Stock Purchase Plan) shall be deemed to be the date that is one day prior to the Effective Time, as a result of which each Company Stock-Based Award outstanding immediately participant therein shall be entitled to receive prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms whole and conditions as were applicable under such Company Stock-Based Award, equal to the number of fractional shares of Company Common Stock subject calculated pursuant to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors Section 7 of the Stock Purchase Plan (the “SPP Shares”) and Company or any committee thereof or other person administering shall retain accumulated payroll deductions, thereby causing all such SPP Shares to become shares of Company Common Stock that are converted into the Company Stock Plans shall ensure that no Company SARs shall be awarded right to receive the Merger Consideration as provided in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this Agreement.
(b) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger1.8(a).
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(e) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC a registration statement on Form S-8 (or another appropriate form) registering a number of shares of Parent Common Stock representing the number of shares of Parent Common Stock equal to the number of shares subject to the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, such registration statement.
Appears in 1 contract
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company (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 following:
(i) adjust the terms of all outstanding Company Stock Options, whether vested or unvested, as necessary to provide that, at the Effective Time, each Each Company Stock Option (as defined in Section 3.2(b)) that remains outstanding immediately prior to the Effective Time (other than any such Company Stock Option that, in accordance with the terms thereof is to be converted into a right to receive a cash payment from the Company) shall cease to represent a right to acquire shares of Company Common Stock and shall be amended and converted converted, at the Effective Time, into an option to acquire, on the same terms and conditions as were applicable under to such Company Stock OptionOption (but taking into account any changes thereto provided for in the applicable Company Stock Incentive Plan (as defined in Section 3.2(b)(ii)), any applicable employment agreement (including change in control agreements or provisions) or in such option by reason of this Agreement or the transactions contemplated hereby), that number of shares of Parent Riverwood Common Stock (rounded down to the nearest whole share) equal to (A) determined by multiplying the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up rounded, if necessary, to the nearest whole share of Riverwood Common Stock, at a price per share (rounded to the nearest one-hundredth of a cent) equal to (x) the per share exercise price per share of Company Common Stock otherwise purchasable pursuant to specified in such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option")Ratio; provided, provided that in the adjustments provided in this Section 5.05 with respect to case of any Company Stock Option to which Section 421(a) 421 of the Code applies by reason of its qualification under Section 422 of the Code, the option price, the number of shares subject to such option and the terms and conditions of exercise of such option shall be and are intended to be effected determined in a manner which is consistent with the requirements of Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect . On or prior to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide that, at the Effective Time, each the Company SAR will take all actions necessary such that all Company Stock Options outstanding prior to the Effective Time under the Company Stock Incentive Plans are treated in accordance with the immediately preceding sentences.
(b) Each restricted share of Company Common Stock granted pursuant to a Company Stock Incentive Plan that remains outstanding immediately prior to the Effective Time shall be amended and converted converted, as of the Effective Time, into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Riverwood Common Stock equal to the product of (i) the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by award and (ii) the Exchange Ratio, ; and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of shares of Parent Common Stock, on the same terms and conditions as were applicable under such Company Stock-Based Award, equal to the number of shares of Company Riverwood Common Stock subject as so determined shall be delivered to the Company Stock-Based Award, multiplied by the Exchange Ratio (rounded to the nearest whole share of Parent Common Stock) (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes to the Company Stock Plans as the Company and Parent may agree are appropriate to give effect to the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu of any Company Stock Option or Company Stock-Based Award in connection with or otherwise in respect of the transactions contemplated by this Agreement.
(b) As soon as practicable after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and shall continue in effect on the same terms and conditions as are in effect on the date of this Agreement (subject only to the adjustments required by this Section 5.05 after giving effect to the Merger).
(c) A holder of an Adjusted Option may exercise each such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except to the extent required under the respective terms of the Company Stock Plans and Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent award as set forth in this Section 5.05.
(e) As soon as practicable following the Effective Time. Such converted awards shall otherwise be subject to the same terms, Parent conditions and, except as may otherwise have been agreed to by the Company and the holder thereof, restrictions, if any, as were applicable to such awards under the relevant Company Stock Incentive Plan (but taking into account any changes thereto provided for in the applicable Company Stock Incentive Plan by reason of this Agreement or the transactions contemplated hereby). Notwithstanding the foregoing, with respect to any such restricted shares of the Company Common Stock held by (i) the executives of the Company listed on Schedule 3.2(q) of the Company Disclosure Schedule (other than those listed in Exhibit 1(c) of the Merger Agreement), such restricted shares shall prepare be fully vested as of the Effective Time, and file (ii) the executives of the Company listed on Exhibit 1(c) hereto, such restricted shares shall be converted into restricted stock units of Riverwood in accordance with the SEC terms of the New Employment Agreements.
