Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")): (1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and (2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time.
Appears in 4 contracts
Samples: Merger Agreement (Ornda Healthcorp), Merger Agreement (Littlejohn Joseph & Levy Fund L P), Merger Agreement (Tenet Healthcare Corp)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each Eligible Stock Option that is then outstanding under the Company Option Plan, whether vested or unvested, shall be assumed by Parent in accordance with the terms (as in effect as of the Employee Stock Options which is outstanding date of this Agreement) of the Company Option Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of agreement by which such Eligible Stock Option is evidenced. All rights with respect to Company governing the Employee Common Stock under outstanding Eligible Stock Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (the "Company a) each Eligible Stock Option Plans")):
assumed by Parent may be exercised solely for shares of Parent Common Stock, (1b) The the number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Eligible Stock Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Eligible Stock Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Eligible Stock Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Eligible Stock Option, as in effect immediately preceding the day prior to the Effective Time, by the Exchange Ratio, and rounding the resulting exercise price up to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Eligible Stock Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Eligible Stock Option shall otherwise remain unchanged; provided, however, that each such assumed Eligible Stock Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The Company and Parent shall take all action that may be necessary (under the Company Option Plan and otherwise) to effectuate the provisions of this Section 1.6.
(b) Subject to compliance with all applicable laws and regulations of the United States and all states, foreign countries or other governmental authorities, prior to the Closing, the Company and Parent shall offer to enter into a separate put-call agreement (“Put-Call Agreement”) with each holder of a French Stock Option, which Put-Call Agreement shall be in a form reasonably satisfactory to both Parent and the Company. From and after the Effective Time, pursuant to the Put-Call Agreement:
(i) each French Stock Option shall continue to be exercisable for shares of common stock of the Surviving Corporation;
(ii) upon the exercise of any French Stock Option, the holder thereof shall have the right to put to Parent, and Parent shall have the right to call from the holder thereof, all shares of common stock of the Surviving Corporation acquired upon such exercise in exchange for a number of shares of Parent Common Stock equal to the product of (x) the number of shares of common stock of the Surviving Corporation acquired upon such exercise, multiplied by (y) the Exchange Ratio, rounded down to the nearest whole number of shares; and
(2iii) all restrictions on the exercise of each French Stock Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of each French Stock Option shall otherwise remain unchanged; provided, however, that each such French Stock Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by the Surviving Corporation after the Effective Time. The exercise price per Company and Parent Share shall take all action that may be necessary (under the new option shall be equal French Stock Option Plan and otherwise) to effectuate the provisions of this Section 1.6(b). As to each French Stock Option for which a Put-Call Option is fully executed prior to the aggregate exercise price Effective Time, such French Stock Option shall continue to be exercisable for shares of common stock of the original option divided Surviving Corporation, and shall not be deemed an Eligible Stock Option or otherwise assumed by Parent at the total number of full Parent Shares Effective Time. Any French Stock Option for which a Put-Call Agreement is not in place prior to the Effective Time will be deemed an Eligible Stock Option and subject to the new option provisions of Section 1.6(a).
(c) Except as determined under (1) immediately aboveset forth in 1.6(b), PROVIDED at the Effective Time, Parent shall not be obligated to assume any Company Stock Option issued to residents of Taiwan and the United Kingdom to the extent that such exercise price shall be rounded up assumption would result in a violation of local law. All such Company Stock Options that are outstanding immediately prior to the nearest cent. The adjustment provided herein with respect Effective Time and not exercised prior to any ISOs shall the Effective Time will, pursuant to their respective terms, be cancelled and is intended to be effected in a manner that is consistent with section 424(a) null and void as of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 Effective Time.
(or other appropriate formd) or a post-effective amendment to the Registration Statement as promptly As soon as practicable after the Effective Time Time, Parent shall deliver to each holder of an outstanding Eligible Stock Option an appropriate notice setting forth such holder’s rights pursuant thereto. Parent shall take all corporate action necessary to reserve for purposes issuance a sufficient number of registering all shares of Parent Shares issuable after the Effective Time Common Stock for delivery upon exercise of the Employee Stock Options, and shall have such registration statement assumed or post-effective amendment become effective and comply, replaced Company Option pursuant to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timeterms set forth in this Section 1.6.
Appears in 4 contracts
Samples: Agreement and Plan of Merger and Reorganization (Entropic Communications Inc), Merger Agreement (Entropic Communications Inc), Agreement and Plan of Merger and Reorganization (Entropic Communications Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (i) At the Effective Time, each outstanding option to purchase Company Shares (a “Company Option”) under the Company Plans identified in Section 2.12 of the Employee Company Disclosure Letter as being the only Company Plans pursuant to which shares of Company Common Stock Options which is outstanding and unexercised at may be issued or benefits measured by the Effective Time value of shares of Company Common Stock may be obtained (the “Company Stock Plans”), whether vested or unvested, shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The acquire a number of shares of Parent Shares to be subject to the new option shall be Common Stock equal to the product (rounded up to the nearest whole number) of (x) the number of Shares shares of Company Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time and (y) the Exchange Ratio, at an exercise price per share (rounded down to the nearest whole cent) equal to (A) the exercise price per share of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days Company Option immediately preceding the day prior to the Effective TimeTime divided by (B) the Exchange Ratio; and
(2) The provided, however, that the exercise price per and the number of shares of Parent Share under Common Stock purchasable pursuant to the new Company Options shall be determined in a manner consistent with the requirements that must be met for Company Options to avoid classification as "deferred compensation" subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”); provided, further, that in the case of any Company Option to which Section 422 of the Code applies, the exercise price and the number of shares of Parent Common Stock purchasable pursuant to such option shall be equal to determined in accordance with the aggregate exercise price of the original option divided by the total number of full Parent Shares foregoing, subject to such adjustments as are necessary in order to satisfy the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section requirements of Section 424(a) of the Code. The duration Except as specifically provided above, following the Effective Time, each Company Option shall continue to be governed by the same terms and other terms conditions as were applicable under such Company Option immediately prior to the Effective Time. At or prior to the Effective Time, Company shall take all such action necessary to adopt appropriate amendments to the Company Stock Plans, including using its reasonable best efforts in accordance with Section 5.2 to cause its stockholders to approve such amendments, to the extent necessary to effectuate the provisions of this Section 1.6(d), and the Board of Directors of the new option Company shall adopt such other appropriate resolutions as may be necessary to effectuate the same provisions of this Section 1.6(d). At or prior to the Effective Time, Parent shall take all actions as that are necessary for the assumption of the original optionCompany Stock Plans pursuant to this Section 1.6(d), except that all references including the issuance (subject to Company shall be deemed Section 1.6(d)(ii)) and listing of Parent Common Stock as necessary to be references to Parent. effect the transactions contemplated by this Section 1.6(d).
(ii) Parent shall file with the SEC Securities and Exchange Commission (the “SEC”), within 5 business days following the Effective Time, a registration statement on Form S-8 (or other appropriate any successor form), registering under the Securities Act of 1933, as amended (the “Securities Act”), options to purchase shares of, and shares of, Parent Common Stock issued under the Company Stock Plan, and shall use its commercially reasonable efforts to maintain the effectiveness of such registration statement (and to maintain the current status of the prospectus or prospectuses contained therein and comply with any applicable state securities or “blue sky” laws) for so long as awards granted under the Company Stock Plans remain outstanding. As soon as reasonably practicable after the registration of such interests or a post-effective amendment shares, as applicable, Parent shall deliver to the Registration Statement as promptly as practicable holders of Company Options by any permissible method appropriate notices setting forth such holders’ rights pursuant to the respective Company Stock Plans and agreements evidencing the grants of such Company Options, and stating that such Company Options and agreements have been assumed by Parent in accordance with the applicable terms.
