Common use of Effect on Company Options Clause in Contracts

Effect on Company Options. (a) Each Company Option that is outstanding as of immediately prior to the Effective Time shall be assumed by Parent and converted into an option to purchase shares of Parent Class A Stock upon substantially the same terms and conditions as are in effect with respect to such Company Option immediately prior to the Effective Time, including with respect to vesting, exercisability and termination-related provisions (each, a “Parent Option”) except that (a) such Parent Option shall provide the right to purchase that whole number of shares of Parent Class A Stock (rounded down to the nearest whole share) equal to the number of shares of Company Common Stock subject to such Company Option as of immediately prior to the Effective Time and (b) the exercise price per share shall be equal to the exercise price per share of such Company Option in the effect immediately prior to the Effective Time (the exercise price per share, as so determined, being rounded up to the nearest full cent); provided, however, that the conversion of the Company Options will be made in a manner consistent with Treasury Regulation Section 1.424-1, such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the Code. (b) The Company shall take all necessary actions to effect the treatment of Company Options pursuant to Sections 2.12(a) in accordance with the Company Incentive Plan and the applicable award agreements and to ensure that no Parent Option may be exercised prior to the effective date of an applicable Form S-8 (or other applicable form, including Form S-1 or Form S-3) of Parent. The board of directors of the Company shall take all necessary actions, effective as of immediately prior to the Closing, in order to (i) provide that the unallocated share reserve remaining under the Company Incentive Plan as of the Closing Date (including any shares subsequently returned to such share reserve as a result of the termination of awards issued under the Company’s applicable stock plan) shall be included in the share reserve under the LTIP, in accordance with the terms thereof, and (ii) provide that no new Company Options will be granted under the Company Incentive Plan following the Closing. Prior to the Effective Time, the Company shall deliver to each holder of a Company Option a notice, in a form reasonably acceptable to Parent, setting forth the effect of the Merger on such holder’s Company Options and describing the treatment of such Company Options in accordance with this Section 2.12. (c) Parent shall take all actions that are necessary for the assumption and conversion of the Company Options pursuant to Section 2.12. If registration of the issuance of the Parent Options is required under the Securities Act, Parent shall file, as promptly as practicable after the date that is sixty (60) days after the Form 8-K announcing the Closing is filed (or any such earlier date permitted by Applicable Legal Requirements), a registration statement on Form S-8 with respect to such Parent Options and shall use its commercially reasonable efforts to maintain the effectiveness of such registration statement for so long as the applicable Parent Options remain outstanding and such registration of the sale of the shares of Parent Class A Common Stock issuable thereunder continues to be required.

Effect on Company Options. (a) Each Company Option (or portion thereof) that is outstanding and unvested as of immediately prior to the Effective Time shall be assumed accelerated to the extent that under its respective terms and conditions the Merger results in such acceleration. At the Effective Time, each such then unexercised and outstanding Company Vested Option shall, by Parent virtue of the Merger, be immediately cancelled and converted into the holder thereof shall be entitled to receive upon the terms and subject to the conditions set forth in this Section 1.6 and throughout this Agreement, including the escrow provisions set forth in Article VII hereof, in consideration of such cancellation, for each share of Company Common Stock as to which such Company Vested Option is vested (including accelerated vesting pursuant to the preceding sentence), in each case without interest (i) an option amount following the Effective Time equal to purchase shares the Per Share Closing Option Consideration, (ii) an amount, following determination of Parent Class A the Final CY12 EBIT, equal to the Per Share CY12 Earnout Consideration, if any, (iii) an amount, following determination of the Final CY13 EBIT, equal to the Per Share CY13 Earnout Consideration, if any and (iv) following the General Survival Period, the portion of any Escrow Release that is distributable in respect of a former share of Company Common Stock upon substantially pursuant to Section 7.5(c). Such consideration shall be paid on the same schedule and subject to the same terms and conditions as apply to the merger consideration paid to the Shareholders generally. To the extent reasonably practicable, any ambiguities will be interpreted so that the payments contemplated under this Section 1.6 are in effect exempt from or comply with respect Section 409A. The payment of the foregoing amounts shall be reduced by any applicable income or employment or other Tax withholding required under the Code or any provision of applicable state, local or foreign Tax law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of