Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for the right to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option. (b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect. (c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9. (d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time. (e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan. (f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 3 contracts
Samples: Merger Agreement (Covidien PLC), Merger Agreement (Aspect Medical Systems Inc), Merger Agreement (Aspect Medical Systems Inc)
Company Stock Plans. (a) Each option Effective as of the Effective Time, each outstanding stock option, stock equivalent right or right to purchase Company Common Stock acquire Shares (each a “Company Stock Option” and collectively, the “Company Options”) granted under any stock option plans or other equity-related plans of the Company Company’s Amended and Restated 2000 Equity Incentive Plan and 1995 Stock Plan (the “Company Stock Plans”), whether without regard to the extent then vested and exercisable, shall be cancelled and, in consideration of such cancellation, Parent shall, or unvestedshall cause the Surviving Corporation to, that promptly following the Effective Time, pay to such holders of Company Options, an amount in respect thereof equal to the product of (x) the excess, if any, of the Offer Price over the exercise price of each such Company Option and (y) the number of unexercised Shares subject thereto (such payment, if any, to be net of applicable Taxes withheld pursuant to Section 2.6).
(b) Effective as of the Effective Time, each restricted stock unit, representing a right to receive one Share (each a “Company RSU” and collectively, the “Company RSUs”) granted under any Company Stock Plan, which is outstanding immediately prior to the Effective Time shall will become fully vested (provided, however, that only 1,250 of the 5,000 Company RSUs granted in 2009 pursuant to Section 12 of the Company’s Amended and be cancelled as Restated 2000 Equity Incentive Plan to each of the independent members of the Company Board of Directors, which are outstanding immediately prior to the Effective Time (without regard to Time, will become vested as of the exercise price of such Company Stock OptionEffective Time) in exchange for the right to receive and then will be cancelled at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelledsuch cancellation, Parent shall, or shall cause the Surviving Corporation to, promptly following the Effective Time (but in any event not later than 10 Business Days)Time, pay to such holders of Company RSUs, an amount (net of applicable taxes) in respect thereof equal to the product of (ix) the excessOffer Price and (y) the number of Shares into which the vested portion of the Company RSU would otherwise be convertible (such payment, if any, to be net of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject applicable Taxes withheld pursuant to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisableSection 2.6), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Company Subsidiary of the Company (as defined in Section 3.4(a)) shall be cancelled. The Company shall use all reasonable efforts to effectuate the foregoing, including, but not limited to, sending out the requisite notices and obtaining all consents necessary to cash out and cancel all Company Options and Company RSUs necessary to ensure that, after the Effective Time, no person shall have any right under the Company Stock Plans, except as set forth herein.
Appears in 3 contracts
Samples: Merger Agreement (Covidien PLC), Merger Agreement (Vnus Medical Technologies Inc), Merger Agreement (Covidien Group S.a.r.l.)
Company Stock Plans. (a) Each option Effective as of the Effective Time, each outstanding stock option, stock equivalent right or right to purchase Company Common Stock acquire Shares (each a “Company Stock Option” and collectively, the “Company Options”) granted under any stock option plans the Company’s 1991 Incentive Stock Option Plan, 1997 Stock Option Plan or other equity-related plans of the Company 2005 Stock Incentive Plan (the “Company Stock Plans”)) or granted outside of a plan, whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for the right to receive at the Effective Timeextent then vested and exercisable, in accordance with this Section 2.9shall be cancelled and, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelledsuch cancellation, Parent shall, or shall cause the Surviving Corporation to, promptly following the Effective Time (but in any event not later than 10 Business Days)Time, pay to such holders of Company Options, an amount (net of applicable taxes) in respect thereof equal to the product of (ix) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock Offer Price over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of each such Company Option and (y) the number of unexercised Shares subject thereto (such payment, if any, to be net of applicable Taxes withheld pursuant to Section 2.5).
(b) Effective as of the Effective Time, restrictions on each restricted stock award (each a “Company Restricted Share” and collectively, the “Company Restricted Shares”) granted under any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock OptionsPlan, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans is outstanding immediately prior to the Effective Time, will lapse as of such Effective Time and such Company Restricted Shares shall become fully vested and free be treated in the same manner as other Shares pursuant to Section 2.1(c) (except that with respect to any restrictions which by the terms provide for a lapse to a lesser extent upon the consummation of any vesting or other the Merger, such restrictions shall only lapse restrictions immediately prior to the Effective Timesuch lesser extent) (such payment, if any, to be net of applicable Taxes withheld pursuant to Section 2.5).
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(fc) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company Company, or any Company Subsidiary (as defined in Section 3.4(a)), shall be cancelled. The Company shall ensure that, after the Effective Time, no person shall have any right under the Company Stock Plans to acquire any capital stock of the Company or the Surviving Corporation or any other equity interest therein (including “phantom” stock or stock appreciation rights), except as set forth herein. The Company Board of Directors (or, if appropriate, any committee thereof administering the Company Stock Plans) shall adopt such resolutions, or take such other actions as may be cancelledrequired, to effect the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (Somanetics Corp), Merger Agreement (Covidien PLC), Merger Agreement (Somanetics Corp)
Company Stock Plans. (a) Each option to purchase Company Common Stock RSUs.
(“Company Stock Options”i) granted under any stock option plans or other equity-related plans Effective as of the Company (the “Company Stock Plans”)Effective Time, whether vested or unvested, that is outstanding immediately prior to and if the Effective Time occurs prior to June 30, 2023, then each Company RSU that is scheduled to vest on June 30, 2023 shall become fully vested vest in full and shall automatically be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for and converted into the right to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the an amount of the Option Consideration cash (as defined below), if any, with respect without any interest thereon and subject to such Company Stock Option.
(bapplicable withholding Tax) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) Surviving Corporation equal to the product of (iA) the excessnumber of shares of Company Common Stock then underlying such Company RSU multiplied by (B) (I) the Cash Consideration plus the dividend equivalents that have accrued on such Company RSU, if anyplus (II) the Parent Share Price multiplied by the Exchange Ratio.
(ii) Effective as of the Effective Time, each Company RSU that is then outstanding and unvested, and which does not vest in accordance with Section 1.8(a) above, shall, by virtue of the Merger and without any action on the part of the holder thereof, cease to represent a Company RSU with respect to Company Common Stock and shall thereafter constitute an award, on the same terms and conditions (including as to vesting and forfeiture) as were applicable under such Company RSU immediately prior to the Effective Time, with respect to the number (rounded to the nearest whole number) of shares of Parent Common Stock determined by multiplying (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option RSU immediately prior to the Effective Time by (whether B) the RSU Exchange Ratio. For the avoidance of doubt, any amounts relating to dividend equivalent rights, if any, that are accrued but unpaid under an outstanding award of Company RSUs as of the Effective Time shall be converted consistent with the foregoing and remain subject to the same terms and conditions (including as to vesting and forfeiture) as were applicable under such award of Company RSUs immediately prior to the Effective Time.
(b) Effective as of the Effective Time, each Company PSU that is then outstanding and unvested shall vest (i) in the case of a Company RTSR, at a pro rata portion of the target amount based on the portion of the performance cycle then completed, or not then vested or exercisable)(ii) in the case of a Company EPS/RSU, the target amount, and in each case shall automatically be cancelled and converted into the right to receive an amount of cash (without any interest thereon (and subject to applicable withholding Tax) from the “Option Consideration”). In the event that the exercise price of any Company Stock Option is Surviving Corporation equal to or greater than the Merger product of (i) the total number of shares of Company Common Stock then underlying the vested portion of such Company PSU multiplied by (ii) (A) the Cash Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effectplus (B) the Parent Share Price multiplied by the Exchange Ratio.
(c) The Parent shall (i) cause the Surviving Corporation to make the payments contemplated by the foregoing Section 1.8(a)(i) and Section 1.8(b) (and subject to Section 1.10) as promptly as practicable (and in any event within ten Business Days) after the Effective Time, and (ii) cause the Surviving Corporation to maintain at all times from and after the Effective Time sufficient liquid funds to satisfy its obligations pursuant to Section 1.8(a)(i) and Section 1.8(b).
(d) As soon as practicable following the execution of this Agreement, and in any event at least five Business Days prior to the anticipated Closing Date, the Company shall mail provide a notice to each Person who is a holder of Company Stock Options a letter RSUs or Company PSUs describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 1.8 and providing instructions for use in obtaining payment for such therefor, as applicable. The Company Stock Options, which letter shall be subject provide the Parent with a reasonable opportunity to review the notices described in this Section 1.8(d) reasonably in advance of providing said notices and the Company shall incorporate any reasonable comments provided by the Parent to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective TimeCompany.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of No later than ten days after the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Periodhereof, the Company Board shall, prior to such Effective Time, shall pass resolutions and take such other actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock treatment of the Company or any Subsidiary of RSUs and Company PSUs as contemplated by this Section 1.8, and shall promptly thereafter provide evidence thereof to the Company shall be cancelledParent that is reasonably satisfactory to the Parent.
Appears in 2 contracts
Samples: Merger Agreement (Kimball International Inc), Merger Agreement (Kimball International Inc)
Company Stock Plans. (a) Each option Immediately prior to purchase Company Common Stock (“the Effective Time, each Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”)Option, whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested exercisable and be cancelled as of immediately prior vested. Subject to the Effective Time (without regard to the exercise price of such Company Stock Option) proration provisions set forth in exchange for the right to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below6.05(d), if any, with respect to such Company Stock Option.
(b) Each each holder of a Company Stock Option shall receive from be given the Purchaser or opportunity, prior to the ParentElection Deadline, in respect and in consideration of each to elect either (i) to cause such Company Stock Option so cancelled, promptly following (a “Stock Electing Option”) to become and represent an option to acquire shares of Parent Common Stock (a “Converted Stock Option”) in accordance with paragraph (b) of this Section 6.05 or (ii) to cause such Company Stock Option (a “Cash Electing Option”) to be cancelled in exchange for a single lump sum cash payment (less any required Tax withholding) (the Effective Time (but in any event not later than 10 Business Days“Company Option Cash Out Amount”), in an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time and (whether or not then vested or exercisable)B) the excess, without any interest thereon (if any, of the “Option Consideration”). In the event that Cash Out Amount over the exercise price per share of such Company Stock Option, in accordance with paragraph (c) of this Section 6.05. Subject to the proration provisions set forth in Section 6.05(d), to the extent any holder of a Company Stock Option is equal shall not have made an election with respect to or greater than such Company Stock Option prior to the Merger ConsiderationElection Deadline, such Company Stock Option shall be cancelleddeemed to be a Stock Electing Option. Section 6.05(a) of the Company Disclosure Letter lists certain individuals that have agreed that their Company Stock Options will be treated as Cash Electing Options (subject to limited exceptions) in accordance with the terms of letter agreements between such individuals and the Company, and true and correct copies of such letter agreements have been provided to Parent.
(b) Each Stock Electing Option shall, immediately following the Effective Time, and without any consideration being payable in respect further action on the part of the holder thereof, be assumed by Parent and have no further force converted into a fully vested Converted Stock Option, on the same terms and conditions (except as provided in this Section 6.05(b)) as were applicable under such Company Stock Option, to purchase a number of shares of Parent Common Stock equal to the product of (x) the number of shares of Company Common Stock subject to such Company Stock Option multiplied by (y) the Special Exchange Ratio (as defined in Section 6.05(h)) (provided that any fractional share resulting from such multiplication shall be rounded down to the nearest whole share). The exercise price per share of each Converted Stock Option resulting from the conversion of the Company Stock Option pursuant to this Section 6.05(b) shall be equal to the quotient of (i) the exercise price per share of the Company Stock Option that converted into the Converted Stock Option divided by (ii) the Special Exchange Ratio (provided that such exercise price shall be rounded up to the nearest whole cent). Notwithstanding anything to the contrary contained in this Agreement, in the case of any option to which Section 421 of the Code applies by reason of its qualification under either Section 422 or effect424 of the Code (“qualified stock options”), the option price, the number of shares purchasable pursuant to such option and the terms and conditions of exercise of such option shall be determined in order to comply with Section 424(a) of the Code.
(c) As soon as practicable Each Cash Electing Option shall, immediately following the execution Effective Time, and without any further action on the part of this Agreementany holder thereof, be cancelled in exchange for the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and commentOption Cash Out Amount. The Surviving Corporation or Parent shall at all times from and after pay the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to the payments described in this Section 2.96.05(c) on or as soon as reasonably practicable after the Closing Date, but in any event (i) within seven Business Days following the Closing Date if the pro ration set forth in Section 6.05(d) does not apply and (ii) within ten Business Days of the Closing Date if the pro ration set forth in Section 6.05(d) does apply.
(d) Each Restricted Share granted Notwithstanding anything to the contrary contained in this Agreement, in the event that the number of Stock Electing Options, when considered together with the number of shares of Parent Common Stock otherwise issuable pursuant to the provisions of this Agreement, including upon the exercise of Warrants and the conversion of Convertible Debentures outstanding at the Effective Time, would cause Parent to exceed the limitation set forth in Section 6.05(d) of the Company Disclosure Letter (the “Applicable Limitation”), then the In the Money Stock Plans outstanding Electing Options shall be subject to pro rata reduction solely to the extent necessary to cause Parent not to exceed the Applicable Limitation and such pro rata reduction shall apply on the following basis: With respect to each holder of In the Money Stock Electing Options, a number of In the Money Stock Electing Options equal to (i) all of such holder’s In the Money Stock Electing Options minus (ii) the Rollover Amount, shall be deemed to be Cash Electing Options and the balance of such holder’s In the Money Stock Electing Options shall continue to be Stock Electing Options. For purposes of this Section 6.05(d), with respect to any holder of In the Money Stock Electing Options, “Rollover Amount” means a number of In the Money Stock Electing Options (rounded down to the nearest whole share) equal to the product of (x) all of such holder’s In the Money Stock Electing Options multiplied by (y) the quotient of (I) the Maximum Amount divided by (II) the number of all In the Money Stock Electing Options; provided, however, that with respect to each holder of In the Money Stock Electing Options subject to pro rata reduction under this Section 6.05(d), the designation of Cash Electing Options shall apply to the applicable portion of such holder’s In the Money Stock Electing Options with the greatest positive intrinsic value (i.e., the excess of the Cash Out Amount over the exercise price) immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect thereafter to such Plan Period, holder’s In the Company Board shall, prior to such Effective Time, take such actions Money Stock Electing Options with the next greatest positive intrinsic value as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.of
Appears in 2 contracts
Samples: Merger Agreement (Hercules Inc), Merger Agreement (Ashland Inc.)
Company Stock Plans. (a) Each option Immediately before the Effective Time, each share of Company Common Stock granted subject to time-based, performance or other vesting or lapse restrictions pursuant to any Company Stock Plan (as defined in Section 2.3(b)) (each, a “Restricted Share”), that is outstanding and subject to such restrictions immediately before the Effective Time shall automatically vest and any performance conditions shall be deemed to have been satisfied in full such that the recipient shall be entitled to 100% of the shares of Company Common Stock subject to such performance share award, and the Company’s reacquisition right with respect to each Restricted Share shall lapse, and the holder thereof shall, subject to this Article II, be entitled to receive the Merger Consideration with respect to each such Restricted Share.