(iii) Without limiting the applicability of Sections 1.6(d)(i) and (ii), the Company shall take all necessary action to ensure that the Surviving Corporation will not be bound at the Effective Time by any options, or other rights, awards or arrangements under the Company Stock Plans that would entitle any Person after the Effective Time for purposes to acquire any shares of registering all Parent Shares issuable after Company Common Stock or to receive any payments in respect thereof with respect to exercises or conversions occurring following the Effective Time upon exercise of Time. At or prior to the Employee Effective Time, Company shall take all such action necessary to adopt appropriate amendments to the Company Stock OptionsPlans, and shall have including using its reasonable best efforts in accordance with Section 5.2 to cause its stockholders to approve such registration statement or post-effective amendment become effective and complyamendments, to the extent applicablenecessary to effectuate the provisions of this Section 1.6(d)(iii), with state securities or blue sky laws with respect thereto at and the Effective TimeBoard of Directors of the Company shall adopt such other appropriate resolutions as may be necessary to effectuate the provisions of this Section 1.6(d)(iii).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Internap Network Services Corp), Merger Agreement (Vitalstream Holdings Inc), Merger Agreement (Vitalstream Holdings Inc)
Employee Stock Options. Except Effective as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each the Company shall take all necessary action, including obtaining the consent of the Employee individual option holders, if necessary, to (i) terminate the Company’s 1996 Stock Options which Option Plan, 2000 Long-Term Incentive Plan, and 2007 Stock Incentive Plan, each as amended through the date of this Agreement (the “Company Stock Option Plans”), (ii) provide that each outstanding option to purchase shares of Company common stock granted under the Company Stock Option Plans (each, a “Company Stock Option”) that is outstanding and unexercised as of immediately prior to the Effective Time, whether or not vested or exercisable, shall become fully vested and exercisable as of the Effective Time, and (iii) cancel as of the Effective Time each Company Stock Option that is outstanding and unexercised at the Effective Time. Each holder of a Company Stock Option that is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at that has an exercise price determined as provided below per Share that is less than the Merger Consideration shall be entitled (and otherwise subject to the terms provisions of this Section 3.07) to be paid by the stock option plans Surviving Corporation immediately after the Effective Time, in exchange for the cancellation of Company governing the Employee Stock Options (the "such Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares subject to the original option and the Exchange RatioOption, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash (subject to any applicable withholding taxes) with respect to each Share subject to the holder of such Employee Company Stock Option equal to the fair market value immediately prior excess, if any, of the Merger Consideration over the applicable per share exercise price of such Company Stock Option (the “Option Payment”). Any such payment shall be subject to all applicable federal, state and local tax withholding requirements. The Company shall take all necessary action to approve the disposition of the Company Stock Options in connection with the transactions contemplated by this Agreement to the Effective Time extent necessary to exempt such dispositions under Rule 16b-3 of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior Act. Prior to the Effective Time; and
(2) The exercise price per , Parent Share under the new option shall cause to be equal wired to the aggregate exercise price of the original option divided an account designated by the total number of full Parent Shares subject Company an amount sufficient to enable the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up Company to make the nearest cent. The adjustment provided herein with respect payments required pursuant to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 3.07.
Appears in 3 contracts
Samples: Merger Agreement (Radyne Corp), Merger Agreement (Comtech Telecommunications Corp /De/), Merger Agreement (Comtech Telecommunications Corp /De/)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares shares of Acquiror Common Stock (the "New Option") in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company Stock Option Plans governing the Employee Stock Options (the "Company Stock Option Plans")Options):
(1i) The number of Parent Shares shares of Acquiror Common Stock to be subject to issued upon exercise of the new option New Option shall be equal to the product of the number of Shares subject shares of Company Common Stock to be issued upon exercise of the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective TimePer Share Merger Consideration; and
(2ii) The exercise price per Parent Share share of Acquiror Common Stock under the new option New Option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject shares of Acquiror Common Stock to be issued upon exercise of the new option New Option (as determined under paragraph (1i) immediately above); provided, PROVIDED however, that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option New Option shall be the same as that of the original option, except that all references to the Company shall be deemed to be references to ParentAcquiror. Parent Acquiror shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement a previously filed registration statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares shares of Acquiror Common Stock issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws Laws with respect thereto at the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Beneficial Corp), Merger Agreement (Household International Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant At the Effective Time (or, at Company's election, prior to expiration of the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms Amended Offer) all outstanding Options to acquire Shares shall immediately vest and conditions applicable to the Employee Stock Optionsbecome fully exercisable. At the Effective TimeTime (or, each at Company's election, prior to expiration of the Employee Stock Options which is outstanding and unexercised at the Effective Time Amended Offer) Company shall take such actions as may be converted automatically into an option necessary to purchase Parent Shares in an amount and at cause each Option with an exercise price determined as provided below of less than the Merger Consideration (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the a "Company Stock Option PlansLower Priced Option")):
(1) The number of Parent Shares to be subject amended to provide that the new option holder thereof need not tender any exercise price therefor and that upon exercise such holder shall be receive an amount of cash equal to the product of (x) the amount by which the Merger Consideration exceeds the exercise price per Share subject to such Lower Priced Option, and (y) the number of Shares subject issuable pursuant to the original option and the Exchange Ratiounexercised portion of such Lower Priced Option, PROVIDED that less any fractional Parent Shares resulting from required withholding of taxes. At such multiplication time, all Options other than Lower Price Options shall be rounded down converted into a right to the nearest share andreceive, except with respect to any upon exercise of such options which are intended to qualify as "incentive stock options" (as defined in section 422 including payment of the Code ("ISOs")exercise price of such options), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior product of (x) the Merger Consideration, and (y) the number of Shares issuable pursuant to the unexercised portion of such option, less any required withholding of taxes. Anything to the contrary in this Agreement notwithstanding, no payment shall be made pursuant to this Section 8.5 that would be inconsistent with and would violate Article 12 of Company's 1989 Stock Incentive Plan. Prior to the Expiration Date of the Amended Offer Company shall cancel the converging options issued to Xxxxxxx Xxxxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxxxx, Xxxxxx Xxxxx and Xxxxx Xxxxx under Company's 1989 Stock Incentive Plan and shall use its best efforts to cancel all other converging options issued under Company's 1989 Stock Incentive Plan. The Company shall take all action necessary to ensure that following the Effective Time no participant in any Plan shall have any right thereunder to acquire equity securities of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above)Parent, PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein Company, Sub, Surviving Corporation or any subsidiary thereof or any cash payment with respect thereto, other than cash amounts payable to any ISOs shall be and is intended holders of Options pursuant to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 8.5.
Appears in 2 contracts
Samples: Merger Agreement (Transitional Hospitals Corp), Merger Agreement (Transitional Hospitals Corp)
Employee Stock Options. Except At the Effective Time or such earlier time as is provided in this Agreement or pursuant to the provisions of any Plan applicable stock option plan or employee or director stock option or agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the all Employee Stock OptionsOptions shall become vested and exercisable in full. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares shares of Bethlehem Common Stock in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of the Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares shares of Bethlehem Common Stock to be subject to the new option shall be equal to the product of the number of Shares shares of Company Common Stock subject to the original option and the Exchange RatioConversion Number; provided, PROVIDED however, that any fractional Parent Shares shares of Bethlehem Common Stock resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Timeshare; and
(2) The exercise price per Parent Share share under the new option shall be equal to (a) the aggregate exercise price of the original option divided by (b) the total number of full Parent Shares shares of Bethlehem Common Stock subject to the new option (as determined under (1) immediately above)option; provided, PROVIDED however, that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs incentive stock options shall be and is intended to be effected in a manner that is consistent with section Section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to the Company shall be deemed to be references to ParentBethlehem and the vesting of all options shall be accelerated to the Effective Time. Parent Bethlehem shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time date hereof for purposes of registering all Parent Shares shares of Bethlehem Common Stock issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timetime.