such Company Options. Each Company Unvested Option (or portion thereof) that is outstanding and remains unaccelerated and unvested as of immediately prior to the Effective Time, including with respect to vestingif any, exercisability and termination-related provisions (each, a “Parent Option”) except that (a) such Parent Option shall provide the right to purchase that whole number of shares of Parent Class A Stock (rounded down to the nearest whole share) equal to the number of shares of Company Common Stock subject to such Company Option as of immediately prior to the Effective Time and (b) the exercise price per share shall be equal to the exercise price per share of such Company Option in the effect immediately prior to the Effective Time (the exercise price per share, as so determined, being rounded up to the nearest full cent); provided, however, that the conversion of the Company Options will be made in a manner consistent with Treasury Regulation Section 1.424-1, such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the Code. (b) The Company shall take all necessary actions to effect the treatment of Company Options pursuant to Sections 2.12(a) in accordance with the Company Incentive Plan cancelled and the applicable award agreements extinguished and to ensure that no Parent Option may be exercised prior to the effective date of an applicable Form S-8 (or other applicable form, including Form S-1 or Form S-3) of Parent. The board of directors of the Company shall take all necessary actions, effective as of immediately prior to the Closing, in order to (i) provide that the unallocated share reserve remaining under the Company Incentive Plan as of the Closing Date (including any shares subsequently returned to such share reserve as a result of the termination of awards issued under the Company’s applicable stock plan) shall be included in the share reserve under the LTIP, in accordance with the terms thereof, and (ii) provide that no new Company Options consideration will be granted under the Company Incentive Plan following the Closing. Prior to the Effective Time, the Company shall deliver to each holder of a Company Option a notice, delivered in a form reasonably acceptable to Parent, setting forth the effect of the Merger on such holder’s Company Options and describing the treatment of such Company Options in accordance with this Section 2.12exchange therefor. (c) Parent shall take all actions that are necessary for the assumption and conversion of the Company Options pursuant to Section 2.12. If registration of the issuance of the Parent Options is required under the Securities Act, Parent shall file, as promptly as practicable after the date that is sixty (60) days after the Form 8-K announcing the Closing is filed (or any such earlier date permitted by Applicable Legal Requirements), a registration statement on Form S-8 with respect to such Parent Options and shall use its commercially reasonable efforts to maintain the effectiveness of such registration statement for so long as the applicable Parent Options remain outstanding and such registration of the sale of the shares of Parent Class A Common Stock issuable thereunder continues to be required.

Effect on Company Options. (ai) Each Parent shall not assume any Company Options in connection with the consummation of the transactions contemplated hereby. (ii) At the Effective Time, each Vested Company Option that is outstanding (after giving effect to any acceleration of vesting that occurs at or prior to the Effective Time or otherwise in connection with, or as a result of, the consummation of the Merger) and unexercised immediately prior to the Effective Time shall be, without any action on the part of the holder thereof, cancelled and extinguished and, in exchange therefore, each Optionholder shall be entitled to, subject to execution and delivery of an Option Cancellation and Release Agreement in substantially the form attached hereto as Exhibit G(the “Option Cancellation Agreement”) receive an amount in cash (without interest) equal to (A) the portion of Aggregate Closing Optionholder Proceeds set forth opposite such Optionholder’s name on the Payment Spreadsheet (less any applicable Taxes required to be withheld) and (B) a portion of any Additional Merger Consideration as set forth herein (less any applicable Taxes required to be withheld). Parent shall cause the Surviving Corporation to pay, by wire transfer of immediately available funds, to the holder of each such Company Option, as promptly as practicable after the Closing (and, in any event, no later than the next regularly scheduled payroll after the Closing), the portion of the Aggregate Closing Optionholder Proceeds to which such holder is entitled pursuant to this Section 1.6(c). For the avoidance of doubt, as and when any such Aggregate Closing Optionholder Proceeds becomes payable to the former holder of Vested Company Options at the Effective Time, such amounts shall be delivered by Parent to the Surviving Corporation for payroll processing, and the Surviving Corporation will disburse such payments (net of applicable tax withholding), to the former holder of such Vested Company Options through its standard payroll procedures. (iii) At the Effective Time, each Unvested Company Option that is outstanding (after giving effect to any acceleration of vesting that occurs at or prior to the Effective Time or otherwise in