(b) The Company shall take such action as shall be required:
(i) to cause the vesting of any unvested options to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is ) to be accelerated in full effective immediately before the Effective Time; and
(ii) to cause each outstanding immediately prior Company Stock Option to represent as of the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for solely the right to receive at the Effective Timereceive, in accordance with this Section 2.92.3 and subject to Section 2.2(b)(iii), a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock OptionOption and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, Parent, the Surviving Corporation or any other person or any other consideration.
(bc) Each holder of a Company Stock Option cancelled pursuant to Section 2.3(b)(ii) shall receive from the Purchaser Parent or the ParentSurviving Corporation, in respect and in consideration of each such Company Stock Option so cancelledOption, promptly as soon as practicable following the Effective Time (but in any event not later than 10 three Business Days), an amount (net of applicable taxesTaxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock Share over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock Shares subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(cd) As soon as practicable following Following the execution of this Agreement, (i) if and as required by the Company Stock Plans, the Company shall mail to each Person person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such Company Stock OptionsOptions and (ii) the Company shall take all actions necessary or appropriate to terminate the Company Stock Plans as of the Effective Time (including any necessary or appropriate action of the Company Board). Parent shall, which letter or shall be subject to cause the Parent’s prior review and comment. The Parent shall Surviving Corporation to, at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.92.3.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 2 contracts
Samples: Merger Agreement (Harris Teeter Supermarkets, Inc.), Merger Agreement (Kroger Co)
Company Stock Plans. (a) Each option At the Effective Time, all unexercised options to purchase shares of Company Common Stock (the “Company Stock Options”) granted then outstanding under any the stock option plans or other equity-related plans listed in Section 1.10(a) of the Company Disclosure Schedule (together, the “Company Stock Plans”)) will be terminated or cancelled, whether vested or unvestedas the case may be, that is outstanding immediately prior to in accordance with the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price terms of such Company Stock Option) in exchange for Plans and the right agreements entered into under such Company Stock Plans. Prior to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of give any notice required by the Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock OptionsPlans, which letter notice shall be subject have been provided to the Parent’s Parent for its review prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations delivery, to holders of Company Stock Options pursuant to this Section 2.9.
of (di) Each Restricted Share granted pursuant to the acceleration in full of the vesting of such Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shallif applicable, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account effective as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP on or prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, (ii) the right of each holder of such Company Stock Options to exercise such Company Stock Options contingent upon the consummation of the Merger, (iii) if the Company should so elect, in its sole discretion, the right of each holder of such Company Stock Plans shall terminate Options to exercise such Company Stock Options on a net exercise basis, contingent upon the consummation of the Merger, and all rights under any provision (iv) the termination or cancellation, as the case may be, upon the Closing of any other planunexercised Company Stock Options.
(b) The Company and Parent shall each, program or arrangement providing for to the issuance or grant extent permitted by applicable Law, take all action reasonably necessary to cause all dispositions of any other interest in respect of the capital stock equity securities of the Company (including Company Stock Options) or acquisitions of equity securities of Parent (including the Warrants and any Subsidiary options to acquire Parent Common Stock that may be granted by Parent) by each individual who (i) is a director or officer of the Company shall Company, or (ii) at the Effective Time will become a director or officer of Parent, to be cancelledexempt pursuant to Rule 16b-3 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Xenogen Corp), Agreement and Plan of Merger (Xenogen Corp)
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Time, each then-outstanding and unexercised Company Stock Option) Option shall vest in exchange for full and, as of the Effective Time, automatically be canceled and converted into the right to receive at from the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the Surviving Corporation an amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive cash from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) Surviving Corporation equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to then underlying such Company Stock Option multiplied by (whether or not then vested or exercisable)ii) the excess, if any, of the Merger Consideration over the exercise price per share of such Company Stock Option, without any interest thereon (the “Option Consideration”)thereon. In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelledcanceled, without any consideration being payable in respect thereof, and have no further force or effect.
(b) Effective as of immediately prior to the Effective Time, each Company Stock Unit that is then outstanding and unvested shall vest in full, and each Company Stock Unit for which shares of Company Common Stock have not been delivered as of immediately prior to the Effective Time shall, as of the Effective Time, be canceled and converted into the right to receive from the Surviving Corporation an amount of cash from the Surviving Corporation equal to the product of (i) the total number of shares of Company Common Stock then underlying such Company Stock Unit multiplied by (ii) the Merger Consideration.
(c) The Parent shall (i) cause the Surviving Corporation to make any payments contemplated by the foregoing Section 2.3(a) and Section 2.3(b) as promptly as practicable (and in any event within five (5) Business Days) after the Effective Time, and (ii) cause the Surviving Corporation to maintain at all times from and after the Effective Time sufficient liquid funds to satisfy its obligations pursuant to Section 2.3(a) and Section 2.3(b).
(d) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options or Company Stock Units a letter describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Timetherefor.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after During the period from the date of this Agreement. As used in this Agreement, “Company ESPP” means hereof until the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As termination of the Effective TimeCompany ESPP in accordance with the foregoing sentence, the Company Stock Plans shall terminate and all rights not permit any offering periods to occur under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelledESPP.
Appears in 2 contracts
Samples: Merger Agreement (Risley John Carter), Merger Agreement (First Marblehead Corp)
Company Stock Plans. (a) Each At the Effective Time, by virtue of the Merger and without any action on the part of the holder of any option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is each Company Stock Option outstanding immediately prior to the Effective Time (i) shall become fully be canceled and terminated and (ii) (A) in the case of Company Stock Options that would have been vested and be cancelled or exercisable as of immediately the Effective Time but for such cancellation and termination (giving effect to the terms of any applicable Company Stock Plan or agreement with the Company relating to such Company Stock Option providing for the acceleration of the vesting or exercisability of such Company Stock Option at or prior to the Effective Time Time) (without regard to the exercise price of such Company Stock Option) in exchange for “Vested Options”), shall represent the right to receive at the Effective Time, an amount in accordance with this Section 2.9, a lump sum cash payment in the amount of equal to the Option Consideration (as defined below), if any, with respect to ) for each share of Company Common Stock that would have been issuable upon exercise of such Company Stock OptionOption as of the Effective Time and (B) in the case of Company Stock Options that would not have been vested or exercisable as of the Effective Time even without giving effect to such cancellation and termination, shall be replaced with an incentive plan to be determined by the Board of Directors of the Buyer or the Surviving Corporation following the Closing.
(b) Each holder of a Company Stock Vested Option shall receive from the Purchaser or the ParentBuyer, in respect and in consideration of each Company Stock Vested Option so cancelledcanceled and terminated pursuant to clause (a) above, promptly as soon as reasonably practicable following the Effective Time (but and in any event not later than 10 within eight Business Days), an amount (net of applicable taxes) equal to the product of (i) the excessamount, if any, of by which (A) the Merger Consideration per share of Company Common Stock over exceeds (B) the exercise price per share of Company Common Stock subject to such Company Stock Vested Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable)Vested Option, without any interest thereon (the “Option Consideration”). In For the avoidance of doubt, in the event that the exercise price of any Company Stock Vested Option is equal to or greater than the Merger Consideration, such Company Stock Vested Option shall be cancelled, without any consideration being payable in respect thereof, canceled and have no further force effect, and the holders thereof shall be entitled to participate in an incentive plan to be determined by the Board of Directors of the Buyer or effectthe Surviving Corporation following the Closing.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent Buyer shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.92.3. If requested by the Buyer not less than five (5) Business Days prior to the Effective Time, the Company shall coordinate with the Buyer and the Exchange Agent to have the Option Consideration paid through the Company’s payroll system.
(d) Each Restricted Share granted pursuant to The Company shall terminate its Second Amended and Restated 1992 Stock Purchase Plan, as amended (the “Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free ESPP”), in accordance with its terms as of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 2 contracts
Samples: Merger Agreement (Brooktrout Inc), Merger Agreement (Brooktrout Inc)
Company Stock Plans. (a) Each option Prior to the Effective Time, the Company’s Board of Directors (or, if appropriate, any committee thereof) shall adopt appropriate resolutions and take all other actions necessary, including obtaining the consent of the individual holders, to provide for the cancellation, effective at the Effective Time, of all the outstanding options, restricted stock grants, restricted stock subject to vesting or similar rights to purchase Company Common Stock or acquire Shares (“Company Stock OptionsRights”) ), whether or not vested, heretofore granted under any stock option plans or other equity-related plans similar plan of the Company or other agreement or arrangement (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for the right to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”)payment therefor except as otherwise provided for herein. In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP Immediately prior to the Effective Time, the Company shall accelerate the vesting of all unvested Stock Rights and each then such Option vested Stock Right shall thereafter no longer be deemed exercisable but shall entitle each holder thereof, in cancellation and settlement therefor, to have been exercised a payment in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined cash by the Company BoardCompany, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to at the Effective Time, equal to the Merger Consideration, less the applicable exercise price of such Stock Right, if any (the “Stock Rights Payment”). No new “Plan Period” Any payment made hereunder shall commence after be subject to all applicable federal, state, local and foreign tax withholding requirements and to the date extent that amounts are withheld, such withheld amounts shall be treated for all purposes of this AgreementAgreement as having been paid to the holder of the Stock Right. As used in Within two (2) Business Days following the Effective Time, Parent shall deposit or cause to be deposited with the Company an amount necessary to make payment of the aggregate amounts of Merger Consideration due to holders of Stock Rights pursuant to this AgreementSection 2.2, “Company ESPP” means by wire transfer of immediately available funds. Promptly following the Company’s Restated 1999 Employee Effective Time, the Surviving Corporation shall make payments to holders of Stock Purchase PlanRights as set forth herein.
(fb) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program program, or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled. At and after the Effective Time, no Person shall have any right under the Stock Rights, the Stock Plans, or any other plan, program, or arrangement with respect to equity securities of the Surviving Corporation or any Subsidiary thereof, except the right to receive the Stock Rights Payment.
Appears in 2 contracts
Samples: Merger Agreement (Akorn Inc), Merger Agreement (Hi Tech Pharmacal Co Inc)
Company Stock Plans. (a) Each option Prior to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans the consummation of the Offer the Company (the “Company Stock Plans”)shall take all actions necessary to provide that, whether vested at or unvested, that is outstanding immediately prior to the Effective Time Time, (i) each then outstanding option to purchase Shares (the "Options") and ------- each outstanding Stock Appreciation Right (the "SARs") granted under the ---- Company's 1994 Director Stock Option Plan, 1994 Long-Term Incentive Plan, 1993 Incentive and Non-Statutory Stock Option Plan, 1987 Incentive Stock Option Plan, 1984 Incentive Stock Option Plan and any other stock-based incentive plan or arrangement of the Company (collectively, the "Stock Plans"), whether or not ----------- then vested or exercisable, shall become fully vested and be cancelled and (ii) in consideration of such cancellation, such holders of Options and SARs shall receive for each Share subject to such Option or SAR an amount (subject to any applicable withholding tax) in cash equal to the product of (A) the excess, if any, of the Offer Price over the per Share exercise price of such Option or the per Share base price of such SAR and (B) the number of Shares subject to such Option or SAR, whether or not vested. The Company shall use all reasonable efforts to effectuate the foregoing, including without limitation amending the Stock Plans and obtaining any necessary consents from holders of Options and SARs; provided, -------- however, that prior to the purchase of Shares pursuant to the Offer, the Board ------- of Directors of the Company shall adopt such resolutions or take such other actions as of are required to adjust, effective immediately prior to the Effective Time, the terms of each outstanding Option and SAR under the Stock Plans as to which any such consent is not obtained prior to the Effective Time (without regard to provide that such Option or SAR shall be converted into the right, upon exercise of such Option or SAR and payment of the exercise price of such Company Stock Option) in exchange for the right to receive thereof, at any time after the Effective Time, to receive an amount in accordance with this Section 2.9, a lump sum cash payment in equal to the amount of the Option Consideration (as defined below), if any, with respect Offer Price for each Share subject to such Company Stock Option.
(b) Each holder Option or SAR, or, alternatively, upon the surrender and cancellation of a Company Stock such Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following SAR at any time after the Effective Time (but in any event not later than 10 Business Days), to receive an amount (net of applicable taxes) equal to the product of in cash determined by multiplying (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock Offer Price over (B) the applicable exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied Option or base price of such SAR by (ii) the total number of shares of Company Common Stock Shares subject to such Company Stock Option (whether or not then vested SAR, in either case without interest or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effectother adjustment thereto.
(cb) As soon Except as practicable following may be otherwise agreed to by Parent or the execution of this AgreementPurchaser and the Company, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate as of the Effective Time and all rights under any provision of the provisions in any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of its Subsidiaries shall be deleted as of the Effective Time.
(c) The Company shall take all necessary actions to provide that as of the Effective Time no holder of Options under the Stock Plans will have any right to receive shares of common stock of the Surviving Corporation upon exercise of any such Option.
(d) The Company shall take all actions necessary to provide that at or immediately prior to the Effective Time, (i) each then outstanding option or right to acquire Shares under the Company's Employee Stock Purchase Plan (the "Stock Purchase Plan") shall automatically be cancelledexercised or deemed exercised and -------------------- (ii) in lieu of the issuance of Certificates, each option or right holder shall receive an amount in cash (subject to any applicable withholding tax) equal to the product of (x) the number of Shares otherwise issuable upon such exercise and (y) the Merger Consideration. The Company shall use all reasonable efforts to effectuate the foregoing, including without limitation amending the Stock Purchase Plan and obtaining any necessary consents from holders of such options or rights. The Company (i) shall not permit the commencement of any new offering period under the Stock Purchase Plan following the date hereof, (ii) shall not permit any optionee or right holder to increase his or her rate of contributions under the Stock Purchase Plan following the date hereof, (iii) shall terminate the Stock Purchase Plan as of the Effective Time, and (iv) shall take any other actions necessary to provide that as of the Effective Time no holder of options or rights under the Stock Purchase Plan will have any right to receive shares of common stock of the Surviving Corporation upon exercise of any such option or right.
Appears in 2 contracts
Samples: Merger Agreement (Saffron Acquisition Corp), Merger Agreement (Sun Coast Industries Inc /De/)
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Time, each then-outstanding and unexercised Company Stock Option) Option shall vest in exchange for full and automatically be canceled and converted into the right to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the an amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive cash from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) Surviving Corporation equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to then underlying such Company Stock Option multiplied by (whether or not then vested or exercisable)ii) the excess, if any, of the Merger Consideration over the exercise price per share of such Company Stock Option, without any interest thereon (the “Option Consideration”)and subject to all applicable withholding. In the event that the exercise price of any such Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(b) Effective as of immediately prior to the Effective Time, each Company RSU that is then outstanding and unvested shall vest in full and automatically be canceled and converted into the right to receive an amount of cash from the Surviving Corporation equal to the product of (i) the total number of shares of Company Common Stock then underlying such Company RSU multiplied by (ii) the Merger Consideration, without any interest thereon and subject to all applicable withholding.