Appears in 2 contracts
Samples: Merger Agreement (Bethlehem Steel Corp /De/), Merger Agreement (Lukens Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under Ibex's 1992 Stock Option Plan, whether vested or unvested (a "Ibex Option"), shall be assumed by Castelle in accordance with the terms (as in effect as of the Employee date of this Agreement) of Ibex's 1992 Stock Options which is outstanding Option Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Ibex Option is evidenced. All rights with respect to Ibex Common Stock under outstanding Ibex Options shall thereupon be converted into rights with respect to Castelle Common Stock. Accordingly, from and after the Effective Time, (a) each Ibex Option assumed by Castelle may be exercised solely for shares of Company governing Castelle Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares to be shares of Castelle Common Stock subject to the new option each such assumed Ibex Option shall be equal to the product of the number of Shares shares of Ibex Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Ibex Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction (as hereinafter defined), rounded down to the nearest whole number of such fractional Parent Shares calculated based on shares of Castelle Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Castelle Common Stock issuable upon exercise of each such assumed Ibex Option shall be determined by dividing the exercise price per share of Ibex Common Stock subject to such Ibex Option, as in effect immediately preceding the day prior to the Effective Time; and
, by the Applicable Fraction (2) The as hereinafter defined), and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent. The adjustment provided herein with respect to any ISOs , and (d) all restrictions on the exercise of each such assumed Ibex Option shall be continue in full force and is intended to be effected in a manner that is consistent with section 424(a) of effect, and the Code. The duration term, exercisability, vesting schedule and other terms provisions of the new option such Ibex Option shall otherwise remain unchanged; provided, however, that each such assumed Ibex Option shall, in accordance with its terms, be the same subject to further adjustment as that of the original optionappropriate to reflect any stock split, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (reverse stock split, stock dividend, recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Castelle after the Effective Time for purposes Time. Ibex and Castelle shall take all action that may be necessary (under Ibex's 1992 Stock Option Plan and otherwise) to effectuate the provisions of registering all Parent Shares this Section 1.6. Following the Closing, Castelle will send to each holder of an assumed Ibex Option a written notice setting forth (i) the number of shares of Castelle Common Stock subject to such assumed Ibex Option, and (ii) the exercise price per share of Castelle Common Stock issuable after the Effective Time upon exercise of such assumed Ibex Option. For purposes of this Section 1.6, the Employee "Applicable Fraction" shall mean the exchange ratio identified in Section 1.5 which is utilized to convert each share of Ibex Common Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, outstanding immediately prior to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective TimeMerger into Castelle Common Stock.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization and Merger (Castelle \Ca\), Agreement and Plan of Reorganization and Merger (Castelle \Ca\)
Employee Stock Options. Except as provided in this Agreement or The Company's Stock Option Plan (the "Company Option Plan") and all options to acquire Shares granted pursuant to the provisions of any Company Option Plan or employee or director stock option agreement as in effect that are issued and outstanding immediately before the Effective Time (collectively, the "Options"), shall be assumed by the Parent on the date hereofEffective Time and shall continue in effect, from the date hereof Company will not accelerate the vesting or exercisability as an option plan of or otherwise modify Parent and as options issued by Parent, respectively, in accordance with the terms and conditions applicable by which they are governed immediately before the Effective Time (and each Option that prior to the Employee Stock OptionsEffective Time is, or as a result of the Merger becomes, fully vested and exercisable as a result of the Merger shall continue as a fully vested and exercisable option of Parent), subject to the adjustments set forth in the next sentence. At On the Effective Time, each Option shall, by virtue of the Employee Stock Options which is outstanding Merger and unexercised at without any action on the Effective Time part of the holder thereof, be automatically adjusted to provide that (a) the number and type of shares issuable upon exercise of such Option shall be converted automatically into an option to purchase that number of shares of Parent Shares in an amount and at an exercise price determined as provided below Common Stock (and otherwise subject rounded off to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The nearest whole number of Parent Shares to be subject to the new option shall be shares) equal to the product of the number of Shares subject to issuable upon exercise of such Option immediately before the original option and Effective Time, multiplied by the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to and (b) the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per share of Parent Share Common Stock under the new option such Option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option that amount (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent) equal to the exercise price per Share under such Option immediately before the Effective Time, divided by the Exchange Ratio. The adjustment provided herein with respect As soon as practicable (but in no event later than thirty days) after the Effective Time, Parent shall deliver to any ISOs the holders of Company Options appropriate notices setting forth such holders' rights pursuant to the Company Option Plan and that the agreements evidencing the grants of such Options shall be and is intended to be effected continue in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be effect on the same as that terms and conditions (subject to the adjustments required by this Section 2.6 after giving effect to the Merger). At or before the Effective Time, Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon exercise of Company Options assumed in accordance with this Section 2.6. Within thirty business days after the original optionEffective Time, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or any successor or other appropriate formforms) or a post-effective amendment with respect to the Registration Statement as promptly as practicable after the Effective Time for purposes shares of registering Parent Common Stock subject to any Company Options held by all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, persons with respect to whom registration on Form S-8 is available and shall have use all commercially reasonable efforts to maintain the effectiveness of such registration statement or post-effective amendment become effective registration statements (and comply, to maintain the extent applicable, with state securities current status of the prospectus or blue sky laws with respect thereto at the Effective Timeprospectuses contained therein) for so long as such Options remain outstanding.
Appears in 2 contracts
Samples: Merger Agreement (RMH Teleservices Inc), Merger Agreement (Nco Group Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant The Company will use its reasonable best efforts to the provisions obtain from each holder of any Plan or employee or director a stock option agreement as in effect on the date hereof(a "Company Stock Option") outstanding, from the date hereof Company will whether or not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised exercisable at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount under the Company's Stock Option Plan and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Directors Stock Options Option Plan (the "Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new , such holder's agreement that such option shall be canceled by the Company immediately prior to the Effective Time. Each holder of a canceled Company Stock Option shall be entitled to receive at the Effective Time or as soon as practicable thereafter from the Company in consideration for the cancellation of such Company Stock Option an amount (the "Option Spread") equal to the product of (i) the number of Shares previously subject to such Company Stock Option and (ii) the original option and excess, if any, of the Exchange RatioPer Share Amount over the exercise price per share of Company Common Stock previously subject to such Company Stock Option. Each holder of a Company Stock Option shall also be given the right to tender such options, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down whether or not exercisable, pursuant to the nearest share and, except with respect Offer and to any options which are intended receive the Option Spread pursuant to qualify as "incentive stock options" (as defined the Offer; and each holder of Warrants referred to in section 422 of Section 3.3 shall also be given the Code ("ISOs")), Parent shall pay right to tender such Warrants pursuant to the Offer and to receive an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to product of (i) the Effective Time number of such fractional Parent Shares calculated based which may be purchased on exercise of the average closing price on Warrants and (ii) the New York Stock Exchange for excess, if any, of the last five trading days immediately preceding Per Share Amount over the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate share exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above)Warrants. In any such case, PROVIDED that such exercise price payment, after reduction for applicable tax withholding, if any, shall be rounded up made in cash. Each holder of a Company Stock Option or Warrants shall be given an opportunity to submit a Form W-9 and/or whatever other forms may be necessary to prevent any tax from being withheld from the nearest centamounts otherwise payable to such holder hereunder. The adjustment provided herein Company shall take all actions necessary and appropriate so that all stock option or other equity based plans maintained with respect to any ISOs the Shares, including the Company Plans, shall be and is intended to be effected in a manner that is consistent with section 424(a) terminate as of the Code. The duration Effective Time and the provisions in any other terms Benefit Plan providing for the issuance, transfer or grant of any capital stock of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement deleted as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Intensiva Healthcare Corp), Merger Agreement (Select Medical of Mechanicsburg Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, without any action on the part of any holder of any such option, each of the Employee Southside Stock Options which Option that is outstanding and unexercised at the Effective Time immediately prior thereto shall cease to represent a right to acquire shares of Southside Common Stock and shall be converted automatically into an option to purchase Parent Shares shares of Surviving Corporation Common Stock in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing Southside Stock Plan under which it was issued and the Employee Southside Stock Option Agreement by which it is evidenced and the agreements evidencing grants thereunder, provided that all SouthSide Stock Options (shall be exercisable throughout their stated terms regardless of any provisions therein pursuant to which they would otherwise terminate or expire at an earlier time due to the "Company Stock Option Plans")termination of employment of the holder thereof):
(1i) The number of Parent Shares shares of Surviving Corporation Common Stock to be subject to the new option each such Southside Stock Option shall be equal to the product of (A) the number of Shares subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 shares of Southside Common Stock purchasable upon exercise of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Southside Stock Option equal to the fair market value immediately prior to the Effective Time of and (B) 1.39 (as such fractional Parent Shares calculated based on exchange ratio may be adjusted as provided herein), the average closing price on product being rounded, if necessary, up or down, to the New York nearest whole share; provided, however, that each Southside Stock Exchange for the last five trading days immediately preceding the day prior Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, stock dividend, recapitalization or other similar transaction subsequent to the Effective Time; and
(2ii) The exercise price per Parent Share share of Surviving Corporation Common Stock under the new option shall be equal to the aggregate exercise price per share of Southside Common Stock under the original option Southside Stock Option immediately prior to the Effective Time divided by the total number of full Parent Shares subject to the new option 1.39 (as determined under (1) immediately abovesuch exchange ratio may be adjusted as provided herein), PROVIDED provided that such exercise price shall be rounded up to the nearest whole cent. The adjustment provided herein with respect .