connection with, or as a result of, the consummation of the Merger) and unexercised as of immediately prior to the Effective Time shall be assumed by Parent cancelled and converted into an option to purchase shares of Parent Class A Stock upon substantially the same terms and conditions as are in effect with respect to such Company Option immediately prior to the Effective Time, including with respect to vesting, exercisability and termination-related provisions (each, a “Parent Option”) except that (a) such Parent Option shall provide the right to purchase that whole number of shares of Parent Class A Stock (rounded down to the nearest whole share) equal to the number of shares of Company Common Stock subject to such Company Option as of immediately prior to the Effective Time and (b) the exercise price per share shall be equal to the exercise price per share of such Company Option in the effect immediately prior to the Effective Time (the exercise price per share, as so determined, being rounded up to the nearest full cent); provided, however, that the conversion of the Company Options will be made in a manner consistent with Treasury Regulation Section 1.424-1, such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the Codeextinguished without consideration. (b) The Company shall take all necessary actions to effect the treatment of Company Options pursuant to Sections 2.12(a) in accordance with the Company Incentive Plan and the applicable award agreements and to ensure that no Parent Option may be exercised prior to the effective date of an applicable Form S-8 (or other applicable form, including Form S-1 or Form S-3) of Parent. The board of directors of the Company shall take all necessary actions, effective as of immediately prior to the Closing, in order to (i) provide that the unallocated share reserve remaining under the Company Incentive Plan as of the Closing Date (including any shares subsequently returned to such share reserve as a result of the termination of awards issued under the Company’s applicable stock plan) shall be included in the share reserve under the LTIP, in accordance with the terms thereof, and (ii) provide that no new Company Options will be granted under the Company Incentive Plan following the Closing. Prior to the Effective Time, the Company shall deliver to each holder of a Company Option a notice, in a form reasonably acceptable to Parent, setting forth the effect of the Merger on such holder’s Company Options and describing the treatment of such Company Options in accordance with this Section 2.12. (c) Parent shall take all actions that are necessary for the assumption and conversion of the Company Options pursuant to Section 2.12. If registration of the issuance of the Parent Options is required under the Securities Act, Parent shall file, as promptly as practicable after the date that is sixty (60) days after the Form 8-K announcing the Closing is filed (or any such earlier date permitted by Applicable Legal Requirements), a registration statement on Form S-8 with respect to such Parent Options and shall use its commercially reasonable efforts to maintain the effectiveness of such registration statement for so long as the applicable Parent Options remain outstanding and such registration of the sale of the shares of Parent Class A Common Stock issuable thereunder continues to be required.

Effect on Company Options. (ai) No Company Options shall be assumed, substituted or continued by Buyer, the Company or any of their respective Affiliates in connection with the Transactions. Each Company Option that is outstanding and unexercised as of immediately prior to the Effective Time shall be assumed by Parent cancelled and converted automatically into the right of the holder thereof to receive with respect to each share of Company Stock subject thereto, (i) an option amount in cash, without interest, equal to purchase (A) the Per Share Adjusted Cash Consideration for each share of Company Stock issuable upon the exercise in full of such Company Option, minus, (B) an amount in cash equal to the per share exercise price of such Company Option (the “Option Cash Payment”); (ii) a number of shares of Parent Class A SPAC Common Stock upon substantially equal to the same terms and conditions as are in effect Per Share Stock Consideration (the “Option Stock Consideration”); (iii) the number of Post-Closing SPAC Shares, if any, required to be issued with respect to such Company Option immediately prior to the Effective Time, including with respect to vesting, exercisability and termination-related provisions (each, a “Parent Option”) except that (a) such Parent Option shall provide Person who was the right to purchase that whole number of shares of Parent Class A Stock (rounded down to the nearest whole share) equal to the number of shares of Company Common Stock subject to such Company Option holder thereof as of immediately prior to the Effective Time and in accordance with Section 2.7, (biv) any cash disbursements required to be made in connection with the exercise price per share shall be equal Post-Closing Excess Amount (if any) with respect to the exercise price per share of such Company Option in the effect immediately prior to the Effective Time (Person who was the exercise price per share, as so determined, being rounded up to the nearest full cent); provided, however, that the conversion of the Company Options will be made in a manner