(c) Effective as of immediately prior to the Effective Time, each Company PSU that is then-outstanding and unvested shall vest with respect to the maximum number of shares of Company Common Stock that could be earned thereunder and automatically be canceled and converted into the right to receive an amount of cash from the Surviving Corporation equal to the product of (i) the maximum number of shares of Company Common Stock then underlying such Company PSU multiplied by (ii) the Merger Consideration, without any interest thereon and subject to all applicable withholding.
(d) Prior to the Effective Time, the Company shall pass resolutions and take such other actions as are necessary to provide for the treatment of the Company Stock Options, Company RSUs and Company PSUs as contemplated by this Section 2.8.
(e) The Parent shall cause the Surviving Corporation to make the payments contemplated by the foregoing Section 2.8(a), Section 2.8(b) and Section 2.8(c) as promptly as practicable (and in any event within five (5) Business Days) after the Effective Time.
(f) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options Options, Company RSUs or Company PSUs a letter describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 2.8 and providing instructions for use in obtaining payment for such therefor. The Company Stock Options, which letter shall be subject provide Parent with a reasonable opportunity to review the notices described in this Section 2.8(f) reasonably in advance of providing said notices and the Company shall consider in good faith any reasonable comments provided by Parent to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9Company.
(dg) Each Restricted Share granted pursuant to The Parent and the Company Stock Plans outstanding immediately prior may agree to the Effective Time shall become fully vested and free of any vesting or treat equity compensation held by Company employees subject to non-U.S. law in a manner other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” than that contemplated above in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and Section 2.8 to the extent that such holder does not elect necessary to withdraw his take into account applicable non-U.S. law or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his Tax or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Planemployment considerations.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 2 contracts
Samples: Merger Agreement (Cynosure Inc), Merger Agreement (Hologic Inc)
Company Stock Plans. (a) Each option The Company shall take such action as shall be required:
(i) to cause any unexercisable options to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding ) to be accelerated and become exercisable in full effective immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior Time;
(ii) to effectuate the termination upon the Effective Time of all Company Stock Options outstanding at such time (without regard to the exercise price of such Company Stock OptionOptions); and
(iii) in exchange for to cause, pursuant to the Company Stock Plans, each outstanding Company Stock Option to represent upon the Effective Time solely the right to receive at the Effective Timereceive, in accordance with this Section 2.92.3, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock OptionOption and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, the Buyer, the Surviving Corporation or any other person or any other consideration.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the ParentBuyer, in respect and in consideration of each Company Stock Option so cancelled, promptly as soon as practicable following the Effective Time (but in any event not later than 10 five Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”), which cash payment shall be treated as compensation and shall be net of any applicable federal or state withholding tax. In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, the Option Consideration for such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, zero and such Company Stock Option shall be cancelled and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent Buyer shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.92.3.
(d) Each Restricted Share granted pursuant to The Company shall terminate its 2001 Employee Stock Purchase Plan (the “Company Stock Plans outstanding immediately ESPP”) in accordance with its terms as of or prior to the Effective Time and shall become fully vested and free take such action as it deems necessary to avoid the commencement of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement Offering Period (as such terms are term is defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Periodon or after August 15, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan2005.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 2 contracts
Samples: Merger Agreement (Saucony Inc), Merger Agreement (Stride Rite Corp)
Company Stock Plans. (a) Each option At the Effective Time, each share of Company Common Stock granted subject to vesting or other lapse restrictions pursuant to any Company Stock Plan (as defined in Section 2.3(b) below) (each, a “Restricted Share”), that is outstanding and subject to such restrictions immediately prior to the Effective Time shall automatically vest, and the Company’s reacquisition right with respect to each Restricted Share shall lapse, and the holder thereof shall, subject to this Article II, be entitled to receive the Common Merger Consideration with respect to each such Restricted Share (net of any applicable withholding taxes resulting from vesting of the Restricted Share).
(b) The Company shall take such action as shall be required:
(i) to cause the vesting of any unvested options to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvestedother than the Company ESPP (as defined in Section 2.3(e)), that is outstanding to be accelerated in full effective immediately prior to the Effective Time shall become fully vested and be cancelled Time;
(ii) to effectuate the cancellation, as of the Effective Time, of all Company Stock Options outstanding immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Options); and
(iii) to cause, pursuant to the Company Stock Plans, each outstanding Company Stock Option) in exchange for , other than Company Stock Options issued under the ESPP, to represent as of the Effective Time solely the right to receive at the Effective Timereceive, in accordance with this Section 2.92.3, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option and to no longer represent the right to (A) purchase Company Common Stock or any other equity security of the Company, the Buyer, the Surviving Corporation or any other person, or (B) receive any other consideration for such Company Stock Option.
(bc) Each holder of a Company Stock Option Option, other than Company Stock Options issued under the ESPP, so cancelled shall receive from the Purchaser or the ParentBuyer, in respect and in consideration of each such Company Stock Option so cancelledOption, promptly as soon as practicable following the Effective Time (but in any event not later than 10 three Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Common Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, cancelled and have no further force or effect, and the holder of such Company Stock Option shall not be entitled to any payment with respect to the cancelled Company Stock Option.
(cd) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person person who is a holder of Company Stock Options, other than Company Stock Options a letter issued under the ESPP, any notice describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 2.3 as may be required under the Company Stock Plans and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent Buyer shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.92.3.
(de) Each Restricted Share granted pursuant to The Company shall terminate its 2000 Employee Stock Purchase Plan (the “Company Stock Plans outstanding immediately ESPP”) in accordance with its terms prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect such manner as of the date of this Agreement (as such terms are defined results in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation no participant in the Company ESPP prior to having any right at or after the Effective TimeTime to (i) purchase Company Common Stock or any other equity security of the Company, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to Buyer, the Surviving Corporation or any other person under the Company ESPP; or (ii) receive any cash payment or other consideration for his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate terminated rights under the Company ESPP prior to (other than a refund of his or her unapplied salary reduction deposits under the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan).
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 2 contracts
Samples: Merger Agreement (Biosphere Medical Inc), Merger Agreement (Merit Medical Systems Inc)
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to Time, each Company Restricted Share that is then outstanding and unvested shall automatically become fully vested and the exercise price of restrictions thereon shall lapse, and each such Company Stock Option) in exchange for Restricted Share shall be canceled and converted into the right to receive at from the Effective TimeSurviving Corporation the Merger Consideration, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Optionwithout any interest thereon.
(b) Each holder Effective as of a immediately prior to the Effective Time, each Company Performance Share Award that is then outstanding and unvested shall vest with respect to the target number of shares of Company Common Stock Option shall that could be earned thereunder and automatically be canceled and converted into the right to receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), Surviving Corporation an amount (net of applicable taxes) cash from the Surviving Corporation equal to the sum of (A) the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total target number of shares of Company Common Stock subject to then underlying such Company Stock Option Performance Share Award multiplied by (whether or not then vested or exercisable)ii) the Merger Consideration, without any interest thereon thereon, and (B) dividends paid with respect to the “Option Consideration”). In the event that the exercise price target number of any shares of Company Common Stock Option is equal to or greater than the Merger Consideration, then underlying such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effectPerformance Share Award from the grant date of such Company Performance Share Award to the Effective Time.
(c) US Holdco shall (i) cause the Surviving Corporation to make the payments contemplated by the foregoing Section 2.3(a) and Section 2.3(b) as promptly as practicable after the Effective Time, and in any event, as to any Person who is a holder of Company Restricted Shares or Company Performance Share Awards, by the later of seven (7) Business Days following each such Person’s compliance with any written instructions provided to such Person by the Company, if any, and seven (7) Business Days after the Effective Time and (ii) cause the Surviving Corporation to maintain at all times from and after the Effective Time sufficient liquid funds to satisfy its obligations pursuant to Section 2.3(a) and Section 2.3(b).
(d) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options Restricted Shares or Company Performance Share Awards a letter describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9therefor.
(de) Each Restricted Share granted pursuant Prior to the Effective Time, the Company shall take all actions that are necessary (under the Company Stock Plans Plan and award agreements pursuant to which Company Restricted Shares and Company Performance Share Awards are outstanding immediately prior or otherwise) to (i) effect the measures contemplated by this Section 2.3, including but not limited to the Effective Time shall become fully vested and free adoption of any vesting plan amendments, obtaining the approval of the Company Board, obtaining any necessary employee consents or other lapse restrictions providing any necessary employee notices and (ii) cause there to be no rights to acquire Company Common Stock following the Effective Time.
(f) The Company shall take all actions necessary to terminate the Company Stock Plan effective as of immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) , and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to following the Effective Time, then such Option shall be deemed to have been exercised no participant in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans Plan shall terminate and all rights have any right under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary Stock Plan other than the right to receive the payments in accordance with the terms of this Section 2.3. US Holdco shall cause the Company shall be cancelledSurviving Corporation to, subject to Section 2.5, pay through its payroll system the amounts due pursuant to Section 2.3(a) and Section 2.3(b).
Appears in 1 contract
Company Stock Plans. (a) Each option Prior to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans the Effective Time, the Board of Directors of the Company (or the “committee of the Board of Directors administering the Company Stock Plans”Plans (as defined in Section 4.3)) shall adopt such resolutions, whether vested or unvestedincluding a resolution interpreting the relevant provisions of the Company Stock Option Plans as providing that following the Effective Time no Company Option (as defined in Section 2.4(b)) shall be exercisable for shares of Company Common Stock, that is outstanding and shall take such other actions as are required to approve the transactions contemplated by this Section 2.4 and Section 6.1(c). The Company shall use reasonable efforts to obtain the consents of the holders of Company Options to the transactions contemplated by Section 2.4(b).
(b) The Company shall use reasonable efforts to ensure that, immediately prior to the Effective Time Time, (x) each outstanding option to acquire shares of Company Common Stock (the "Company Options") granted under either of the Company Stock Option Plans (as defined in Section 4.3), whether or not then exercisable or vested, shall become fully vested exercisable and vested, (y) each Company Option which is then outstanding shall be cancelled as of immediately prior to the Effective Time canceled and (without regard to the exercise price of such Company Stock Optionz) in exchange for the right to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each such cancellation, and except to the extent that Parent and the holder of any such Company Stock Option so cancelledotherwise agree in writing, promptly following the Effective Time Company (or, at Parent's option, Parent or the Surviving Corporation) shall pay in cash to such holders of Company Options an amount in respect thereof equal to (but in any event not later than 10 Business Days), an amount (net of applicable taxesgreater than) equal to the product of (iA) the excess, if any, for each Company Option, of (A) the Merger Consideration Per Share Amount over the per share of Company Common Stock over exercise price thereof and (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock then subject thereto (such payment to such Company Stock Option (whether or not then vested or exercisablebe net of applicable withholding taxes), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon Except as practicable following otherwise agreed to in writing by the execution of parties to this Agreement, the Company shall mail use reasonable efforts to each Person who is a ensure that, after giving effect to the foregoing, following the Effective Time, (i) no Company Option shall be exercisable for shares of Company Common Stock and (ii) no holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use or any participant in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior or any other such plans, programs or arrangements shall have any right thereunder to the Effective Time shall become fully vested and free of acquire any vesting equity securities (or other lapse restrictions immediately prior to the Effective Time.
(eany interests therein) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan PeriodCompany, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company Surviving Corporation or any Subsidiary of the Company shall be cancelledthereof.
Appears in 1 contract
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether ) to the extent not already vested or unvestedafter the Acceptance Time and/or the exercise of the Top-Up Option, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) ), to the extent not previously exercised, in exchange for the right to receive at and after the Effective Time, in accordance with this Section 2.92.9(b), a lump sum cash payment in the amount of the Option Consideration (as defined below)payment, if any, with respect to such Company Stock Option. In connection with this cancellation, the Company will seek a release of claims related to the Company Stock Options from each holder; for this release, for any options not anticipated to receive payment under Section 2.9(b), the Purchaser or Parent will pay an amount as set forth on Section 2.9 of the Company Disclosure Schedule equal to fifty percent (50%) of the Black-Scholes value with respect to the remaining life of such option as determined using the assumptions currently in use by the Company and the Closing Payment.
(b) Each Subject to providing the release described in Section 2.9(a), each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly as soon as practicable following the Effective Time (but in any event not later than 10 three (3) Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable)Option, without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effectthereon.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each restricted stock grant (“Restricted Share granted pursuant to the Company Stock Plans Shares”) outstanding immediately prior to the Effective Acceptance Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Acceptance Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 1 contract
Samples: Merger Agreement (Trimeris Inc)
Company Stock Plans. (a) Each The Company will take all actions necessary to provide that, upon the Effective Time, (i) each outstanding option (each, an "Option") to purchase Company Common Stock under the Company's Amended and Restated 1984 Stock Option Plan (“the "1984 Option Plan"), the Company's 1997 Equity Participation Plan, as amended (the "Equity Participation Plan") or the Company's Non-Qualified Stock Option Plan of Gary X. Xxxx (xxe "Non-Qualified Stock Option Plan" and, together with the Equity Participation Plan and the 1984 Option Plan, the "Company Stock Options”Plans"), (ii) each outstanding stock appreciation right, performance award or other award granted under any stock option plans the Company's Equity Participation Plan (each, an "Incentive Plan Award"), and (iii) each outstanding share of restricted Company Common Stock issued under the Company's Equity Participation Plan ("Restricted Shares" and, together with Options and Incentive Plan Awards, "Awards"), whether or other equity-related plans not then exercisable or vested, all of which Awards are listed in Section 2.03(a) of the Company Disclosure Schedule (as defined in Section 3.01), will become fully exercisable and vested.
(b) As soon as practicable after the “date hereof, the Company will deliver to holders of Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans”, the agreements evidencing the grants of such Awards and this Agreement. Holders of Options identified on Section 2.03(b) of the Company Disclosure Schedule will be entitled, at their election, to have any or all of their Options (i) assumed by RECO pursuant to and in accordance with Section 2.03(c) or (ii) canceled or repurchased pursuant to and in accordance with Section 2.03(d). All other Options will be canceled or repurchased pursuant to and in accordance with Section 2.03(d).