(b) At the Effective Time, by virtue of the Merger and without any action on the part of any holder of any such option, each option to any ISOs purchase shares of Allegiant Common Stock (each, an "Allegiant Option") that is outstanding and unexercised immediately prior thereto shall be assumed by the Surviving Corporation and is intended shall cease to be effected in a manner that is consistent with section 424(a) represent the right to acquire shares of the Code. The duration Allegiant Common Stock and other terms of the new option shall be converted into an option to purchase shares of Surviving Corporation Common Stock, on the same terms and conditions as that of are in effect immediately prior to the original optionEffective Time, except that all references to Company Allegiant shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective TimeSurviving Corporation.
Appears in 2 contracts
Samples: Merger Agreement (Southside Bancshares Corp), Merger Agreement (Allegiant Bancorp Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant At the Effective Time (or, at Company's election, prior to expiration of the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms Amended Offer) all outstanding Options to acquire Shares shall immediately vest and conditions applicable to the Employee Stock Optionsbecome fully exercisable. At the Effective TimeTime (or, each at Company's election, prior to expiration of the Employee Stock Options which is outstanding and unexercised at the Effective Time Amended Offer) Company shall take such actions as may be converted automatically into an option necessary to purchase Parent Shares in an amount and at cause each Option with an exercise price determined as provided below of less than the Merger Consideration (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the a "Company Stock Option PlansLower Priced Option")):
(1) The number of Parent Shares to be subject amended to provide that the new option holder thereof need not tender any exercise price therefor and that upon exercise such holder shall be receive an amount of cash equal to the product of (x) the amount by which the Merger Consideration exceeds the exercise price per Share subject to such Lower Priced Option, and (y) the number of Shares subject issuable pursuant to the original option and the Exchange Ratiounexercised portion of such Lower Priced Option, PROVIDED that less any fractional Parent Shares resulting from required withholding of taxes. At such multiplication time, all Options other than Lower Price Options shall be rounded down converted into a right to the nearest share andreceive, except with respect to any upon exercise of such options which are intended to qualify as "incentive stock options" (as defined in section 422 including payment of the Code ("ISOs")exercise price of such options), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior product of (x) the Merger Consideration, and (y) the number of Shares issuable pursuant to the unexercised portion of such option, less any required withholding of taxes. Anything to the contrary in this Agreement notwithstanding, no payment shall be made pursuant to this Section 8.5 that would be inconsistent with and would violate Article 12 of Company's 1989 Stock Incentive Plan. Prior to the Expiration Date of the Amended Offer Company shall cancel the converging options issued to Richard Conte, Wendy Simpson, James Laughlin, Ronald Odey and Julia Koxxx xxxxx Xxxpaxx'x 0000 Xxxck Xxxxxxxxx Xxxn xxx xxxxx xse itx xxxx xxxxrts to cancel all other converging options issued under Company's 1989 Stock Incentive Plan. The Company shall take all action necessary to ensure that following the Effective Time no participant in any Plan shall have any right thereunder to acquire equity securities of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above)Parent, PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein Company, Sub, Surviving Corporation or any subsidiary thereof or any cash payment with respect thereto, other than cash amounts payable to any ISOs shall be and is intended holders of Options pursuant to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 8.5.
Appears in 2 contracts
Samples: Merger Agreement (Vencor Inc), Merger Agreement (Transitional Hospitals Corp)
Employee Stock Options. Except as provided in this Agreement or pursuant (a) Prior to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each the Company shall have adopted such resolutions, taken such actions and obtained any necessary consents (including the consent of the Employee individual option holders or awardees, if necessary) as may be required to provide that (i) (A) every option to acquire shares of Company Common Stock Options which is outstanding and unexercised at the Effective Time (the “Company Stock Options”) shall be converted automatically into assumed by Parent as of the Effective Time and shall thereafter be deemed to constitute an option to purchase Parent Shares in an amount acquire, on the same terms and at an exercise price determined conditions as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "were applicable under such Company Stock Option Plans")):
immediately prior to the Effective Time, the number (1rounded to the nearest whole number) The number of shares of Parent Shares to be subject to the new option shall be equal to the product of Stock determined by multiplying the number of Shares shares of Company Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Company Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on by the average closing Exchange Ratio, at a price on the New York Stock Exchange for the last five trading days immediately preceding the day prior per share (rounded to the Effective Time; and
(2nearest whole cent) The equal to the exercise price per Parent Share under the new option shall be equal share of Company Common Stock otherwise purchasable pursuant to the aggregate exercise price of the original option such Company Stock Option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above)Exchange Ratio; provided, PROVIDED however, that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs Company Stock Option that is an incentive stock option within the meaning of the Code, such substitution shall be and is intended to be effected in a manner that is consistent accordance with section Section 424(a) of the Code. The duration ; or (B) the holder of such Company Stock Option shall have agreed to surrender and other terms of the new option shall be the same as that of the original option, except that all references to cancel such Company shall be deemed Stock Option in full in exchange for a payment (to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after made at the Effective Time by Parent) equal to the difference, if any, between $15.61 per share of Company Common Stock and the applicable per-share exercise price, multiplied by the number of shares of Company Common Stock subject to such Company Stock Option and then vested and exercisable; and (ii) each holder of an outstanding interest in the Company’s directors share plan effective as of July 3, 1995 (the “Directors’ Share Plan”) shall have agreed to surrender and cancel such interest in exchange for purposes of registering all Parent Shares issuable after a payment (to be made at the Effective Time upon exercise by Parent) equal to $15.61 per share of Company Common Stock represented by such interest.