(c) Prior to the Closing, Riverwood shall take all corporate action necessary to reserve for issuance a registration statement on Form S-8 (or another appropriate form) registering a sufficient number of shares of Parent Riverwood Common Stock representing for delivery upon exercise of Company Stock Options or in connection with restricted shares or in connection with the number settlement of stock accounts in accordance with this Section 1.9 or in connection with any other Company Benefit Plan (as defined in Section 8.11) for which shares of Parent Riverwood Common Stock equal are required to be reserved for issuance.
(d) At the Effective Time, the Surviving Company shall promptly pay all cash severance, excise taxes and gross-up payments and provide the other benefits and perform the other obligations under the employment agreements listed on Schedule 3.2(q) of the Company Disclosure Schedule to which the Company is a party with respect to the number of shares subject to individuals listed on such Schedule whose employment terminates upon the Adjusted Options. The Company shall cooperate with, and assist Parent in the preparation of, such registration statementEffective Time.
Appears in 1 contract
Company Stock Options and Other Equity-Based Awards. (a) As soon as practicable following the date of this Agreement, the Board of Directors Each unexercised option to purchase Company Shares (“Company Stock Options”) granted pursuant to any stock option plans or other equity-related compensation plans of the Company described in Section 3.5(a) (or, if appropriate, any committee thereof administering the “Company Stock Option Plans) shall adopt such resolutions or take such other actions as may be required to effect the following:
(i) adjust the terms of all outstanding Company Stock Options”), whether vested or unvested, as necessary to provide that, at the Effective Time, each Company Stock Option that is outstanding immediately prior to the Effective Time shall be amended cease to represent a right to acquire Company Shares and converted into an option to acquire, on the same terms and conditions as were applicable under such Company Stock Option, the number of shares of Parent Common Stock (rounded down to the nearest whole share) equal to (A) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (B) the Exchange Ratio, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock otherwise purchasable pursuant to such Company Stock Option immediately prior to the Effective Time divided by (y) the Exchange Ratio (each Company Stock Option, as so adjusted, an "Adjusted Option"); provided, that the adjustments provided in this Section 5.05 with respect to any Company Stock Option to which Section 421(a) of the Code applies shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code;
(ii) adjust the terms of all outstanding stock appreciation rights with respect to Company Common Stock (each, a "Company SAR"), whether vested or unvested, as necessary to provide thatconverted, at the Effective Time, each Company SAR outstanding immediately prior into an option to the Effective Time shall be amended and converted into a stock appreciation right, on the same terms and conditions as were applicable under such Company SAR, with respect to a number of shares of Parent Common Stock equal to the number of shares of Company Common Stock subject to such Company SAR immediately prior to the Effective Time multiplied by the Exchange Ratio, and with an appreciation base equal to the appreciation base in effect with respect to the corresponding Company SAR immediately prior to the Effective Time, divided by the Exchange Ratio (each Company SAR, as so adjusted, an "Adjusted SAR");
(iii) adjust the terms of each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured by the value of a number of shares of Company Common Stock, and each award of any kind consisting of shares of Company Common Stock (including restricted stock, restricted stock units, deferred stock units and performance stock units), other than Company Stock Options and Company SARs (each, a "Company Stock-Based Award"), to provide that, at the Effective Time, each Company Stock-Based Award outstanding immediately prior to the Effective Time shall be deemed to represent a right or award with respect to a number of acquire shares of Parent Common Stock, on the same terms and conditions as were applicable under each particular Company Stock Option and in accordance with any changes to such Company Stock-Based Award, equal terms required pursuant to the terms of the Company Stock Option or the Company Stock Option Plans by reason of this Agreement or the transactions contemplated hereby, or as required pursuant to Section 2.2(e) below. The number of shares of Company Parent Common Stock subject to each converted Company Stock Option shall be determined by multiplying the number of Company Stock-Based AwardShares subject to such Company Stock Option immediately prior to the Effective Time by 0.7389 (the “Exchange Ratio”), multiplied by the Exchange Ratio (rounded rounded, if necessary, to the nearest whole share of Parent Common Stock) , and such converted Company Stock Option shall have an exercise price per share (each Company Stock-Based Award, as so adjusted, an "Adjusted Stock-Based Award"); and
(iv) make such other changes rounded to the nearest whole cent) equal to the per share exercise price specified in such Company Stock Plans as Option divided by the Company and Parent may agree are appropriate to give effect to Exchange Ratio; provided, however, that (1) in the Merger. The Board of Directors of the Company or any committee thereof or other person administering the Company Stock Plans shall ensure that no Company SARs shall be awarded in respect of or in lieu case of any Company Stock Option to which Section 421 of the Internal Revenue Code of 1986, as amended (the “Code”) applies by reason of its qualification under Section 422 of the Code, or (2) to the extent required under Section 409A of the Code and applicable Treasury Department guidance thereunder to prevent the converted Company Stock-Based Award Stock Option from being treated as the grant of a new stock option, the option price, the number of shares subject to such option and the terms and conditions of exercise of such option shall be determined in a manner consistent with the requirements of Section 424(a) of the Code and, as applicable, the requirements of Section 409A of the Code. On or prior to the Effective Time, the Company will take all necessary actions for the adjustment of Company Stock Options pursuant to this Section 2.2(a), including, but not limited to, precluding the holder of each Company Stock Option from receiving any cash payments in respect of such Company Stock Options in connection with or otherwise in respect of the transactions contemplated by this AgreementMerger.