(c) At the Effective Time, the Company's obligations with respect to each Option for which the holder thereof has elected pursuant to the second sentence of Section 2.03(b) to be assumed by RECO (an "Assumed Option"), whether vested will be assumed by RECO. The Assumed Options will continue to have, and be subject to, the same terms and conditions as set forth in the Company Stock Plans (as the case may be) and related option or unvestedother grant agreements (as in effect immediately prior to the Effective Time) pursuant to which the Assumed Options were issued, provided that is outstanding (i) all references to the Company will be deemed to be references to RECO, and all references to the Company Common Stock will be deemed to be references to Paired Shares, (ii) each Assumed Option will be exercisable for that number of whole Paired Shares equal to the product of the number of shares of the Company Common Stock covered by the Assumed Option immediately prior to the Effective Time shall become fully vested multiplied by the Exchange Ratio and rounded to the nearest whole number of Paired Shares, and (iii) the exercise price per share of Paired Shares under each Assumed Option will be cancelled as equal to the exercise price per share of the Company Common Stock under the Assumed Option immediately prior to the Effective Time (without regard divided by the Exchange Ratio, rounded to the nearest cent. Pursuant to this Agreement and in accordance with the Subscription Agreement, RECO will (A) reserve for issuance or hold the number of Paired Shares that will become issuable upon the exercise price of such Company Stock OptionAssumed Options pursuant to this Section 2.03(c) in exchange for and (B) promptly after the right Effective Time issue to receive at each holder of an outstanding Assumed Option a document evidencing the assumption by RECO of the Company's obligations with respect thereto under this Section 2.03(c).
(d) Immediately prior to the Effective Time, in accordance with this Section 2.9each Option which is not an Assumed Option will be canceled or repurchased, a lump sum cash payment in the amount of the Option Consideration (as defined below)appropriate, if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of such cancellation or repurchase, as the case may be, the Company will pay to the holder of each Company Stock such Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) in respect thereof equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock OptionApplicable Amount, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option thereto (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.such
Appears in 1 contract
Company Stock Plans. (a) Each option Immediately prior to the Effective Time, each share of Company Common Stock granted subject to time-based, performance or other vesting or lapse restrictions pursuant to any Company Stock Plan (as defined in Section 2.3(b) below) (each, a “Restricted Share”), that is outstanding and subject to such restrictions immediately prior to the Effective Time shall automatically vest, and the Company’s reacquisition right with respect to each Restricted Share shall lapse, and the holder thereof shall, subject to this Article II (including Section 2.2(f)), be entitled to receive the Merger Consideration with respect to each such Restricted Share.
(b) The Company shall take such action as shall be required:
(i) to cause the vesting of any unvested options to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding ) to be accelerated in full effective immediately prior to the Effective Time shall become fully vested Time; and
(ii) to cause each outstanding Company Stock Option, except for such Company Stock Options with respect to which the Buyer and be cancelled the holder thereof agree otherwise (the “Rollover Options”), to represent as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for solely the right to receive at the Effective Timereceive, in accordance with this Section 2.92.3 and subject to Section 2.2(f), a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock OptionOption and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, the Buyer, the Surviving Corporation or any other person or any other consideration.
(bc) Each Company Stock Option that is not a Rollover Option (a “Cancelled Stock Option”) shall be cancelled as of the Effective Time, and each holder of a Company Cancelled Stock Option shall receive from the Purchaser Buyer or the ParentSurviving Corporation, in respect and in consideration of each Company such Cancelled Stock Option so cancelledOption, promptly as soon as practicable following the Effective Time (but in any event not later than 10 five Business DaysDays thereafter), an amount (net of applicable taxestaxes withheld pursuant to Section 2.2(f)) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Cancelled Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Cancelled Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Cancelled Stock Option is equal to or greater than the Merger Consideration, such Company Cancelled Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(cd) As soon At the Effective Time, each Rollover Option, if any, shall be automatically converted, by virtue of the Merger and without any further action on the part of a holder thereof, to an option to purchase common stock (or common units in the case of a non-corporate entity) of any direct or indirect parent of the Surviving Corporation, with the number of shares or units underlying such option, and the applicable exercise price, equitably adjusted to prevent any increase or decrease in the intrinsic value of such Rollover Option as practicable following a result of the transactions contemplated hereby.
(e) Following the execution of this Agreement, (i) if and as required by the Company Stock Plans, the Company shall mail to each Person person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Cancelled Stock Options pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such Cancelled Stock Options and (ii) the Company shall take all actions necessary or appropriate to effectuate the actions contemplated by this Section 2.3 and to terminate the Company Stock Options, which letter shall be subject to Plans as of the Parent’s prior review and commentEffective Time (including any necessary or appropriate Company Board action). The Parent Buyer shall, or shall cause the Surviving Corporation to, at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Cancelled Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan2.3.
(f) As of the Effective Time, the The Company Stock Plans shall terminate take any and all rights actions necessary under any provision the Company’s Employee Stock Purchase Plan to prevent the commencement of any other plan, program or arrangement providing for new offering periods thereunder following the issuance or grant of any other interest in respect of date hereof and prior to the capital stock of the Company or any Subsidiary of the Company shall be cancelledClosing.
Appears in 1 contract
Company Stock Plans. (a) Each option The Company shall take such action as shall be required:
(i) to cause the vesting of any unvested options to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding ) to be accelerated in full effective immediately prior to the Effective Time shall become fully vested and be cancelled Time;
(ii) to effectuate the cancellation, as of the Effective Time, of all Company Stock Options outstanding immediately prior to the Effective Time (without regard to the exercise price of such Company Stock OptionOptions);
(iii) in exchange for to cause, pursuant to the Company Stock Plans, each outstanding Company Stock Option to represent as of the Effective Time solely the right to receive at the Effective Timereceive, in accordance with this Section 2.92.4, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock OptionOption and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, the Buyer, the Surviving Corporation or any other Person or any other consideration; and
(iv) to cause each share of Company Common Stock outstanding immediately prior to the Effective Time issued subject to vesting or other lapse restrictions pursuant to the Company Stock Plans or any applicable restricted stock award agreement to vest and become free of such restrictions immediately prior to the Effective Time and thereby entitle the holder of such share of Company Common Stock to receive the Merger Consideration (net of applicable taxes) in accordance with Section 2.1(c).
(b) Each holder of a Company Stock Option outstanding immediately prior to the Effective Time shall receive from the Purchaser or the ParentBuyer, in respect and in consideration of each Company Stock Option so cancelled, promptly as soon as practicable following the Effective Time (but in any event not later than 10 ten Business Days), an amount (net of applicable taxesTaxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, cancelled without any payment of consideration being payable in respect thereof, therefor and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and and, if applicable, payment for such Company Stock Options pursuant to this Section 2.9 2.4 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent Buyer shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.92.4.
(d) Each Restricted Share granted pursuant to The Company shall terminate its 2000 Employee Stock Purchase Plan (the “Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free ESPP”) in accordance with its terms as of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 1 contract
Samples: Merger Agreement (I Many Inc)
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Time, each then-outstanding and unexercised Company Stock Option) in exchange for Option shall, as of the Effective Time, automatically be canceled and converted into the right to receive at from the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the Surviving Corporation an amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) cash equal to the product of (i) the total number of vested shares of Company Common Stock (including vesting that would result from the consummation of the Merger) then underlying such Company Stock Option multiplied by (ii) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”)and subject to all applicable withholding pursuant to Section 2.11. In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelledcanceled, without any consideration being payable in respect thereof, and have no further force or effect.
(b) Effective as of immediately prior to the Effective Time, the vested portion of each Company RSU that is then outstanding shall automatically be canceled and converted into the right to receive from the Surviving Corporation an amount of cash equal to the product of (i) the total number of shares of Company Common Stock then underlying such vested portion of such Company RSU multiplied by (ii) the Merger Consideration, without any interest thereon and subject to all applicable withholding pursuant to Section 2.11; and the unvested portion of each Company RSU that is then outstanding shall automatically be canceled and converted into the right to receive from the Surviving Corporation an amount of cash equal to the product of (i) the total number of shares of Company Common Stock then underlying such unvested portion of such Company RSU that would vest as a result of the consummation of the Merger multiplied by (ii) the Merger Consideration, without any interest thereon and subject to all applicable withholding pursuant to Section 2.11.
(c) Effective as of immediately prior to the Effective Time, the vested portion of each Company PSU that is then outstanding shall automatically be canceled and converted into the right to receive from the Surviving Corporation an amount of cash equal to the product of (w) the total number of shares of Company Common Stock then underlying such vested portion of such Company PSU multiplied by (x) the Merger Consideration, without any interest thereon and subject to all applicable withholding pursuant to Section 2.11; and the unvested portion of each Company PSU that is then outstanding shall automatically be canceled and converted into the right to receive from the Surviving Corporation an amount of cash equal to the product of (y) the total number of shares of Company Common Stock then underlying such unvested portion of such Company PSU that would vest as a result of the consummation of the Merger multiplied by (z) the Merger Consideration, without any interest thereon and subject to all applicable withholding pursuant to Section 2.11.
(d) In accordance with the terms of the agreements identified on Section 2.9(d) of the Company Disclosure Schedule (the “Equity Replacement Agreements”), effective as of the Effective Time, the Persons set forth on Section 2.9(d) of the Company Disclosure Schedule shall become entitled to receive from the Surviving Corporation the amounts in cash set forth on Section 2.9(d) of the Company Disclosure Schedule provided that they remain employed by the Company as of immediately prior to the Effective Time or otherwise qualify for payment under the Equity Replacement Agreements.
(e) Effective as of the Effective Time, the Persons identified on Section 2.9(e) of the Company Disclosure Schedule shall become entitled to receive from the Surviving Corporation amounts in cash equal to the Merger Consideration multiplied by the respective numbers of Company RSU equivalents that would have been held by such Persons (as set forth on Section 2.9(e) of the Company Disclosure Schedule) and would have been vested as of the Effective Time under the vesting schedules set forth on Section 2.9(e) of the Company Disclosure Schedule, provided that such Persons, respectively, remain employed by the Company as of immediately prior to the Effective Time.
(f) The Parent shall cause the Surviving Corporation to make the payments contemplated by the foregoing Section 2.9(a), Section 2.9(b), Section 2.9(c), Section 2.9(d) and Section 2.9(e), as promptly as administratively practicable (and in any event within five (5) Business Days) after the Effective Time.
(g) As soon as reasonably practicable following the execution of this Agreement, the Company shall provide the Purchaser with a proposed communication to be sent by the Company via U.S. mail to each Person who is a holder of a Company Stock Options Option, a letter describing Company RSU, a Company PSU or an Equity Replacement Agreement (“Equity Award Communication”). The Equity Award Communication shall summarize the proposed treatment of such equity awards and payment for such Equity Replacement Agreements as provided in this Section 2.9. The Company Stock Options pursuant shall ensure that the Equity Award Communication complies with all applicable Law, including the Exchange Act, and the Company shall incorporate the reasonable changes to the Equity Award Communication that are proposed by the Purchaser.
(h) The Parent and the Company may agree to treat equity compensation held by Company employees subject to non-U.S. law in a manner other than that contemplated above in this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect necessary to withdraw his take into account applicable non-U.S. law or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his Tax or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Planemployment considerations.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 1 contract
Samples: Merger Agreement (Tangoe Inc)
Company Stock Plans. (a) Each option Prior to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans the Effective Time, the Company, through the Board of Directors of the Company (the “Company Stock PlansBoard”)) or an appropriate committee thereof, whether vested or unvestedshall (i) cancel, that is outstanding effective immediately prior to the Effective Time shall become fully Time, all outstanding options to purchase Company Common Stock (the “Company Stock Options”) awarded under any stock option plan or other equity-related plan or agreement of the Company (collectively, the “Company Stock Plans”); (ii) provide written notice of such cancellation to the holders of Company Stock Options; (iii) permit the holders of such Company Stock Options to exercise such awards to the extent such awards are then exercisable or otherwise vested and be cancelled as of through the point in time immediately prior to the Effective Time (without regard unless such awards by their terms expire prior to the exercise price of such point in time, in which case such awards shall expire at such earlier point in time); and (iv) terminate all Company Stock Option) Plans as of the point in exchange for the right time immediately prior to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment . Except as set forth in the amount immediately preceding sentence, the Company shall not alter or amend the terms and conditions of the Option Consideration (as defined below), if any, with respect to such any Company Stock OptionOptions.
(b) Each holder of a At the Effective Time, all outstanding restricted stock awards, restricted stock units, performance share awards, stock appreciation rights and other equity instruments (collectively, excluding Company Stock Option Options, the “Other Company Equity Awards”) shall vest in full in accordance with their terms and shall automatically be converted into the right to receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share and other amounts specified in this Article II, less, in the case of Company Common Stock over (B) stock appreciation rights, the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by thereof. The Buyer shall (ii) and shall cause the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisableSurviving Entity to), without any interest thereon (at all times from and after the “Option Consideration”)Effective Time, maintain sufficient liquid funds to satisfy their obligations to the holders of Other Company Equity Awards. In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person person who is a holder of an Other Company Stock Options Equity Award a letter describing the treatment of and payment for such Other Company Stock Options Equity Award pursuant to this Section 2.9 2.6(b) and providing instructions for use in obtaining payment for such Other Company Stock Options, which letter shall be subject to the Parent’s prior review and commentEquity Award. The Parent Surviving Entity or the Buyer shall at pay all times from and after the Effective Time maintain sufficient liquid funds amounts payable to satisfy its obligations to holders any holder of an Other Company Stock Options pursuant to Equity Award under this Section 2.9.
(d2.6(b) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to such holder promptly following the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Palomar Medical Technologies Inc)
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for the right to receive at At the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect all unexercised options to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of purchase shares of Company Common Stock subject to (the "Company Stock Options") then outstanding under the stock option plans listed in Section 1.10(a) of the Company Disclosure Schedule (together, the "Company Stock Plans") will be terminated or cancelled, as the case may be, in accordance with the terms of such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (Plans and the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, agreements entered into under such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following Plans. Prior to the execution of this AgreementEffective Time, the Company shall mail to each Person who is a holder of give any notice required by the Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock OptionsPlans, which letter notice shall be subject have been provided to the Parent’s Parent for its review prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations delivery, to holders of Company Stock Options pursuant to this Section 2.9.
of (di) Each Restricted Share granted pursuant to the acceleration in full of the vesting of such Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shallif applicable, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account effective as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP on or prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, (ii) the right of each holder of such Company Stock Options to exercise such Company Stock Options contingent upon the consummation of the Merger, (iii) if the Company should so elect, in its sole discretion, the right of each holder of such Company Stock Plans shall terminate Options to exercise such Company Stock Options on a net exercise basis, contingent upon the consummation of the Merger, and all rights under any provision (iv) the termination or cancellation, as the case may be, upon the Closing of any other planunexercised Company Stock Options.
(b) The Company and Parent shall each, program or arrangement providing for to the issuance or grant extent permitted by applicable Law, take all action reasonably necessary to cause all dispositions of any other interest in respect of the capital stock equity securities of the Company (including Company Stock Options) or acquisitions of equity securities of Parent (including the Warrants and any Subsidiary options to acquire Parent Common Stock that may be granted by Parent) by each individual who (i) is a director or officer of the Company shall Company, or (ii) at the Effective Time will become a director or officer of Parent, to be cancelledexempt pursuant to Rule 16b-3 under the Exchange Act.