(b) The Company shall take all action reasonably necessary to approve the disposition of the Employee Company Stock Options, and shall have Options in connection with the Transactions so as to exempt such registration statement or post-effective amendment become effective and comply, to dispositions under Rule 16b-3 of the Exchange Act. To the extent applicable, with state securities any option holder becomes a director or blue sky laws with respect thereto executive officer of Parent at or before the Effective Time, Parent shall take all action reasonably necessary to approve the issuance of any replacement option so as to exempt such award under Section 16b-3 of the Exchange Act.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each of the Employee all rights with respect to Seller Common Stock pursuant to Seller Stock Options which is that are outstanding and unexercised at the Effective Time Time, whether or not then exercisable, shall be converted automatically into an option and become rights with respect to purchase Parent Shares Mercantile Common Stock, and Mercantile shall assume all Seller Stock Options in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the stock option plans of Company governing Seller Stock Plan under which it was issued and the Employee Stock Options (the "Company Seller Stock Option Plans")):
Agreement by which it is evidenced. From and after the Effective Time, (1i) The each Seller Stock Option assumed by Mercantile shall be exercised solely for shares of Mercantile Common Stock, (ii) the number of Parent Shares to be shares of Mercantile Common Stock subject to the new option each Seller Stock Option shall be equal to the product of the number of Shares shares of Seller Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Seller Stock Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio and (iii) the per share exercise price under each Seller Stock Option shall be adjusted by dividing the per share exercise price under such Seller Stock Option by the Exchange Ratio and rounding down to the nearest cent; provided, however, that the terms of such fractional Parent Shares calculated based on the average closing price on the New York each Seller Stock Exchange for the last five trading days immediately preceding the day prior Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, stock dividend, recapitalization or other similar transaction subsequent to the Effective Time; and
(2) The exercise price per Parent Share under . It is intended that the new option foregoing assumption shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected undertaken in a manner that is consistent with section 424(a) of will not constitute a "modification" as defined in the Code. , as to any Seller Stock Option that is an "incentive stock option" as defined under the Code.
(b) The duration and other terms shares of Mercantile Common Stock covered by the new option Seller Stock Options shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file covered by an effective registration statement filed on Form S-8 with the SEC a and shall be duly authorized, validly issued and in compliance with all applicable federal and state securities laws, fully paid and nonassessable and not subject to or in - 45 - 52 violation of any preemptive rights. Mercantile shall maintain the effectiveness of such registration statement on Form S-8 (or other appropriate formand maintain current status of the prospectus contained therein) or a post-effective amendment to the Registration Statement for as promptly long as practicable such options remain outstanding. Mercantile shall at and after the Effective Time have reserved sufficient shares of Mercantile Common Stock for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and issuance with respect to such options. Mercantile shall have such registration statement or post-effective amendment become effective and comply, also take any action required to the extent applicable, with be taken under any applicable state securities or blue sky or securities laws in connection with respect thereto at the Effective Timeissuance of such shares.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify In accordance with the terms of the Target’s 1991 Incentive Stock Option Plan, as amended and conditions applicable to the Target’s 1998 Key Employee Stock Options. At Option Plan (the “Stock Option Plans”), each outstanding option to purchase Target Common Stock granted under the Stock Option Plans shall, as of the Effective Time, each become fully vested regardless of the Employee vesting schedule contained in any stock option agreement or in any of the Stock Options which is Option Plans. Each outstanding option to purchase Target Common Stock granted under the Stock Option Plans or otherwise shall be canceled at the Effective Time, and unexercised each holder of a canceled option (whether issued pursuant to a Stock Option Plan or otherwise) shall be entitled to receive, at the Effective Time shall be converted automatically into an option to purchase Parent Shares or as soon as practicable thereafter, from the Surviving Corporation, in consideration for the cancellation of such option, an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be in cash equal to the product of (i) the number of Shares shares of Target Common Stock previously subject to the original such option and (ii) the Exchange Ratioexcess, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share andif any, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code Merger Consideration over the exercise price per share of Target Common Stock previously subject to such option ("ISOs"the “Spread”)), Parent shall pay an . The amount in of cash to be delivered to the holder of any such Employee Stock Option equal options shall be subject to reduction to satisfy applicable withholding tax obligations. With respect to each such option issued by the fair market value immediately prior Target, Target shall take, or cause to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day be taken, prior to the Effective Time; and
(2) The exercise price per Parent Share under the new , all such action so that each such option shall be automatically canceled as of the Effective Time and the holders of each such option shall only be entitled to receive from the Surviving Corporation, at the Effective Time or as soon as practicable thereafter, an amount in cash equal to the aggregate exercise price Spread, if any, in exchange for the cancellation of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that each such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references subject in each case to Company shall be deemed to be references to Parentapplicable withholding tax obligations. Parent shall file Notwithstanding the foregoing, Target may, with the SEC a registration statement consent of Merger Sub, by separate agreement with one or more holders of such options, agree with such holders on Form S-8 (or other appropriate form) or a post-effective amendment alternate treatment of such options, which may provide for conversion of such options into the right to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all receive options to purchase Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective TimeCommon Stock.
Appears in 1 contract
Samples: Merger Agreement (Autocam Corp/Mi)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing that is then outstanding under the Employee Company's 1995 Stock Options Option Plan (the "Company Stock Option PlansPlan")):
, whether vested or unvested (1a "Company Option"), shall be substituted by Parent with a stock option under Parent's 1999 Omnibus Equity Plan (or an equivalent plan) The (the "Parent Plan") with a term, exercisability and vesting schedule equivalent to such Company Option and with all other terms in accordance with the Parent Plan and as set forth in this Section 1.6 (a "Parent Substituted Option"). Accordingly, from and after the Effective Time, (a) each Parent Substituted Option substituted for a Company Option may be exercised solely for shares of Parent Common Stock, (b) the number of shares of Parent Shares to be Common Stock subject to the new option each Parent Substituted Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each Parent Substituted Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such substituted Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Exchange Ratio, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (d) the Parent Substituted Option shall contain all restrictions on the exercise of each such substituted Company Option, which shall continue in full force and effect; provided, however, that each such Parent Substituted Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The adjustment provided herein with respect Company and Parent shall take all action that may be necessary (under the Company Plan, the option agreements thereunder and otherwise) to any ISOs shall be effectuate the provisions of this Section 1.6. Following the Closing, Parent will send to each holder of a substituted Company Option a Stock Option Grant Notice and is intended to be effected in a manner that is consistent with section 424(a) of Stock Option Agreement under the Code. The duration and other Parent Plan reflecting the terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time Substituted Option for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have execution by such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timeholder.
Appears in 1 contract
Samples: Merger Agreement (Medibuy Com Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant (a) Prior to the provisions of Closing Date, the Company shall take or cause to be taken such action as is necessary: (i) to cause any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option unexercisable options to purchase Parent Shares in an amount and at an exercise price determined as provided below shares of Company Common Stock (and otherwise subject to the terms of the each, a “Stock Option”) granted under any stock option plans or other equity-related plans of Company governing the Employee Company, including the Merchants & Manufacturers Bancorporation, Inc. 1996 Incentive Stock Options Option Plan and the Merchants & Manufacturers Bancorporation, Inc. 2006 Stock Incentive Plan (collectively, the "“Company Stock Option Plans")):
(1”) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares subject to the original option accelerated and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined become exercisable in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value full effective immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and(ii) to effectuate the termination upon the Effective Time of all Stock Options outstanding at such time (without regard to the exercise price of such Stock Options); and (iii) to cause, pursuant to the Company Stock Option Plans, each outstanding Stock Option to represent upon the Effective Time solely the right to receive, in accordance with this Section 2.07, a lump sum cash payment in the amount of the Option Consideration, if any, with respect to such Stock Option and to no longer represent the right to purchase Company Common Stock or any other equity security of the Company, the Buyer, NewCo, the Surviving Corporation or any other Person or any other consideration.