consistent with Treasury Regulation Section 1.424-1, such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the Code. (b) The Company shall take all necessary actions to effect the treatment of Company Options pursuant to Sections 2.12(a) in accordance with the Company Incentive Plan and the applicable award agreements and to ensure that no Parent Option may be exercised prior to the effective date of an applicable Form S-8 (or other applicable form, including Form S-1 or Form S-3) of Parent. The board of directors of the Company shall take all necessary actions, effective holder thereof as of immediately prior to the ClosingEffective Time, in order to (i) provide that the unallocated share reserve remaining under the Company Incentive Plan as of the Closing Date (including any shares subsequently returned to such share reserve as a result of the termination of awards issued under the Company’s applicable stock plan) shall be included in the share reserve under the LTIPwithout interest, in accordance with Section 2.12, (v) any cash disbursements required to be made in connection with the terms thereofRemaining Escrow Amount (if any) with respect to such Company Option to the Person who was the holder thereof as of immediately prior to the Effective Time, without interest, in accordance with Section 2.12, (vi) any cash disbursements required to be made from the Sellers Representative Reserve Fund with respect to such Company Option to the Person who was the holder thereof as of immediately prior to the Effective Time, without interest, in accordance with Section 2.14, and (vii) any Tax Refund Amount required to be made with respect to such Company Option to the Person who was the holder thereof as of immediately prior to the Effective Time, without interest, in accordance with Section 6.2(a)(iii). The Option Cash Payment in respect of any such Company Options to be paid to Employee Optionholders who have delivered a duly executed Option Surrender Agreement shall be made promptly (but in no event later than the later of (A) five (5) Business Days following the Closing Date, and (B) the date of the first regular payroll cycle of the Acquired Companies following the Closing Date) through the payroll processing system of an Acquired Company in accordance with standard payroll practices net of applicable Tax withholding and deductions (including any applicable Tax withholding and deductions with respect to the Option Stock Consideration payable to such Optionholder). The Option Cash Payment in respect of any such Company Options to be paid to Non-Employee Optionholders who have delivered a duly executed Option Surrender Agreement and, to the extent required by the Paying Agent, a properly completed Letter of Transmittal, in each case at least three (3) Business Days prior to the Closing, shall be made, or caused to be made, by Buyer promptly following the Closing (and in any event, no more than five (5) Business Days after the Closing) (for the avoidance of doubt, no withholding or deductions shall be made with respect to such Option Cash Payment, except to the extent required by appliable Law). Buyer shall cause the SPAC Common Stock that constitutes the Option Stock Consideration in respect of any such Company Options to be issued by the SPAC (or its transfer agent) within five (5) Business Days after the Closing Date. For the avoidance of doubt, any such Optionholder’s right to receive any payments hereunder shall be conditioned on such Optionholder first delivering to the Buyer or the Surviving Entity, a properly completed Option Surrender Agreement. (ii) provide that no new Company Options will be granted under the Company Incentive Plan following the Closing. Prior At or prior to the Effective Time, the Company shall deliver to each holder of a Company Option a notice, in a form reasonably acceptable to Parent, setting forth the effect Board or applicable committee of the Merger on such holder’s Board shall terminate the Company Options Equity Plans effective at the Effective Time and describing shall approve the settlement and treatment of such Company Options in accordance with this Section 2.12. (c) Parent shall take all actions that are necessary for the assumption and conversion of the Company Options and take all actions necessary to effect the transactions anticipated by this Section 2.1 under any Contract applicable to any Company Option as provided under this Section 2.1. (iii) To the extent applicable, any allocable portion of the consideration payable in respect of Company Options pursuant to this Section 2.12. If registration 2.1 to be made following the Effective Time shall be paid in a manner that satisfies Regulation Section 1.409A-3(i)(5)(iv) of the issuance Code, to the extent necessary to satisfy the requirements of Section 409A of the Parent Options is required under the Securities Act, Parent shall file, as promptly as practicable after the date that is sixty (60) days after the Form 8-K announcing the Closing is filed (or any such earlier date permitted by Applicable Legal Requirements), a registration statement on Form S-8 with respect to such Parent Options and shall use its commercially reasonable efforts to maintain the effectiveness of such registration statement for so long as the applicable Parent Options remain outstanding and such registration of the sale of the shares of Parent Class A Common Stock issuable thereunder continues to be requiredCode.