Appears in 1 contract
Company Stock Plans. (a) Each option The Company shall take such action as shall be required:
(i) to cause the vesting of any unvested options to purchase Company Common Stock (whether or not vested, “Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding ) to be accelerated in full effective immediately prior to the Effective Time shall become fully vested and be cancelled Time;
(ii) to effectuate the cancellation, as of the Effective Time, of all Company Stock Options outstanding immediately prior to the Effective Time (without regard to the exercise price of such Company Stock OptionOptions);
(iii) in exchange for to cause, pursuant to the Company Stock Plans, each outstanding Company Stock Option to represent as of the Effective Time solely the right to receive at the Effective Timereceive, in accordance with this Section 2.92.3, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock OptionOption and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, the Buyer, the Surviving Corporation or any other Person or any other consideration; and
(iv) to cause the vesting of any shares of Common Stock subject to vesting or other lapse restrictions pursuant to any Company Stock Plan (collectively, the “Restricted Shares”) which is outstanding immediately prior to the Effective Time (as such Company Stock Plan may be amended prior to the Effective Time in accordance with the terms hereof).
(b) Each holder of a Company Stock Option shall receive from the Purchaser Buyer or the ParentSurviving Corporation, in respect and in consideration of each Company Stock Option so cancelled, promptly as soon as practicable following the Effective Time (but in any event not later than 10 five (5) Business Days), an amount (net of applicable taxes, including any amounts required to be deducted or withheld pursuant to Section 2.2(e)) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable)Option, without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, cancelled without any consideration being payable in respect thereof, payment and have be of no further force or effect.
(c) Each holder of a Restricted Share shall receive from the Buyer or the Surviving Corporation, in respect and in consideration of each Restricted Share, as soon as practicable following the Effective Time (but in any event not later than five (5) Business Days), an amount (net of applicable taxes including any amounts deducted or withheld pursuant to Section 2.2(e)) equal to the product of (i) the Merger Consideration per share of Company Common Stock, multiplied by (ii) the total number of Restricted Shares held by such holder, without any interest thereon (the “Restricted Share Consideration”), and the holder shall cease to have any rights with respect to any such Restricted Shares.
(d) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options and Restricted Shares a letter describing the treatment of and payment for such Company Stock Options and Restricted Shares pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review Options and commentRestricted Shares. The Parent Buyer shall at all times from and after the Effective Time and until such time as the obligations have been satisfied maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options and Restricted Shares pursuant to this Section 2.92.3.
(de) Each Restricted Share granted pursuant to The Company shall terminate its 1992 Employee Stock Purchase Plan and its UK Employee Stock Purchase Plan (the ”Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free ESPPs”) in accordance with their terms as of any vesting or other lapse restrictions immediately prior to the Effective Time.
(ef) If The Surviving Corporation shall, as soon as practicable following the Effective Time occurs on or before the “Exercise Date” relating (but in any event not later than five (5) Business Days), irrevocably set aside and contribute to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined trust fund established by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means fund its obligations under the Company’s Restated 1999 Employee Stock Purchase First Amendment and Restatement of the Xxxxx, Inc. Deferred Compensation Plan.
, as amended, (f) As the “Deferred Compensation Plan”), an amount sufficient to cause such trust to hold assets equal in value to the accrued benefits in the aggregate for all of the participants and beneficiaries of the Deferred Compensation Plan determined as of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 1 contract
Samples: Merger Agreement (Keane, Inc.)
Company Stock Plans. (a) Each option At the Effective Time, by virtue of the Merger and without any action on the part of the holder of any Company Option, each Company Option that is outstanding immediately prior to purchase the Effective Time shall be canceled and terminated at the Effective Time and converted into the right to receive the Common Stock Merger Consideration with respect to the number of shares of Company Common Stock (“that would be issuable upon a net exercise of such Company Stock Options”) granted under any stock option plans or other equity-related plans Option assuming the market value of the Company (Common Stock at the “time of such exercise were equal to the value of the Common Stock Merger Consideration as of the close of trading on the trading day immediately prior to the Effective Time. For purposes of clarity, any Company Stock Plans”), whether vested or unvested, Option with a per-share exercise price that is greater than or equal to the value of the Common Stock Merger Consideration as of the close of trading on the trading day immediately prior to the Effective Time shall be canceled and terminated as of the Effective Time, and no payment shall be made with respect thereto or in respect thereof. Any Common Stock Merger Consideration payable in respect of Company Options pursuant to this Section 2.3(a) shall be paid as soon after the Closing Date as shall be practicable and in any event within fifteen (15) days thereafter.
(b) At the Effective Time, by virtue of the Merger and without any action on the part of the holder of any RSU, each RSU outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as (except that with respect to any RSU which by the terms of immediately prior the award agreement pursuant to the Effective Time (without regard to the exercise price which it was granted provides for a lesser percentage of such Company Stock Option) in exchange for RSU to become vested upon the right consummation of the Merger, such RSU shall only become vested as to receive such lesser percentage), and then shall be canceled and terminated at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in and the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company such vested RSU shall be entitled to receive the Common Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per for each share of Company Common Stock over (B) into which the exercise price per share vested portion of Company the RSU would otherwise be convertible. The Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being Consideration payable in respect thereof, of RSUs pursuant to this Section 2.3(b) shall be paid as soon after the Closing Date as shall be practicable and have no further force or effectin any event within fifteen (15) days thereafter.
(c) As soon as practicable following Prior to the execution of this AgreementEffective Time, the Company shall mail take all actions necessary to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject (i) make any amendments to the Parent’s prior review terms of, and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to give any notices required under, the Company Stock Plans and obtain all consents (including all consents necessary to provide that applicable RSUs and Options outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting be converted at the Effective Time in the manner described above) that, in each case, are necessary to give effect to the transactions contemplated by this Section 2.3, (ii) terminate all Company Stock Plans, such termination to be effective at or other lapse restrictions immediately prior to before the Effective Time, and (iii) ensure that the Company will not at the Effective Time be bound by any Options, stock appreciation rights, or other agreements which would entitle any Person, other than Parent and its Subsidiaries, to own any capital stock of the Surviving Corporation or to receive any payment in respect thereof (other than the payment of Common Stock Merger Consideration as provided in Section 2.3(a)). Notwithstanding anything to the contrary, payment may be withheld in respect of any Company Option or RSU until any necessary consents are obtained.
(d) No fractional shares of Parent Common Stock shall be issued in connection with the Merger to holders of Company Options or RSUs, but in lieu thereof each holder otherwise entitled to a fractional share of Parent Common Stock pursuant to Section 2.3(a)(ii) or Section 2.3(b) (after aggregating all fractional shares of Parent Common Stock issuable to such holder in respect of all Company Options or shares of Company Common Stock issued upon conversion of any vested RSU owned by such holder at the Effective Time) will be entitled to receive a cash payment in lieu of such fractional share of Parent Common Stock in an amount determined by multiplying the fractional share of Parent Common Stock to which such holder would otherwise be entitled by the Parent Common Stock Market Price. No such holder shall be entitled to dividends, voting rights or any other rights in respect of any fractional share
(e) If the Effective Time occurs on or before the “Exercise Date” relating The Company shall take such steps as may be reasonably requested by any party hereto to cause dispositions of Company equity securities (including derivative securities) pursuant to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to Transactions by each holder of an Option, and to the extent that such holder does not elect to withdraw his individual who is a director or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock officer of the Company to be exempt under Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “Exchange Act”) in accordance with that certain No-Action Letter dated January 12, 1999 issued by the Securities and Exchange Commission (the “SEC”) regarding such matters. Parent shall take such steps as may be reasonably requested by any party hereto to cause the receipt of Parent equity securities (including derivative securities) pursuant to the Transactions by each individual who is a director or any Subsidiary officer of the Company shall to be cancelled.exempt under Rule 16b-3 promulgated under the Exchange Act in accordance with that certain No-Action Letter dated January 12, 1999 issued by the SEC regarding such matters
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Company Stock Plans. (a) Each Immediately after the Acceptance Date, each holder of a then outstanding option to purchase Company Common Stock (“Company Stock Options”) granted under any employee stock option plans or other equity-related plans of the Company compensation plan or arrangement (the “Company Stock Plans”"Options"), whether vested or unvestednot then exercisable or fully vested, that is outstanding immediately prior and each holder of the warrants to purchase an aggregate of 202,597 Shares issued to certain parties (collectively, the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for the right to receive at the Effective Time"Warrants"), shall, in accordance with this Section 2.9settlement thereof, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect receive for each Share subject to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser , or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days)Warrant, an amount (net of any applicable taxeswithholding tax) in cash equal to the product of (i) difference between the excess, if any, of (A) Offer Price and the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the Share exercise price of any Company Stock Option such Option, or Warrant, to the extent the Offer Price is equal to or greater than the Merger per Share exercise price of such Option or Warrant (such excess amount with respect to Options being hereinafter referred to as the "Option Consideration," and such amount with respect to the Warrants being hereinafter referred to as the "Warrant Consideration"); provided, however, that with respect to any person subject to Section 16(a) of the Exchange Act, any such Company Stock Option amount shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As paid as soon as practicable following after the execution first date payment can be made without liability to such person under Section 16(b) of this Agreementthe Exchange Act. Prior to the Acceptance Date, the Company shall mail use its reasonable efforts to each Person who is a holder obtain all necessary consents or releases from holders of Company Stock Options a letter describing and holders of Warrants, and take any such other action as may be reasonably necessary to give effect to the treatment of and payment transactions contemplated by this Section 2.4 (except for such Company Stock Options pursuant action that may require the approval of the Company's stockholders) and to this Section 2.9 otherwise cause each Option, and providing instructions for use in obtaining payment for such Company Stock Optionseach Warrant, which letter shall to be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant surrendered to the Company Stock Plans outstanding immediately prior to and cancelled at the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Acceptance Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder . The surrender of an Option, and or Warrant, to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelleddeemed a release of any and all rights the holder had or may have had in such Option or Warrant, other than the right to receive the Option Consideration or Warrant Consideration. Parent shall provide the Company with sufficient funds to make the payments required by this Section 2.4.
(b) Notwithstanding anything in this Agreement to the contrary, a vote of a majority of the Independent Directors shall be required to amend this Section 2.4 in any manner adverse to the holders of Options or Warrants described herein.
Appears in 1 contract
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Time, each then-outstanding and unexercised Company Stock Option) Option shall vest in exchange for full and automatically be canceled and converted into the right to receive at from the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the Surviving Corporation an amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) cash equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to then underlying such Company Stock Option multiplied by (whether or not then vested or exercisable)ii) the excess, without any interest thereon (if any, of the “Option Consideration”)Merger Consideration over the exercise price per share of such Company Stock Option. In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(b) Effective as of immediately prior to the Effective Time, each Company RSU that is then outstanding and unvested shall vest in full and automatically be canceled and converted into the right to receive from the Company an amount of cash from the Company equal to the product of (i) the total number of shares of Company Common Stock then underlying such Company RSU multiplied by (ii) the Merger Consideration.
(c) Effective as of immediately prior to the Effective Time, each Company PSU that is then outstanding and unvested shall vest with respect to the number of shares of Company Common Stock that would have been earned under such Company PSU based on the methodology set forth in the applicable Company PSU award agreement (as in effect on the date hereof) and in Section 2.3 of the Company Disclosure Schedule (the “Number of Vested PSUs”) and shall automatically be canceled and converted into the right to receive from the Company an amount of cash from the Company equal to the product of (i) the Number of Vested PSUs multiplied by (ii) the Merger Consideration.
(d) The Parent shall (i) cause the Company and the Surviving Corporation, as applicable, to make the payments (without interest) contemplated by the foregoing Section 2.3(a), Section 2.3(b) and Section 2.3(c) as promptly as practicable (and in any event within five (5) Business Days) after the Effective Time, and (ii) cause the Company and the Surviving Corporation, as applicable, to maintain at all times from and after the Effective Time sufficient liquid funds to satisfy its obligations pursuant to Section 2.3(a), Section 2.3(b) and Section 2.3(c).
(e) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options Options, Company RSUs or Company PSUs a letter describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such therefor. The Company Stock Options, which letter shall be subject provide the Parent with a reasonable opportunity to review the notices described in this Section 2.3(e) in advance of providing said notices and the Company shall consider in good faith any reasonable comments provided by the Parent to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9Company.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(ef) If the Effective Time occurs on or before the “Exercise Date” relating to last business day of a Payment Period (as such term is defined in the applicable “Plan Period” Company ESPP) in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) options then outstanding with respect to such Plan Payment Period, the Company Board shall, prior to such the Effective Time, take such actions as are necessary to provide that all outstanding Options options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Optionoption, and each holder of an option shall have the right to the extent that exercise such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised option in full on the Closing Date (or, if not practicable, on the Business Day immediately preceding the Closing Date) based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The If the Effective Time occurs after the last business day of a Payment Period in effect as of the date of this Agreement (i.e., a new Payment Period has commenced), the Company Board shall terminate the Company ESPP as of a date prior to the Closing Date and, as promptly as reasonably practicable following such termination, all payroll deductions pursuant to the Company ESPP shall be paid out to the participating employees under the Company ESPP. In any event, the Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(fg) As of the Effective Time, The Parent and the Company Stock Plans shall terminate and all rights under any provision of any may agree to treat equity compensation held by Company employees subject to non-U.S. law in a manner other plan, program than that contemplated above in this Section 2.3 to the extent necessary to take into account applicable non-U.S. law or arrangement providing for the issuance Tax or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelledemployment considerations.
Appears in 1 contract
Samples: Merger Agreement (Analogic Corp)
Company Stock Plans. (a) Each Immediately after the Acceptance Date, each holder of a then outstanding option to purchase Company Common Stock (“Company Stock Options”) granted under any employee stock option plans or other equity-related plans of the Company compensation plan or arrangement (the “Company Stock Plans”"Options"), whether vested or unvestednot then exercisable or fully vested, that is outstanding immediately prior and each holder of the warrants to purchase an aggregate of 202,597 Shares issued to certain parties (collectively, the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for the right to receive at the Effective Time"Warrants"), shall, in accordance with this Section 2.9settlement -------- thereof, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect receive for each Share subject to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser , or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days)Warrant, an amount (net of any applicable taxeswithholding tax) in cash equal to the product of (i) difference between the excess, if any, of (A) Offer Price and the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the Share exercise price of any Company Stock Option such Option, or Warrant, to the extent the Offer Price is equal to or greater than the Merger per Share exercise price of such Option or Warrant (such excess amount with respect to Options being hereinafter referred to as the "Option Consideration," and such amount with respect to the -------------------- Warrants being hereinafter referred to as the "Warrant Consideration"); --------------------- provided, however, that with respect to any person subject to Section 16(a) of -------- ------- the Exchange Act, any such Company Stock Option amount shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As paid as soon as practicable following after the execution first date payment can be made without liability to such person under Section 16(b) of this Agreementthe Exchange Act. Prior to the Acceptance Date, the Company shall mail use its reasonable efforts to each Person who is a holder obtain all necessary consents or releases from holders of Company Stock Options a letter describing and holders of Warrants, and take any such other action as may be reasonably necessary to give effect to the treatment of and payment transactions contemplated by this Section 2.4 (except for such Company Stock Options pursuant action that may require the approval of the Company's stockholders) and to this Section 2.9 otherwise cause each Option, and providing instructions for use in obtaining payment for such Company Stock Optionseach Warrant, which letter shall to be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant surrendered to the Company Stock Plans outstanding immediately prior to and cancelled at the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Acceptance Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder . The surrender of an Option, and or Warrant, to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelleddeemed a release of any and all rights the holder had or may have had in such Option or Warrant, other than the right to receive the Option Consideration or Warrant Consideration. Parent shall provide the Company with sufficient funds to make the payments required by this Section 2.4.