(2b) The Each holder of a Stock Option shall receive from the Buyer or from NewCo or its successor, in respect and in consideration of each Stock Option so cancelled, as soon as reasonably practicable following the Effective Time, an amount equal to the product of (i) the excess, if any, of (A) the Per Share Merger Consideration over (B) the exercise price per Parent Share under the new option shall be equal to the aggregate exercise price share of the original option divided such Stock Option, multiplied by (ii) the total number of shares of Company Common Stock covered by such 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; provided, however, the payment of the Option Consideration shall be conditioned on an option-holder executing an acknowledgment that the Option Consideration represents the full Parent Shares amount due for all Stock Options held by such option-holder. In the event that the exercise price of any Stock Option is equal to or greater than the Per Share Merger Consideration, the Option Consideration for such Stock Option shall be zero and such Stock Option shall be cancelled and have no further force or effect.
(c) As soon as reasonably practicable following the execution of this Agreement, the Company shall mail to each Person who is a holder of Stock Options a letter describing the treatment of and payment for such Stock Options pursuant to this Section 2.07 and providing instructions for use in obtaining payment for such Stock Options.
(d) The Company hereby represents and warrants to the Buyer that the maximum number of shares of Company Common Stock subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up issuance pursuant to the nearest cent. The adjustment provided herein with respect exercise of Stock Options is not and shall not be at or prior to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timemore than 100,113 shares.
Appears in 1 contract
Samples: Merger Agreement (Merchants & Manufacturers Bancorporation Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is then outstanding Company Option (as defined in Section 2.3(b)) and unexercised at the Effective Time shall be converted automatically into an each other outstanding option to purchase Parent Shares Common Stock of the Company issued in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of this Agreement, whether vested or unvested, shall be assumed by Parent in accordance with the terms (as in effect as of the date of this Agreement) of such Company Stock Option Plan under which such Company Option was issued and the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down, to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent. The adjustment provided herein with respect to any ISOs , and (d) all restrictions on the exercise of each such assumed Company Option shall be continue in full force and is intended to be effected in a manner that is consistent with section 424(a) of effect, and the Code. The duration term, exercisability, vesting schedule and other terms provisions of the new option such Company Option shall otherwise remain unchanged; provided however, that each such assumed Company Option shall, in accordance with its terms, be the same subject to further adjustment as that of the original optionappropriate to reflect any stock split, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (reverse stock split, stock dividend, recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Parent after the Effective Time for purposes Time. The Company and Parent shall take all action that may be necessary (under all Company Stock Option Plans and otherwise) to effectuate the provisions of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.6.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each of the Employee all rights with respect to Seller Common Stock pursuant to Seller Stock Options which is that are outstanding and unexercised at the Effective Time Time, whether or not then exercisable, shall be converted automatically into an option and become rights with respect to purchase Parent Shares Mercantile Common Stock, and Mercantile shall assume all Seller Stock Options in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the stock option plans of Company governing Seller Stock Plan under which it was issued and the Employee Stock Options (the "Company Seller Stock Option Plans")):
Agreement by which it is evidenced. From and after the Effective Time, (1i) The each Seller Stock Option assumed by Mercantile shall be exercised solely for shares of Mercantile Common Stock, (ii) the number of Parent Shares to be shares of Mercantile Common Stock subject to the new option each Seller Stock Option shall be equal to the product of the number of Shares shares of Seller Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Seller Stock Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio and (iii) the per share exercise price under each Seller Stock Option shall be adjusted by dividing the per share exercise price under such Seller Stock Option by the Exchange Ratio and rounding down to the nearest cent; provided, however, that the terms of such fractional Parent Shares calculated based on the average closing price on the New York each Seller Stock Exchange for the last five trading days immediately preceding the day prior Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, stock dividend, recapitalization or other similar transaction subsequent to the Effective Time; and
(2) The exercise price per Parent Share under . It is intended that the new option foregoing assumption shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected undertaken in a manner that is consistent with section 424(a) of will not constitute a "modification" as defined in the Code. , as to any Seller Stock Option that is an "incentive stock option" as defined under the Code.
(b) The duration and other terms shares of Mercantile Common Stock covered by the new option Seller Stock Options shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file covered by an effective registration statement filed on Form S-8 with the SEC a and shall be duly authorized, validly issued and in compliance with all applicable federal and state securities laws, fully paid and nonassessable and not subject to or in violation of any preemptive rights. Mercantile shall maintain the effectiveness of such registration statement on Form S-8 (or other appropriate formand maintain current status of the prospectus contained therein) or a post-effective amendment to the Registration Statement for as promptly long as practicable such options remain outstanding. Mercantile shall at and after the Effective Time have reserved sufficient shares of Mercantile Common Stock for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and issuance with respect to such options. Mercantile shall have such registration statement or post-effective amendment become effective and comply, also take any action required to the extent applicable, with be taken under any applicable state securities or blue sky or securities laws in connection with respect thereto at the Effective Timeissuance of such shares.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under the Company's 1998 Stock Incentive Plan, whether vested or unvested (a "COMPANY OPTION"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee date of this Agreement) of the Company's 1998 Stock Options which is outstanding Incentive Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock as set forth below. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The adjustment provided herein with respect Company and Parent shall take all action that may be necessary (under the Company's 1998 Stock Incentive Plan and otherwise) to any ISOs shall be effectuate the provisions of this Section 1.6. Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and is intended to be effected in a manner that is consistent with section 424(a(ii) the exercise price per share of Parent Common Stock issuable upon exercise of such assumed Company Option. To the Code. The duration and other terms of the new option shall be the same as that of the original optionextent necessary, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC SEC, as soon as reasonably practical but in any event within thirty (30) days after the Closing Date, a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to registering the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, Company Options assumed by Parent pursuant to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.6.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each of the Employee Stock Options which is then outstanding Company Option and unexercised at the Effective Time shall be converted automatically into an Company Warrant and each other outstanding option to purchase Parent Shares Company Common Stock issued in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of this Agreement, whether vested or unvested, shall be assumed by Parent in accordance with the terms (as in effect as of the date of this Agreement) of such Company Stock Option Plan under which such Company Option was issued and the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options and with respect to any Company capital stock under outstanding Company Warrants shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (i) each Company Option and Company Warrant assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (ii) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option and Company Warrant shall be equal to the product number of shares of Company Common Stock that were subject to such Company Option and the number of Shares shares of Company capital stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value Company Warrant immediately prior to the Effective Time multiplied by the Company Option Exchange Ratio (as defined below) rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, and (iii) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option or Company Warrant shall be determined by dividing the exercise price per share of Company Common Stock or Company capital stock, as applicable, subject to such Company Option or Company Warrant, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by such Company Option Exchange Ratio, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent. The adjustment provided herein with respect to any ISOs , and all restrictions on the exercise of each such assumed Company Option or Company Warrant shall be continue in full force and is intended to be effected in a manner that is consistent with section 424(a) of effect, and the Code. The duration term, exercisability, vesting schedule and other terms provisions of the new option such Company Option or Company Warrant shall otherwise remain unchanged; provided, however, that each such assumed Company Option or Company Warrant shall, in accordance with its terms, be the same subject to further adjustment as that of the original optionappropriate to reflect any stock split, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (reverse stock split, stock dividend, recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Parent after the Effective Time for purposes of registering all Parent Shares issuable after Time. It is the Effective Time upon exercise intention of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time.parties
Appears in 1 contract
Samples: Merger Agreement (Microtune Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant Prior to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, the Seller shall take all such action as is necessary to terminate The UST Corp. Stock Compensation Plan, The 1993 Main Street Community Xxxxxxx, Xxx. Xxock Option Plan, The 1995 Affiliated Community Bancorp. Inc. Stock Option Plan, The 1986 Lexington Savings Bank Stock Option and Stock Appreciation Rights Plan, The 1994 Lexington Savings Bank Stock Option Plan, The Somerset Savings Bank 1986 Incentive Stock Option Plan, The Somerset Savings Bank 1995 Equity Incentive Plan, The 1995 UST Director's Stock Option Plan and The 1996 UST Director's Stock Option Plan, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option as amended to purchase Parent Shares in an amount and at an exercise price determined as provided below date (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (collectively, the "Company Seller Stock Option Plans")):
(1) The number , and shall provide written notice to each holder of Parent Shares a then outstanding stock option to be subject purchase shares of Seller Common Stock pursuant to the new Seller Stock Option Plans (whether or not such stock option is then vested or exercisable), that such stock option shall be, as at the date of such notice, exercisable in full and that such stock option shall terminate at the Effective Time and that, if such stock option is not exercised or otherwise terminated before the Effective Time, such holder shall be entitled to receive in cancellation of such option a cash payment from the Seller at the Closing in an amount equal to the product excess of the Merger Consideration over the per share exercise price of such stock option, multiplied by the number of Shares shares of Seller Common Stock covered by such stock option, subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down required withholding of taxes. Subject to the nearest share andforegoing, except with respect to any the Seller Stock Option Plans and all options which are intended to qualify as "incentive stock options" (as defined in section 422 of issued thereunder shall terminate at the Code ("ISOs")), Parent shall pay an amount in cash Effective Time. The Seller hereby represents and warrants to the holder Buyer that the maximum number of such Employee shares of Seller Common Stock subject to issuance pursuant to the exercise of stock options issued and outstanding under the Seller Stock Option equal to the fair market value immediately Plans is not and shall not be at or prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timemore than 2,386,818.