(b) At the Effective Time, Parent shall assume each Company Stock Option Plan and each Company Stock Option in accordance with the terms of the Company Stock Option Plan under which it was issued and the stock option agreement by which it is evidenced. As soon as practicable after the Effective Time, but no later than two (2) Business Days, after the Effective Time, Parent shall deliver to the holders of Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards appropriate Company Stock Options written notices setting forth confirming each such holders' ’ rights pursuant to the respective Company Stock Option Plans and the number of shares of Parent Common Stock to which each holder is entitled and the exercise price thereof, but in all other respects the agreements evidencing the grants of such Adjusted Options, Adjusted SARs Company Stock Options and Adjusted Stock-Based Awards the remaining terms and that such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards and agreements shall be assumed by Parent and conditions shall continue in effect on the same terms and conditions as are existed prior to the Effective Time and in effect on accordance with any changes to such terms required pursuant to the date terms of the Company Stock Option or the Company Stock Option Plans by reason of this Agreement (subject only or the transactions contemplated hereby, or as required pursuant to the adjustments required by this Section 5.05 after giving effect to the Merger)2.2(d) below.
(c) A holder of an Adjusted Option may exercise such Adjusted Option in whole or in part in accordance with its terms by following procedures to be communicated by Parent with the notice contemplated by Section 5.05(b), together with the consideration therefor and the Federal withholding tax information, if any, required in accordance with the applicable Company Stock Plan.
(d) Except Prior to the extent required under the respective terms of the Company Stock Plans and Adjusted OptionsClosing, Adjusted SARs and Adjusted Stock-Based Awards, all restrictions or limitations on transfer and vesting with respect to Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards awarded under the Company Stock Plans or any other plan, program or arrangement of the Company or any of its Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, and all other terms thereof, shall remain in full force and effect with respect to such Adjusted Options, Adjusted SARs and Adjusted Stock-Based Awards after giving effect to the Merger and the assumption by Parent as set forth in this Section 5.05.
(ei) As soon as practicable following the Effective Time, Parent shall prepare and file with the SEC take all corporate action necessary to reserve for issuance a registration statement on Form S-8 (or another appropriate form) registering a sufficient number of shares of Parent Common Stock representing for delivery upon exercise of Company Stock Options, and (ii) the number Company shall take all corporate action, if any, necessary for the Company to (A) have its transfer agent record that all Restricted Company Shares are non-forfeitable and fully transferable at the Effective Time and (B) provide for full vesting and payment at the Effective Time of lump sum cash payments to the holders of performance grants issued under the Company’s 2005 Stock Incentive Plan (the “2005 Plan”) set forth in Section 3.5(b) of the Company Disclosure Schedule, as required by the terms of such performance grants. Promptly after the Effective Time, but no later than two (2) Business Days after the Effective Time, Parent shall file a registration statement on Form S-3 or Form S-8, as the case may be (or any successor or other appropriate forms), with respect to the shares of Parent Common Stock equal subject to such Company Stock Options, and Parent shall 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 Options remain outstanding or for so long as such registration statement is required with respect thereto. With respect to those individuals who subsequent to the number of shares Merger will be subject to the Adjusted Options. The reporting requirements under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), where applicable, Parent shall administer the Company Stock Option Plans in a manner consistent with the exemptions provided by Rule 16b-3 promulgated under the Exchange Act.
(d) Each unexercised Company Stock Option, whether vested or unvested, that is held by any executive officer of the Company immediately prior to the Effective Time shall cooperate with, remain exercisable (without regard to whether termination of the executive’s employment would have provided for a shorter exercise period following such termination of employment) until the last date on which exercise would be permitted without causing the Company Stock Option to be treated as modified for purposes of Section 409A of the Code and assist Parent in the preparation of, such registration statementTreasury Department guidance issued thereunder.
Appears in 1 contract