(b) Notwithstanding anything in this Agreement to the contrary, a vote of a majority of the Independent Directors shall be required to amend this Section 2.4 in any manner adverse to the holders of Options or Warrants described herein.
Appears in 1 contract
Samples: Merger Agreement (North Face Inc)
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the Time, each then-outstanding and unexercised Company Stock Option having an exercise price of equal to or less than $1.23 (each such Company Stock Option, a “Cash-Out Option”) shall vest in exchange for full and automatically be canceled and converted into the right to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount for each share of the Option Consideration (as defined below), if any, with respect Common Stock subject to such Company Stock Cash-Out Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (Bwith the Cash Consideration being payable by the Surviving Corporation) minus (ii) the exercise price per share of such Cash-Out Option and less applicable tax withholding.
(b) Effective as of five (5) Business Days prior to the Closing Date, or such other date occurring prior to the Closing Date as may be determined by the Board in its discretion (such date, the “Acceleration Date”), each then-outstanding and unexercised Company Common Stock subject to Option having an exercise price greater than $1.23 (each such Company Stock Option, multiplied an “Exercisable Pre-Close Option”) shall vest in full and become exercisable up to and through the close of regular trading on the Nasdaq Stock Market on the second Business Day following the Acceleration Date (such second Business Day, the “Last Exercise Date”) in accordance with the terms and conditions of such Exercisable Pre-Close Option in effect on the date hereof, and such Exercisable Pre-Close Option shall terminate and be of no further force or effect as of immediately prior to Closing if not exercised by the holder on or prior to the close of regular trading on the Last Exercise Date.
(iic) Effective as of immediately prior to the Effective Time, each Company RSU that is then outstanding and unvested shall vest in full and automatically be canceled and converted into the right to receive (i) from the Surviving Corporation an amount of cash, equal to the product of (A) the total number of shares of Company Common Stock subject to then underlying such Company RSU multiplied by (B) the Cash Consideration and (ii) one (1) CVR for each share of Company Common Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, underlying such Company Stock Option shall be cancelledRSU, without any consideration being payable in respect thereofeach case, and have no further force or effectless applicable withholding.
(cd) The Parent shall (i) cause the Surviving Corporation to make the payments contemplated by the foregoing Section 2.8(a) and Section 2.8(c) as promptly as practicable (and in any event within ten (10) Business Days) after the Effective Time and (ii) cause the Surviving Corporation to maintain at all times from and after the Effective Time sufficient liquid funds to satisfy its obligations pursuant to Section 2.8(a) and Section 2.8(c).
(e) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options or Company RSUs a letter describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 2.8 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9therefor.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(ef) If the Effective Time occurs on or before the “Exercise Date” relating to last business day of a Plan Period (as such term is defined in the applicable “Plan Period” Company ESPP) in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) options then outstanding with respect to such Plan Period, the Company Board shall, prior to such the Effective Time, take such actions as are necessary to provide that all outstanding Options options shall be cancelled as of the Closing Date; provided, provided that notice of such cancellation shall be given to each holder of an Optionoption, and each holder of an option shall have the right to the extent that exercise such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised option in full on the Closing Date (or, if not practicable, on the Business Day immediately preceding the Closing Date) based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The If the Effective Time occurs after the last business day of a Plan Period in effect as of the date of this Agreement (i.e., a new Plan Period would have commenced after the date of this Agreement), the Company Board shall terminate the Company ESPP as of a date prior to the Closing Date and, as promptly as reasonably practicable following such termination, all payroll deductions pursuant to the Company ESPP shall be paid out to the participating employees under the Company ESPP. In any event, the Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(fg) As of the Effective Time, The Parent and the Company Stock Plans shall terminate and all rights under any provision of any may agree to treat equity compensation held by Company employees subject to non-U.S. law in a manner other plan, program than that contemplated above in this Section 2.8 to the extent necessary to take into account applicable non-U.S. law or arrangement providing for the issuance Tax or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelledemployment considerations.
Appears in 1 contract
Samples: Merger Agreement (Epizyme, Inc.)
Company Stock Plans. (a) Each option Except as otherwise agreed upon in writing between the holder and Parent, and subject to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans the last sentence of the Company (the “Company Stock Plans”this Section 2.3(a), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled effective as of immediately prior to the Effective Time (without regard to the exercise price of such Time, each then-outstanding Company Stock Option) in exchange for Option shall automatically be canceled and converted into the right to receive at from the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the Surviving Corporation (i) an amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) cash equal to the product of (iA) the total number of shares of Company Common Stock then subject to such Company Stock Option, multiplied by (B) the excess, if any, of (A) the Merger Per Share Cash Consideration over the per share of Company Common Stock over (B) the exercise price per of such Company Stock Option and (ii) one DAP Right in respect of each share of Company Common Stock subject to such Company Stock Option, multiplied . Parent shall cause the Surviving Corporation to pay the aggregate amount payable by (ii) the total number Surviving Corporation to the holders of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable)Options pursuant to the preceding sentence, without any interest thereon and subject to all applicable withholding, no later than the later of (A) five (5) Business Days after the “Option Consideration”)Merger Closing Date and (B) the date of the Company’s first regularly scheduled payroll after the Merger Closing Date, provided that in the case of the DAP Right, such portion of the Merger Consideration shall only be payable if and to the extent provided in the DAP Rights Agreement. In the event that the per share exercise price of any Company Stock Option is equal to or greater than the Merger Per Share Cash Consideration, such Company Stock Option shall be cancelledcanceled, without any consideration being payable in respect thereof, and have no further force or effect.
(b) Except as otherwise agreed upon in writing between the holder and Parent, effective as of immediately prior to the Effective Time, each Company DSU that is then-outstanding shall automatically be canceled and converted into the right to receive from the Surviving Corporation (i) an amount of cash equal to the product of (A) the total number of shares of Company Common Stock subject to such underlying such Company DSU (including any shares of Company Common Stock subject to dividend equivalent units credited thereon) multiplied by (B) the Per Share Cash Consideration and (ii) one DAP Right in respect of each share of Company Common Stock subject to such Company DSU (including any shares of Company Common Stock subject to dividend equivalent units credited thereon). Parent shall cause the Surviving Corporation to pay the Merger Consideration applicable to such Company DSU pursuant to the preceding sentence, without any interest thereon and subject to all applicable withholding, no later than the later of (x) five (5) Business Days after the Merger Closing Date and (y) the date of the Company’s first regularly scheduled payroll after the Merger Closing Date; provided that, notwithstanding the foregoing, any such amounts in respect of a Company DSU shall not be paid earlier than the earliest time permitted under Section 409A of the Code; provided, further, that in the case of the DAP Right, such portion of the Merger Consideration shall only be payable if and to the extent provided in the DAP Rights Agreement.
(c) As soon Except as practicable following otherwise agreed upon in writing between the execution holder and Parent, effective as of immediately prior to the Effective Time:
(i) each Company RSU that is then-outstanding and will be vested, by its terms, on or before the Merger Closing Date (including as a result of the Merger Closing of the Merger), but not yet settled shall automatically be canceled and converted into the right to receive from the Surviving Corporation (A) an amount of cash equal to the product of (1) the total number of shares of Company Common Stock then subject to such vested Company RSU (including any shares of Company Common Stock subject to dividend equivalent units credited thereon), multiplied by (2) the Per Share Cash Consideration and (B) one DAP Right in respect of each share of Company Common Stock subject to such vested Company RSU (including any shares of Company Common Stock subject to dividend equivalent units credited xxxxxxx). Parent shall cause the Surviving Corporation to pay the Merger Consideration applicable to such Company RSU pursuant to the preceding sentence, without any interest thereon and subject to all applicable withholding, no later than the later of (x) five (5) Business Days after the Merger Closing Date and (y) the date of the Company’s first regularly scheduled payroll after the Merger Closing Date; provided that in the case of the DAP Right, such portion of the Merger Consideration shall only be payable if and to the extent provided in the DAP Rights Agreement; and
(ii) each Company RSU that is then-outstanding and will not be vested, by its terms, on or before the Merger Closing Date shall automatically be canceled and converted into the contingent right to receive from the Surviving Corporation (A) an amount of cash equal to the product of (1) the total number of shares of Company Common Stock subject to such unvested Company RSU (including any shares of Company Common Stock subject to dividend equivalent units credited thereon), multiplied by (2) the Per Share Cash Consideration and (B) one DAP Right in respect of each share of Company Common Stock subject to such unvested Company RSU (including any shares of Company Common Stock subject to dividend equivalent units credited thereon); provided that such cash payment and any amounts payable with respect to such DAP Right shall not be payable at the Effective Time but shall instead be subject to the holder of such Company RSU being in continuous service to the Surviving Corporation as an employee or consultant until the date on which the original vesting conditions applicable to the underlying Company RSU, including, and taking into account, any accelerated vesting provisions set forth therein, are satisfied (such date, the “RSU Vesting Date”). The applicable Parent Entity shall pay the Merger Consideration applicable to such Company RSU to the holder of such Company RSU, without any interest thereon and subject to all applicable withholding, no later than the later of (x) five (5) Business Days after the RSU Vesting Date and (y) the date of the Company’s first regularly scheduled payroll after the RSU Vesting Date; provided that, in the case of the DAP Right, such portion of the Merger Consideration shall only be payable if and to the extent provided in the DAP Rights Agreement.
(d) Except as otherwise agreed upon in writing between the holder and Parent, effective as of immediately prior to the Effective Time:
(i) each Company Performance Share Award that is then-outstanding and unvested and that is held by a former employee of the Company (as determined immediately prior to the Effective Time) shall automatically be canceled and converted into the right to receive from the Surviving Corporation (A) an amount of cash equal to the product of (1) the target number of shares of Company Common Stock subject to such Company Performance Share Award (including any shares of Company Common Stock underlying dividend equivalent units credited thereon), as pro-rated in accordance with the terms of the applicable Company Performance Share Award Agreement (but only to the extent that the number of shares of Company Common Stock subject to such Company Performance Share Award was not previously pro-rated in connection with the holder’s qualifying termination of employment), multiplied by (2) the Per Share Cash Consideration and (B) one DAP Right in respect of each share of Company Common Stock subject to such Company Performance Share Award (calculated based on the target number of shares of Company Common Stock subject to such Company Performance Share Award and including any shares of Company Common Stock underlying dividend equivalent units credited thereon, as pro-rated in accordance with the preceding clause (A)). Parent shall cause the Surviving Corporation to pay the Merger Consideration applicable to such Company Performance Share Award pursuant to the preceding sentence, without any interest thereon and subject to all applicable withholding, upon the later of (x) five (5) Business Days after the Merger Closing Date and (y) the date of the Company’s first regularly scheduled payroll after the Merger Closing Date; provided that in the case of the DAP Right, such portion of the Merger Consideration shall only be payable if and to the extent provided in the DAP Rights Agreement; and
(ii) each Company Performance Share Award that is then-outstanding and unvested and that is held by a person who is an employee of the Company (as determined immediately prior to the Effective Time) shall automatically be canceled and converted into the contingent right to receive from the Surviving Corporation (A) an amount of cash equal to the product of (1) the target number of shares of Company Common Stock subject to such Company Performance Share Award (including any shares of Company Common Stock underlying dividend equivalent units credited thereon), multiplied by (2) the Per Share Cash Consideration and (B) one DAP Right in respect of each share of Company Common Stock subject to such Company Performance Share Award (calculated based on the target numbers of shares of Company Common Stock subject to such Company Performance Share Award and including any shares of Company Common Stock underlying dividend equivalent units credited thereon); provided that such cash payment and any amounts payable with respect to such DAP Right shall not be payable at the Effective Time but shall instead be subject to the holder of such Company Performance Share Award being in continuous service to the Surviving Corporation as an employee or consultant until the date on which the original time-based vesting conditions applicable to the underlying Company Performance Share Award, including, and taking into account, any accelerated vesting provisions set forth therein (taking into account any proration provisions on a qualifying termination), are satisfied (such date, the “Performance Share Vesting Date”). The applicable Parent Entity shall pay the Merger Consideration applicable to such Company Performance Share Award to the holder of such Company Performance Share Award, without interest thereon and subject to all applicable withholding, no later than the later of (x) five (5) Business Days after the Performance Share Vesting Date and (y) the date of the Company’s first regularly scheduled payroll after the Performance Share Vesting Date; provided that, in the case of the DAP Right, such portion of the Merger Consideration shall only be payable if and to the extent provided in the DAP Rights Agreement.
(e) The applicable Parent Entities shall maintain at all times from and after the Effective Time sufficient liquid funds to satisfy their respective obligations pursuant to Section 2.3(a), Section 2.3(b), Section 2.3(c) and Section 2.3(d). The DAP Rights subject to the awards as described in this Section 2.3 shall be paid in accordance with, and to the extent provided in, Section 2.4(a)(vi)(B) of the DAP Rights Agreement.
(f) Prior to the Effective Time, (i) the Company shall mail provide notice to each Person who is a holder of Company Stock Options a letter Options, Company DSUs, Company RSUs or Company Performance Share Awards describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 2.3, and providing instructions (ii) the Company Board shall take all such actions as are required to provide for use in obtaining payment for the treatment of such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options equity awards pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to 2.3 and the termination of the Company Stock Plans outstanding conditioned upon, and effective immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to after, the Effective Time.
(eg) If Parent and the Effective Time occurs on or before the “Exercise Date” relating Company may agree to treat equity compensation held by Company employees subject to non-U.S. law in a manner other than that contemplated above in this Section 2.3 to the extent necessary or advisable to take into account applicable “Plan Period” non-U.S. law or Tax or employment considerations.