Appears in 1 contract
Samples: Merger Agreement (Ust Corp /Ma/)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under the Company's 1998 Stock Plan, whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee date of this Agreement) of the Company's 1998 Stock Options which is outstanding Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced and the Company's repurchase right with respect to any unvested shares acquired by the exercise of Company governing Options shall be assigned to Parent. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Employee Stock Options Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Parent Common Stock, (b) the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to such Company Option immediately prior to the original option and Effective Time multiplied by the Exchange RatioApplicable Fraction, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest whole number of shares of Parent Common Stock, (c) the per share andexercise price for the Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, except with respect as in effect immediately prior to any options which are intended the Effective Time, by the Applicable Fraction, and rounding the resulting exercise price up to qualify as the nearest whole cent, and (d) each assumed Company Option designated an "incentive stock optionsoption" (as defined in section Section 422 of the Code ("ISOsISO")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value ) immediately prior to the Effective Time shall remain an ISO; and (e) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such fractional Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to after the Effective Time; and
. The Company and Parent shall take all action that may be necessary (2under the Company's 1998 Stock Plan and otherwise) The to effectuate the provisions of this Section 1.6. Each holder of a Company Option will receive credit for time served as an employee of the Company for the purposes of the vesting schedule of such Company Option assumed by the Parent. Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and (ii) the exercise price per share of Parent Share under Common Stock issuable upon exercise of such assumed Company Option. As soon as reasonably practicable, and in any event within 60 days after the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above)Closing Date, PROVIDED that unless such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and 60 day period is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original optionimpracticable, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC SEC, a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to registering the Registration Statement as promptly as practicable after the Effective Time for purposes shares of registering all Parent Shares Common Stock issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, Company Options assumed by Parent pursuant to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.6.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is then outstanding Company Option (as defined in Section 2.3(b)) and unexercised at the Effective Time shall be converted automatically into an each other outstanding option to purchase Parent Shares Common Stock of the Company issued in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of this Agreement, whether vested or unvested, shall be assumed by Parent in accordance with the terms (as in effect as of the date of this Agreement) of such Company Stock Option Plan under which such Company Option was issued and the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent. The adjustment provided herein with respect to any ISOs , and (d) all restrictions on the exercise of each such assumed Company Option shall be continue in full force and is intended to be effected in a manner that is consistent with section 424(a) of effect, and the Code. The duration term, exercisability, vesting schedule and other terms provisions of the new option such Company Option shall otherwise remain unchanged; provided however, that each such assumed Company Option shall, in accordance with its terms, be the same subject to further adjustment as that of the original optionappropriate to reflect any stock split, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (reverse stock split, stock dividend, recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Parent after the Effective Time for purposes Time. The Company and Parent shall take all action that may be necessary (under all Company Stock Option Plans and otherwise) to effectuate the provisions of registering all this Section 1.6. It is the intention of the parties that the Company Options assumed by Parent Shares issuable after qualify following the Effective Time upon exercise as incentive stock options as defined in Section 422 of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, Code to the extent applicable, with state securities or blue sky laws with respect thereto at the Company Options qualified as incentive stock options immediately prior to the Effective Time.
Appears in 1 contract
Employee Stock Options. Except as (a) Prior to the Closing Date, the committee administering the Company Stock Option Plan shall take all action necessary to effectuate the acceleration of all options outstanding under the Company Stock Option Plan so that such options may be exercised in full; provided that such options shall only be exercisable prior to Election Deadline and, if any of such options are not exercised prior to the Election Deadline, such unexercised options and all rights of the optionees thereunder shall terminate at the Election Deadline.
(b) Prior to the Closing Date, the Company and each of Messrs. Woesxxxx xxx Dienxxxxxx xxxll either (i) terminate the Additional Stock Options or (ii) amend the Additional Stock Options so that such options may be exercised in full; provided that, in the latter case, such options shall only be exercisable prior to Election Deadline and, if any of such options are not exercised prior to the Election Deadline, such unexercised options and all rights of the optionees thereunder shall terminate at the Election Deadline.
(c) Notwithstanding anything in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on contrary, the date hereof, from Company may amend the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares Plan or the underlying stock option agreements and the Additional Stock Options to provide that the exercise price to be subject to paid by the new option shall be equal to the product optionee upon exercise of the number of Shares subject to the original an option and the Exchange Ratio, PROVIDED that any fractional Parent Shares Tax withholding obligation resulting from such multiplication exercise may be paid in Company Common Stock, including Company Common Stock to be issued upon such exercise, provided that, except as set forth in the next sentence, the value of any shares of Company Common Stock so surrendered to pay the exercise price or withholding obligation shall be rounded down no less than the Per Share Adjusted Purchase Price. Notwithstanding the foregoing, the parties hereto consent to the nearest share andnet exercise by Randx X. Xxxxxx xx options to purchase 2,900 shares of class B common stock of the Company at a deemed fair market value of $432 on December 29, except 2000, and the withholding with respect to any options which are intended to qualify as "incentive stock options" such exercise (as defined in section 422 or purchase by the Company) of 858 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that shares otherwise issuable upon such exercise price shall be rounded up to in the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) amount of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time$370,680.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Newfield Exploration Co /De/)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each stock option that is then outstanding under the Company's 2000 Equity Incentive Plan, whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee Stock Options which is outstanding date of this Agreement) of the Company's 2000 Equity Incentive Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of agreement by which such Company governing Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Employee Stock Options (the "Company Stock Option Plans")):Effective Time:
(1i) The each Company Option assumed by Parent may be exercised solely for shares of Parent Common Stock;
(ii) the number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on multiplied by the average closing price on the New York Stock Exchange Ratio, rounded down to the nearest whole number of shares of Parent Common Stock;
(iii) the per share exercise price for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time, by the Stock Exchange Ratio, and rounding the resulting exercise price up to the nearest whole cent; and
(2iv) The all restrictions on the exercise price per Parent Share under of each such assumed Company Option shall continue in full force and effect, and the new option term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (further adjustment as determined under (1) immediately above)appropriate to reflect any stock split, PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original optionreverse stock split, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (stock dividend, recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Parent after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time.