Effect on Company Options. Neither Parent nor the Surviving Corporation shall assume any Company Option in connection with the consummation of the transactions contemplated hereby. Instead, each Company Option shall be treated as follows: (ai) Each At the Effective Time, each Vested Company Option which is outstanding and unexercised immediately prior to the Effective Time shall be cancelled and extinguished and be converted automatically into the right to receive an amount in cash (without interest) equal to the product of (i) the Option Consideration multiplied by (ii) the number of shares of Company Common Stock underlying such Company Option (such payment to be net of applicable withholding Taxes pursuant to Section 1.6(d)); provided that no Optionholder will be paid his or her portion of the Option Consideration until he or she has executed and delivered to the Company an option cancellation agreement substantially in the form of Annex I attached hereto (an “Option Cancellation Agreement”) and otherwise complied with Section 1.8(a)). Parent shall cause the Surviving Corporation to pay, by wire transfer of immediately available funds, to the holder of each such Company Option, as promptly as practicable after the Closing, the portion of the Aggregate Option Proceeds to which such holder is entitled pursuant to this Section 1.6(c). (ii) At the Effective Time, each Unvested Company Option that is outstanding and unexercised (after giving effect to any acceleration of vesting that occurs at or prior to the Effective Time or otherwise in connection with, or as a result of, the consummation of the Merger) as of immediately prior to the Effective Time shall be assumed by Parent cancelled and converted into an option to purchase shares of Parent Class A Stock upon substantially the same terms and conditions as are in effect with respect to such Company Option immediately prior to the Effective Time, including with respect to vesting, exercisability and termination-related provisions extinguished without consideration. (each, a “Parent Option”iii) except that (a) such Parent Option shall provide the right to purchase that whole number of shares of Parent Class A Stock (rounded down to the nearest whole share) equal to the number of shares of Company Common Stock subject to such Company Option as of immediately At or prior to the Effective Time and (b) the exercise price per share shall be equal subject to the exercise price per share of such Company Option in the effect immediately prior to the Effective Time (the exercise price per shareSection 1.6(c)(ii), as so determined, being rounded up to the nearest full cent); provided, however, that the conversion of the Company Options will be made in a manner consistent with Treasury Regulation Section 1.424-1, such that such conversion will not constitute a “modification” of such Company Options for purposes of Section 409A or Section 424 of the Code. (b) The Company shall take all necessary actions to effect the treatment of Company Options pursuant to Sections 2.12(a) in accordance with the Company Incentive Plan and the applicable award agreements and to ensure that no Parent Option may be exercised prior to the effective date of an applicable Form S-8 (or other applicable form, including Form S-1 or Form S-3) of Parent. The board of directors of the Company shall take all actions reasonably necessary actions, effective as (including obtaining any necessary determinations and/or resolutions of immediately prior to the Closing, in order to (i) provide that the unallocated share reserve remaining under the Company Incentive Plan as Board or a committee thereof and any necessary consents from the holders of the Closing Date (including Company Options) to terminate any shares subsequently returned to such share reserve as a result of the termination of awards issued under the Company’s applicable stock plan) shall be included in the share reserve under the LTIP, in accordance with the terms thereof, and (ii) provide that no new Company Options will be granted under plan or agreement governing the Company Incentive Plan following Options, as amended from time to time; provided that such resolutions and other actions may be conditioned upon the Closing. Prior to the Effective Time, the Company shall deliver to each holder of a Company Option a notice, in a form reasonably acceptable to Parent, setting forth the effect consummation of the Merger on such holder’s and shall be of no effect if this Agreement is terminated. The Company Options shall provide Parent with drafts of, and describing a reasonable opportunity to comment upon, all resolutions and other written actions as may be required to effectuate the treatment provisions of such Company Options in accordance with this Section 2.121.6(c)(iii). (c) Parent shall take all actions that are necessary for the assumption and conversion of the Company Options pursuant to Section 2.12. If registration of the issuance of the Parent Options is required under the Securities Act, Parent shall file, as promptly as practicable after the date that is sixty (60) days after the Form 8-K announcing the Closing is filed (or any such earlier date permitted by Applicable Legal Requirements), a registration statement on Form S-8 with respect to such Parent Options and shall use its commercially reasonable efforts to maintain the effectiveness of such registration statement for so long as the applicable Parent Options remain outstanding and such registration of the sale of the shares of Parent Class A Common Stock issuable thereunder continues to be required.