(h) The only offering period in effect as of the date of this Agreement (as such terms are defined in ends on December 31, 2025. Any outstanding options granted under the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding ESPP with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options offering period shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP exercised no later than immediately prior to the Effective Time. As soon as practicable following the date of this Agreement, then the Company Board shall take all such Option shall actions as are required to provide that, (i) no new offering period will commence, nor will the existing offering period be deemed extended, following the date of this Agreement; (ii) no new individuals will be permitted to have been exercised enroll in full on the Closing Date based on payroll deductions then credited Company ESPP following the date of this Agreement; (iii) with respect to the offering period in effect as of the date of this Agreement, no existing participant will be permitted to increase his or her account rate of deductions and purchases following the date of this Agreement; and (iv) no shares of Company Common Stock will be issued under the Company ESPP except with respect to the offering period in effect as of a the date determined by of this Agreement, as set forth above. In any event, the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
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Company Stock Plans. (a) Each option Immediately prior to the Effective Time, each share of Company Common Stock granted subject to time-based, performance or other vesting or lapse restrictions pursuant to any Company Stock Plan (as defined in Section 2.3(b) below) (each, a “Restricted Share”), that is outstanding and subject to such restrictions immediately prior to the Effective Time shall automatically vest, and the Company’s reacquisition right with respect to each Restricted Share shall lapse, and the holder thereof shall, subject to this Article II (including Section 2.2(f)), be entitled to receive the Merger Consideration with respect to each such Restricted Share.
(b) The Company shall take such action as shall be required:
(i) to cause the vesting of any unvested options to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding ) to be accelerated in full effective immediately prior to the Effective Time shall become fully vested and be cancelled Time; and
(ii) to cause each outstanding Company Stock Option to represent as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for solely the right to receive at the Effective Timereceive, in accordance with this Section 2.92.3 and subject to Section 2.2(f), a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock OptionOption and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, the Buyer, the Surviving Corporation or any other person or any other consideration.
(bc) Each holder of a Company Stock Option so cancelled shall receive from the Purchaser Buyer or the ParentSurviving Corporation, in respect and in consideration of each such Company Stock Option so cancelledOption, promptly as soon as practicable following the Effective Time (but in any event not later than 10 three Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(cd) As soon as practicable following Following the execution of this Agreement, (i) if and as required by the Company Stock Plans, the Company shall mail to each Person person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such Company Stock Options, which letter Options and (ii) the Company shall be subject take all actions necessary or Table of Contents appropriate to terminate the Parent’s prior review and commentCompany Stock Plans as of the Effective Time (including any necessary or appropriate Company Board action). The Parent Buyer shall, or shall cause the Surviving Corporation to, at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.92.3.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
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Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Acceptance Time, each then-outstanding and unexercised Company Stock Option) Option shall vest in exchange for full and automatically be canceled and converted into the right to receive at from the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the Surviving Corporation an amount of the Option Consideration (as defined below)cash, if anyless applicable Tax withholding, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to then underlying such Company Stock Option multiplied by (whether or not then vested or exercisable)ii) the excess, without any interest thereon (if any, of the “Option Consideration”)Merger Consideration over the exercise price per share of such Company Stock Option. In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(b) Effective as of immediately prior to the Acceptance Time, each Company RSU that is then outstanding and unvested shall vest in full (including, in the case of Company PRSUs, by virtue of the deemed achievement of any performance-based vesting conditions based on target performance) and automatically be canceled and converted into the right to receive from the Surviving Corporation an amount of cash, less applicable Tax withholding, from the Surviving Corporation equal to the product of (i) the total number of shares of Company Common Stock then underlying such Company RSU (determined, for the avoidance of doubt, in the case of Company PRSUs, by reference to the number of shares of Company Common Stock then underlying such Company PRSU based on the achievement of target performance) multiplied by (ii) the Merger Consideration.
(c) As soon The Parent shall (i) cause the Surviving Corporation to make the payments contemplated by the foregoing Section 2.8(a) and Section 2.8(b) as promptly as practicable following (and in any event within ten (10) Business Days) after the Effective Time and (ii) cause the Surviving Corporation to maintain at all times from and after the Effective Time sufficient liquid funds to satisfy its obligations pursuant to Section 2.8(a) and Section 2.8(b).
(d) Following the execution of this Agreement, if and as required by the Company Stock Plans, the Company shall mail to each Person who is a holder of Company Stock Options or Company RSUs a letter describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 2.8 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Timetherefor.
(e) If the Effective Time occurs is anticipated to occur on or before the last Business Day of an Offering Period (as such term is defined in the Company ESPP), the Company shall take such actions as may be necessary with respect to the Company ESPP to (i) cause any offering underway as of the date of this Agreement to be terminated as of no later than five Business Days prior to the Closing Date (the “Final Exercise Date” relating ”); (ii) make any pro-rata adjustments that may be necessary to reflect any shortened Offering Period, but otherwise treat any such shortened Offering Period as a fully effective and completed Offering Period for all purposes under the Company ESPP; provided that, for the avoidance of doubt, any Offering Period that has not commenced prior to Closing, will be terminated and no purchase of shares under the Company ESPP will be permitted with respect to that Offering Period; (iii) cause each Company ESPP participant’s share purchase right under the Company ESPP outstanding as of the Final Exercise Date to be exercised as of the Final Exercise Date; and (iv) terminate the Company ESPP as of the Final Exercise Date; provided, however, that the termination of the Company ESPP shall be subject to the applicable “Plan Period” consummation of the Merger. If the Effective Time occurs after the last Business Day of an Offering Period in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect i.e., a new Offering Period has commenced or would be scheduled to such Plan Periodcommence), the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of either suspend the Closing Date, provided that notice of such cancellation commencement or shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in terminate the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by prior to the Closing Date and, as promptly as reasonably practicable following such termination, all payroll deductions pursuant to the Company BoardESPP shall be paid out to the participating employees under the Company ESPP. In any event, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, The Parent and the Company Stock Plans shall terminate and all rights under any provision of any may, to the extent mutually agreed, treat equity compensation held by Company Employees subject to non-U.S. law in a manner other plan, program than that contemplated above in this Section 2.8 to the extent necessary to take into account applicable non-U.S. law or arrangement providing for the issuance Tax or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelledemployment considerations.
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Company Stock Plans. (a) Each option Prior to purchase the Effective Time, the Company Common shall take all actions (including, if appropriate, amending the terms of the relevant Company Stock Plan) that are necessary to give effect to the transactions contemplated by Section 1.12. The Company will take all steps necessary: (“i) to ensure that neither the Company nor any of its Subsidiaries is or will be bound by any Company Stock Options”) granted under , other options, warrants, rights or agreements which would entitle any Person to acquire any capital stock option plans or other equity-related plans of the Company Surviving Corporation or any of its subsidiaries or to receive any payment in respect thereof (the “except for cash payments to be made as provided in Section 1.12(a)), (ii) to cause such Company Stock Plans”)Options and any other options, whether vested warrants, rights or unvested, that is outstanding agreements which would entitle any Person to acquire any capital stock of the Surviving Corporation or any of its Subsidiaries or to receive any payment in respect thereof to be canceled immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior or to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for the right to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to cancellation as provided in Section 1.12(a), and (iii) to cause the Parent’s prior review Company to claim any applicable federal and comment. The Parent shall at all times from and after state income tax deductions for the Effective Time maintain sufficient liquid funds to satisfy its obligations payments to holders of Company Stock Options pursuant to this in accordance with Section 2.91.12 hereof so that any tax benefits accruing therefrom will be for the account of the Surviving Corporation.
(db) Each Restricted Share granted pursuant to Outstanding purchase rights under the Company Company’s Employee Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Purchase Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as exercised upon the earlier of (i) the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to next scheduled purchase date under the extent that such holder does not elect to withdraw his Company’s Employee Stock Purchase Plan or her participation in the Company ESPP (ii) at least five (5) business days prior to the Effective Time, then such Option and to the extent not so exercised shall terminate, and each participant in the Company’s Employee Stock Purchase Plan shall accordingly be issued shares of Company Common Stock at that time for purchase rights exercised, which shall be deemed converted into the right to have been exercised in full on receive the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing DateMerger Consideration under Section 1.11(c). The Company Board shall terminate cause the Company ESPP Company’s Employee Stock Purchase Plan to be suspended at the earlier of the end of the current offering period or, at least five (5) days prior to the Effective Time through the Effective Time. No new “Plan Period” , and no purchase rights shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means be subsequently granted or exercised under the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 1 contract
Samples: Merger Agreement (Oce N V)
Company Stock Plans. (a) Each option Immediately prior to the Effective Time, each share of Company Common Stock granted subject to time-based, performance or other vesting or lapse restrictions pursuant to any Company Stock Plan (as defined in Section 2.3(b) below) (each, a “Restricted Share”), that is outstanding and subject to such restrictions immediately prior to the Effective Time shall automatically vest, and the Company’s reacquisition right with respect to each Restricted Share shall lapse, and the holder thereof shall, subject to this Article II (including Section 2.2(f)), be entitled to receive the Merger Consideration with respect to each such Restricted Share.
(b) The Company shall take such action as shall be required:
(i) to cause the vesting of any unvested options to purchase Company Common Stock (“Company Stock Options”) or any stock appreciation right granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding ) to be accelerated in full effective immediately prior to the Effective Time shall become fully vested Time; and
(ii) to cause, pursuant to the Company Stock Plans, each outstanding Company Stock Option with a per share exercise price less than the Merger Consideration per share of Company Common Stock (an “In-the-Money Company Stock Option”) and be cancelled each stock appreciation right to represent as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for solely the right to receive at the Effective Timereceive, in accordance with this Section 2.92.3 (and subject to Section 2.2(f)), a lump sum cash payment in the amount of the Option Consideration (as defined below)Consideration, if any, with respect to such In-the-Money Company Stock OptionOption or stock appreciation right and to be cancelled and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, the Parent, the Surviving Corporation or any other Person or any other consideration, as applicable. Each Company Stock Option outstanding and unexercised as of immediately prior to the Effective Time that is not an In-the-Money Company Stock Option will automatically and without any required action on the part of the holder thereof, be cancelled as of the Effective Time without any consideration payable in respect thereof, and will have no further force or effect.
(bc) Each holder of a an In-the-Money Company Stock Option or stock appreciation right so cancelled shall receive from the Purchaser or the ParentSurviving Corporation, in respect and in consideration of each such In-the-Money-Company Stock Option so cancelledor stock appreciation right, promptly as soon as practicable following the Effective Time (but in any event not later than 10 Business Daysthe next regularly scheduled payroll cycle), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such In-the-Money Company Stock OptionOption or stock appreciation right, as applicable, multiplied by (ii) the total number of shares of Company Common Stock subject to such In-the-Money Company Stock Option (whether or not then vested or exercisable)) or stock appreciation right, as applicable, without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(cd) As soon as practicable following Following the execution of this Agreement, if and as required by the Company Stock Plans, the Company shall mail to each Person person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 2.3 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent Surviving Corporation shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time2.3.
(e) If the Effective Time occurs on or before the “Exercise Purchase Date” relating to the applicable “Plan Offering Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) in effect as of the date of this Agreement and there are rights to purchase Company Common Stock (“Options” (as defined in the Company ESPPESPP Rights”) then outstanding with respect to such Plan Offering Period, the Company Board shall, prior to such the Effective Time, take such actions as are necessary to provide that all outstanding Options Company ESPP Rights shall be cancelled as of the Closing DateEffective Time, provided that notice of such cancellation shall be given to each holder of an Optiona Company ESPP Right, and to the extent that such each holder does not elect to withdraw his or her participation in the of a Company ESPP prior Right shall have the right to the Effective Time, then exercise such Option shall be deemed to have been exercised Company ESPP Right in full on the Closing Date (or, if not practicable, on the Business Day immediately preceding the Closing Date) based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The If the Effective Time occurs after the “Purchase Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (e.g., a new Offering Period has commenced), the Company Board shall terminate the Company ESPP as of a date prior to the Closing Date and, as promptly as reasonably practicable following such termination, all payroll deductions pursuant to the Company ESPP shall be paid out to the participating employees under the Company ESPP. In any event, the Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 2009 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 1 contract
Company Stock Plans. (a) Each option Prior to purchase the Effective Time, the Company Common shall take all actions (including, if appropriate, amending the terms of the relevant Company Stock Plan) that are necessary to give effect to the transactions contemplated by Section 1.12. The Company will take all steps necessary: (“i) to ensure that neither the Company nor any of its Subsidiaries is or will be bound by any Company Stock Options”) granted under , other options, warrants, rights or agreements which would entitle any Person to acquire any capital stock option plans or other equity-related plans of the Company Surviving Corporation or any of its subsidiaries or to receive any payment in respect thereof (the “except for cash payments to be made as provided in Section 1.12(a)), (ii) to cause such Company Stock Plans”)Options and any other options, whether vested warrants, rights or unvested, that is outstanding agreements which would entitle any Person to acquire any capital stock of the Surviving Corporation or any of its Subsidiaries or to receive any payment in respect thereof to be canceled immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior or to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for the right to receive at the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to cancellation as provided in Section 1.12(a), and (iii) to cause the Parent’s prior review Company to claim any applicable federal and comment. The Parent shall at all times from and after state income tax deductions for the Effective Time maintain sufficient liquid funds to satisfy its obligations payments to holders of Company Stock Options pursuant to this in accordance with Section 2.91.12 hereof so that any tax benefits accruing therefrom will be for the account of the Surviving Corporation.
(db) Each Restricted Share granted pursuant to Outstanding purchase rights under the Company Company’s Employee Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Purchase Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as exercised upon the earlier of (i) the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to next scheduled purchase date under the extent that such holder does not elect to withdraw his Company’s Employee Stock Purchase Plan or her participation in the Company ESPP (ii) at least five (5) business days prior to the Effective Time, then such Option and to the extent not so exercised shall terminate, and each participant in the Company’s Employee Stock Purchase Plan shall accordingly be issued shares of Company Common Stock at that time for purchase rights exercised, which shall be deemed converted into the right to have been exercised in full on receive the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10Merger Consideration under Section 1.11(c) days preceding the Closing Date. The Company Board shall terminate cause the Company ESPP Company’s Employee Stock Purchase Plan to be suspended at the earlier of the end of the current offering period or, at least five (5) days prior to the Effective Time through the Effective Time. No new “Plan Period” , and no purchase rights shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means be subsequently granted or exercised under the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 1 contract
Company Stock Plans. (a) Each The Company will take all actions necessary to provide that, upon the Effective Time, (i) each outstanding option (each, an "Option") to purchase Company Common Stock under the Company's Amended and Restated 1984 Stock Option Plan (“the "1984 Option Plan"), the Company's 1997 Equity Participation Plan, as amended (the "Equity Participation Plan") or the Company's Non-Qualified Stock Option Plan of Xxxx X. Xxxx (the "Non-Qualified Stock Option Plan" and, together with the Equity Participation Plan and the 1984 Option Plan, the "Company Stock Options”Plans"), (ii) each outstanding stock appreciation right, performance award or other award granted under any stock option plans the Company's Equity Participation Plan (each, an "Incentive Plan Award"), and (iii) each outstanding share of restricted Company Common Stock issued under the Company's Equity Participation Plan ("Restricted Shares" and, together with Options and Incentive Plan Awards, "Awards"), whether or other equity-related plans not then exercisable or vested, all of which Awards are listed in Section 2.03(a) of the Company Disclosure Schedule (as defined in Section 3.01), will become fully exercisable and vested.
(b) As soon as practicable after the “date hereof, the Company will deliver to holders of Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans”, the agreements evidencing the grants of such Awards and this Agreement. Holders of Options identified on Section 2.03(b) of the Company Disclosure Schedule will be entitled, at their election, to have any or all of their Options (i) assumed by RECO pursuant to and in accordance with Section 2.03(c) or (ii) canceled or repurchased pursuant to and in accordance with Section 2.03(d). All other Options will be canceled or repurchased pursuant to and in accordance with Section 2.03(d).
(c) At the Effective Time, the Company's obligations with respect to each Option for which the holder thereof has elected pursuant to the second sentence of Section 2.03(b) to be assumed by RECO (an "Assumed Option"), whether vested will be assumed by RECO. The Assumed Options will continue to have, and be subject to, the same terms and conditions as set forth in the Company Stock Plans (as the case may be) and related option or unvestedother grant agreements (as in effect immediately prior to the Effective Time) pursuant to which the Assumed Options were issued, provided that is outstanding (i) all references to the Company will be deemed to be references to RECO, and all references to the Company Common Stock will be deemed to be references to Paired Shares, (ii) each Assumed Option will be exercisable for that number of whole Paired Shares equal to the product of the number of shares of the Company Common Stock covered by the Assumed Option immediately prior to the Effective Time shall become fully vested multiplied by the Exchange Ratio and rounded to the nearest whole number of Paired Shares, and (iii) the exercise price per share of Paired Shares under each Assumed Option will be cancelled as equal to the exercise price per share of the Company Common Stock under the Assumed Option immediately prior to the Effective Time (without regard divided by the Exchange Ratio, rounded to the nearest cent. Pursuant to this Agreement and in accordance with the Subscription Agreement, RECO will (A) reserve for issuance or hold the number of Paired Shares that will become issuable upon the exercise price of such Company Stock OptionAssumed Options pursuant to this Section 2.03(c) in exchange for and (B) promptly after the right Effective Time issue to receive at each holder of an outstanding Assumed Option a document evidencing the assumption by RECO of the Company's obligations with respect thereto under this Section 2.03(c).
(d) Immediately prior to the Effective Time, in accordance with this Section 2.9each Option which is not an Assumed Option will be canceled or repurchased, a lump sum cash payment in the amount of the Option Consideration (as defined below)appropriate, if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of such cancellation or repurchase, as the case may be, the Company will pay to the holder of each Company Stock such Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) in respect thereof equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock OptionApplicable Amount, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option thereto (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.such
Appears in 1 contract
Samples: Merger Agreement (Meditrust Corp)
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans Effective as of the Effective Time, each Company (the “Company Stock Plans”), whether vested or unvested, RSU that is then outstanding immediately prior to the Effective Time and unvested shall become fully vested automatically be canceled and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Company Stock Option) in exchange for converted into the right to receive at from the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the Surviving Corporation an amount of the Option Consideration (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) cash equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to then underlying such Company Stock Option RSU multiplied by (whether or not then vested or exercisable)ii) the Merger Consideration, without any interest thereon thereon.
(b) Effective as of the “Option Consideration”). In Effective Time, each Company PSU that is then outstanding and unvested shall automatically be canceled and converted into the event that right to receive from the exercise price Surviving Corporation an amount of any Company Stock Option is cash equal to or greater than the product of (i) the number of shares of Company Common Stock that vest upon a Sale of the Company (as defined in the Company LTIP) pursuant to the applicable Company PSU grant terms multiplied by (ii) the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effectinterest thereon.
(c) Parent and US Holdco shall (i) cause the Surviving Corporation to make the payments contemplated by the foregoing Section 2.3(a) and Section 2.3(b) as promptly as practicable after the Effective Time, and in any event, as to any Person who is a holder of Company RSUs or Company PSUs, by the later of seven Business Days following each such Person’s compliance with any written instructions provided to such Person by the Company pursuant to Section 2.3(d), and seven Business Days after the Effective Time and (ii) cause the Surviving Corporation to maintain at all times from and after the Effective Time sufficient liquid funds to satisfy its obligations pursuant to Section 2.3(a) and Section 2.3(b).
(d) As soon as practicable following the execution of this Agreement, the Company shall mail or electronically transmit to each Person who is a holder of Company Stock Options RSUs or Company PSUs a letter describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 2.3 and providing any applicable instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9therefor.
(de) Each Restricted Share granted pursuant Prior to the Effective Time, the Company shall take all actions that are necessary (under the Company Stock Plans Plan and award agreements pursuant to which Company RSUs and Company PSUs are outstanding immediately prior or otherwise) to (i) effect the measures contemplated by this Section 2.3, including but not limited to the Effective Time shall become fully vested and free adoption of any vesting plan amendments, obtaining the approval of the Company Board, obtaining any necessary employee consents or other lapse restrictions providing any necessary employee notices and (ii) cause there to be no rights to acquire Company Common Stock following the Effective Time.
(f) The Company shall take all actions necessary to terminate the Company Stock Plan effective as of immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) , and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to following the Effective Time, then such Option shall be deemed to have been exercised no participant in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans Plan shall terminate and all rights have any right under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary Stock Plan other than the right to receive the payments in accordance with the terms of this Section 2.3. Parent and US Holdco shall cause the Company shall be cancelledSurviving Corporation to, subject to Section 2.5, pay through its payroll system the amounts due pursuant to Section 2.3(a) and Section 2.3(b).
Appears in 1 contract
Company Stock Plans. (a) Each option to purchase Company Common Stock (“Company Stock Options”) granted under any stock option plans or other equity-related plans of the Company (the “Company Stock Plans”), whether vested or unvested, that is outstanding immediately prior to the Effective Time shall become fully vested and be cancelled as of immediately prior to the Effective Time (without regard to the exercise price of such Time, each then-outstanding and unexercised Company Stock Option) Option shall vest in exchange for full and automatically be cancelled and converted into the right to receive at from the Effective Time, in accordance with this Section 2.9, a lump sum cash payment in the Surviving Corporation an amount of the Option Consideration cash (as defined below), if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of each Company Stock Option so cancelled, promptly following the Effective Time (but in without any event not later than 10 Business Days), an amount (net of applicable taxesinterest thereon) equal to the product of (i) the excess, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to then underlying such Company Stock Option multiplied by (whether or not then vested or exercisable)ii) the excess, without any interest thereon (if any, of the “Option Consideration”)Merger Consideration over the exercise price per share of such Company Stock Option. In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(b) Effective as of the Effective Time, each Company RSU that is then outstanding and unvested shall vest (with performance-based vesting RSUs vesting at the applicable target level) in full and automatically be cancelled and converted into the right to receive an amount of cash (without any interest thereon) from the Surviving Corporation equal to the product of (i) the total number of shares of Company Common Stock then underlying such Company RSU multiplied by (ii) the Merger Consideration.
(c) As soon The Parent shall (i) cause the Surviving Corporation to make the payments contemplated by the foregoing Section 1.8(a) and Section 1.8(b) as promptly as practicable following (and in any event within seven Business Days) after the execution of this AgreementEffective Time, and (ii) cause the Surviving Corporation to maintain at all times from and after the Effective Time sufficient liquid funds to satisfy its obligations pursuant to Section 1.8(a) and Section 1.8(b).
(d) At least five Business Days prior to the anticipated Closing Date, the Company shall mail provide a notice to each Person who is a holder of Company Stock Options a letter or Company RSUs describing the treatment of and payment for such Company Stock Options equity awards pursuant to this Section 2.9 1.8 and providing instructions for use in obtaining payment for such therefor. The Company Stock Options, which letter shall be subject provide the Parent with a reasonable opportunity to review the notices described in this Section 1.8(d) reasonably in advance of providing said notices and the Company shall consider in good faith any reasonable comments provided by the Parent to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9Company.
(de) Each Restricted Share granted pursuant to The Company Board shall (i) as soon as practicable after the date hereof, suspend the Company ESPP as of the end of the Subscription Period (as defined in the ESPP) in effect as of the date of this Agreement such that no payroll deductions shall be made with respect to any Compensation (as defined in the ESPP) payable to a participating employee under the Company ESPP after the end of such Subscription Period, (ii) as soon as practicable following the end of the Subscription Period, return any remaining payroll deductions not used to purchase shares of Company Common Stock Plans outstanding immediately prior to as of the Effective Time shall become fully vested end of such Subscription Period, and free of any vesting or other lapse restrictions (iii) terminate the Company ESPP no later than immediately prior to the Effective Time.
(ef) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of No later than twenty days after the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Periodhereof, the Company Board shall, prior to such Effective Time, shall pass resolutions and take such other actions as are necessary to provide that all outstanding Options shall be cancelled as for the treatment of the Closing DateCompany Stock Options, provided that notice of such cancellation shall be given to each holder of an Optionthe Company RSUs and the Company ESPP as contemplated by this Section 1.8, and shall promptly thereafter provide evidence thereof to the Parent that is reasonably satisfactory to the Parent.
(g) The Parent and the Company may agree to treat equity compensation held by Company employees subject to non-U.S. law in a manner other than that contemplated above in this Section 1.8 to the extent that such holder does not elect necessary to withdraw his take into account applicable non-U.S. law or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his Tax or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Planemployment considerations.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.
Appears in 1 contract
Samples: Merger Agreement (Intricon Corp)
Company Stock Plans. (a) Each The Company will take all actions necessary ------------------- to provide that, upon the Effective Time, (i) each outstanding option (each, an "Option") to purchase Company Common Stock under the Company's Equity Incentive Plan (“Company the "Equity Incentive Plan") or Stock Options”Option Plan for Non-Employee Directors (the "Director Plan"), (ii) each outstanding stock appreciation right, deferred share, performance share or performance unit granted under any stock option plans the Company's Equity Incentive Plan (each, an "Incentive Plan Award"), and (iii) each outstanding share of restricted Company Common Stock issued under the Company's Equity Incentive Plan or other equity-related plans Management Bonus Plan ("Restricted Shares" and, together with Options and Incentive Plan Awards, "Awards"), whether or not then exercisable or vested, all of which Awards are listed in Section 2.03(a) of the Company Disclosure Schedule (as defined in Section 3.01), will become fully exercisable and vested.
(b) As soon as practicable after the “date hereof, the Company will deliver to holders of Awards appropriate notices setting forth such holders' rights pursuant to the respective Company Stock Plans”, the agreements evidencing the grants of such Awards and this Agreement. Holders of Options identified on Section 2.03(b) of the Company Disclosure Schedule will be entitled, at their election, to have any or all of their Options (i) assumed by Patriot pursuant to and in accordance with Section 2.03(c) or (ii) canceled or repurchased pursuant to and in accordance with Section 2.03(d). All other Options will be canceled or repurchased pursuant to and in accordance with Section 2.03(d).
(c) At the Effective Time, the Company's obligations with respect to each Option for which the holder thereof has elected pursuant to the second sentence of Section 2.03(b) to be assumed by Patriot (an "Assumed Option"), whether vested will be assumed by Patriot. The Assumed Options will continue to have, and be subject to, the same terms and conditions as set forth in the Company's Equity Incentive Plan or unvestedDirector Plan (as the case may be) and related option agreements (as in effect immediately prior to the Effective Time) pursuant to which the Assumed Options were issued, provided that is outstanding (i) all references to the Company will be deemed to be references to Patriot, and all references to the Company Common Stock will be deemed to be references to Paired Shares, (ii) each Assumed Option will be exercisable for that number of whole Paired Shares equal to the product of the number of shares of the Company Common Stock covered by the Assumed Option immediately prior to the Effective Time shall become fully vested multiplied by the Exchange Ratio and rounded to the nearest whole number of Paired Shares, and (iii) the exercise price per share of Paired Shares under each Assumed Option will be cancelled as equal to the exercise price per share of the Company Common Stock under the Assumed Option immediately prior to the Effective Time (without regard divided by the Exchange Ratio, rounded to the nearest cent. Pursuant to this Agreement and in accordance with the Subscription Agreement, Patriot will (A) reserve for issuance or hold the number of Paired Shares that will become issuable upon the exercise price of such Company Stock OptionAssumed Options pursuant to this Section 2.03(b) in exchange for and (B) promptly after the right Effective Time issue to receive at each holder of an outstanding Assumed Option a document evidencing the assumption by Patriot of the Company's obligations with respect thereto under this Section 2.03(b).
(d) Immediately prior to the Effective Time, in accordance with this Section 2.9each Option which is not an Assumed Option will be canceled or repurchased, a lump sum cash payment in the amount of the Option Consideration (as defined below)appropriate, if any, with respect to such Company Stock Option.
(b) Each holder of a Company Stock Option shall receive from the Purchaser or the Parent, in respect and in consideration of such cancellation or repurchase, as the case may be, the Company will pay to the holder of each Company Stock such Option so cancelled, promptly following the Effective Time (but in any event not later than 10 Business Days), an amount (net of applicable taxes) in respect thereof equal to the product of (i) the excessApplicable Amount, if any, of (A) the Merger Consideration per share of Company Common Stock over (B) the exercise price per share of Company Common Stock subject to such Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option (whether or not then vested or exercisable), without any interest thereon (the “Option Consideration”). In the event that the exercise price of any Company Stock Option is equal to or greater than the Merger Consideration, such Company Stock Option shall be cancelled, without any consideration being payable in respect thereof, and have no further force or effect.
(c) As soon as practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Company Stock Options a letter describing the treatment of and payment for such Company Stock Options pursuant to this Section 2.9 and providing instructions for use in obtaining payment for such Company Stock Options, which letter shall be subject to the Parent’s prior review and comment. The Parent shall at all times from and after the Effective Time maintain sufficient liquid funds to satisfy its obligations to holders of Company Stock Options pursuant to this Section 2.9.
(d) Each Restricted Share granted pursuant to the Company Stock Plans outstanding immediately prior to the Effective Time shall become fully vested and free of any vesting or other lapse restrictions immediately prior to the Effective Time.
(e) If the Effective Time occurs on or before the “Exercise Date” relating to the applicable “Plan Period” in effect as of the date of this Agreement (as such terms are defined in the Company ESPP) and there are “Options” (as defined in the Company ESPP) then outstanding with respect to such Plan Period, the Company Board shall, prior to such Effective Time, take such actions as are necessary to provide that all outstanding Options shall be cancelled as of the Closing Date, provided that notice of such cancellation shall be given to each holder of an Option, and to the extent that such holder does not elect to withdraw his or her participation in the Company ESPP prior to the Effective Time, then such Option shall be deemed to have been exercised in full on the Closing Date based on payroll deductions then credited to his or her account as of a date determined by the Company Board, which date shall not be less than ten (10) days preceding the Closing Date. The Company Board shall terminate the Company ESPP prior to the Effective Time. No new “Plan Period” shall commence after the date of this Agreement. As used in this Agreement, “Company ESPP” means the Company’s Restated 1999 Employee Stock Purchase Plan.
(f) As of the Effective Time, the Company Stock Plans shall terminate and all rights under any provision of any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary of the Company shall be cancelled.multiplied
Appears in 1 contract
Samples: Merger Agreement (Patriot American Hospitality Operating Co\de)