(b) The Company and Parent shall take all action that may be necessary (under the Company's 2000 Equity Incentive Plan and otherwise) to effectuate the provisions of this Section 1.8.
(c) Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and (ii) the exercise price per share of Parent Common Stock issuable upon exercise of such assumed Company Option. To the extent Parent files a Form S-3 pursuant to the requirements of Section 5.3, Parent shall also register the exercise of the Company Options assumed by Parent pursuant to this Section 1.8 on such Form S-3.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each then outstanding Company Option and each other outstanding option to purchase Common Stock of the Employee Company issued in accordance with the terms of this Agreement, whether vested or unvested, shall, as part of the Merger, be assumed by Parent in accordance with the terms (as in effect as of the Closing Date) of such Company Stock Option Plan under which such Company Option was issued and the stock option agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options which is outstanding shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and unexercised at after the Effective Time, (i) each Company Option assumed by Parent may be exercised solely for shares of Parent Common Stock, (ii) the number of shares of Parent Common Stock subject to each such assumed Company Option shall be equal to the sum of (A) the number of shares of Company Common Stock that were subject to such Company Option immediately prior to the Effective Time multiplied by the Applicable Closing Fraction, rounded down to the nearest whole number of shares of Parent Common Stock, and (B) in the event any Contingent Payments are made, the number of shares of Company Common Stock that were subject to such Company Option immediately prior to the Effective Time multiplied by the Applicable Contingent Fraction, rounded down to the nearest whole number of shares of Parent Common Stock, (iii) the per share exercise price for the Parent Common Stock issuable upon exercise of each such assumed Company Option shall be converted automatically determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately prior to the Effective Time, by the Applicable Fraction, and rounding the resulting exercise price up to the nearest whole cent, and all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided however, that (x) each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The Company and Parent shall take all action that may be necessary (under the Company Stock Option Plan and otherwise) to effectuate the provisions of this Section 1.7, and (y) the conversion of each Company Option into an option to purchase Parent Shares in Common Stock pursuant to this Section 1.7 shall comply with the requirements of Treasury Regulation Section 1.409A-1(b)(5)(v)(D); provided that the conversion of each Company Option that is intended to be an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the incentive stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section under Section 422 of the Code ("ISOs")), into an option to purchase Parent Common Stock shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file comply with the SEC a registration statement on Form S-8 (or other appropriate form) or a postrequirements of Treasury Regulation Section 1.424-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time1(a).
Appears in 1 contract
Samples: Merger Agreement (Clarient, Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant Prior to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, the Seller shall take all such action as is necessary to terminate The UST Corp. Stock Compensation Plan, The 1993 Main Street Community Bancorp, Inc. Stock Option Plan, The 1995 Afxxxxxxxx Xxxxxxxty Bancorp. Inc. Stock Option Plan, The 1986 Lexington Savings Bank Stock Option and Stock Appreciation Rights Plan, The 1994 Lexington Savings Bank Stock Option Plan, The Somerset Savings Bank 1986 Incentive Stock Option Plan, The Somerset Savings Bank 1995 Equity Incentive Plan, The 1995 UST Director's Stock Option Plan and The 1996 UST Director's Stock Option Plan, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option as amended to purchase Parent Shares in an amount and at an exercise price determined as provided below date (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (collectively, the "Company Seller Stock Option Plans")):
(1) The number , and shall provide written notice to each holder of Parent Shares a then outstanding stock option to be subject purchase shares of Seller Common Stock pursuant to the new Seller Stock Option Plans (whether or not such stock option is then vested or exercisable), that such stock option shall be, as at the date of such notice, exercisable in full and that such stock option shall terminate at the Effective Time and that, if such stock option is not exercised or otherwise terminated before the Effective Time, such holder shall be entitled to receive in cancellation of such option a cash payment from the Seller at the Closing in an amount equal to the product excess of the Merger Consideration over the per share exercise price of such stock option, multiplied by the number of Shares shares of Seller Common Stock covered by such stock option, subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down required withholding of taxes. Subject to the nearest share andforegoing, except with respect to any the Seller Stock Option Plans and all options which are intended to qualify as "incentive stock options" (as defined in section 422 of issued thereunder shall terminate at the Code ("ISOs")), Parent shall pay an amount in cash Effective Time. The Seller hereby represents and warrants to the holder Buyer that the maximum number of such Employee shares of Seller Common Stock subject to issuance pursuant to the exercise of stock options issued and outstanding under the Seller Stock Option equal to the fair market value immediately Plans is not and shall not be at or prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timemore than 2,386,818.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each of the Employee all rights with respect to Seller Common Stock pursuant to Seller Stock Options which is that are outstanding and unexercised at the Effective Time Time, whether or not then exercisable, shall be converted automatically into an option and become rights with respect to purchase Parent Shares Mercantile Common Stock, and Mercantile shall assume all Seller Stock Options in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the stock option plans of Company governing Seller Stock Plan under which it was issued and the Employee Stock Options (the "Company Seller Stock Option Plans")):
Agreement by which it is evidenced. From and after the Effective Time, (1i) The each Seller Stock Option assumed by Mercantile shall be exercised solely for shares of Mercantile Common Stock, (ii) the number of Parent Shares to be shares of Mercantile Common Stock subject to the new option each Seller Stock Option shall be equal to the product of the number of Shares shares of Seller Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Seller Stock Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio and (iii) the per share exercise price under each Seller Stock Option shall be adjusted by dividing the per share exercise price under such Seller Stock Option by the Exchange Ratio and rounding down to the nearest cent; provided, however, that the terms of such fractional Parent Shares calculated based on the average closing price on the New York each Seller Stock Exchange for the last five trading days immediately preceding the day prior Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, stock dividend, recapitalization or other similar transaction subsequent to the Effective Time; and
(2) The exercise price per Parent Share under . It is intended that the new option foregoing assumption shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected undertaken in a manner that is consistent with section 424(a) of will not constitute a "modification" as defined in the Code. , as to any Seller Stock Option that is an "incentive stock option" as defined under the Code.
(b) The duration and other terms shares of Mercantile Common Stock covered by the new option stock options to be issued pursuant to Section 5.15(a) shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file covered by an effective registration statement filed on Form S-8 with the SEC a and shall be duly authorized, validly issued and in compliance with all applicable federal and state securities laws, fully paid and nonassessable and not subject to or in violation of any preemptive rights. Mercantile shall use its best efforts to maintain the effectiveness of such registration statement on Form S-8 (or other appropriate formand maintain current status of the prospectus contained therein) or a postfor as long as such options remain out-effective amendment to the Registration Statement as promptly as practicable standing. Mercantile shall at and after the Effective Time have reserved sufficient shares of Mercantile Common Stock for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and issuance with respect to such options. Mercantile shall have such registration statement or post-effective amendment become effective and comply, also take any action required to the extent applicable, with be taken under any applicable state securities or blue sky or securities laws in connection with respect thereto at the Effective Timeissuance of such shares.
Appears in 1 contract
Samples: Merger Agreement (Homecorp Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each of the all rights with respect to Seller Common Stock pursuant to Seller Employee Stock Options which is that are outstanding and unexercised at the Effective Time Time, whether or not then exercisable, shall be converted automatically into an option and become rights with respect to purchase Parent Shares Unified Common Stock, and Unified shall assume all Seller Employee Stock Options in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the stock option plans of Company governing Seller Stock Plan under which it was issued and the Seller Employee Stock Options Option Agreement by which it is evidenced. From and after the Effective Time, (the "Company i) each Seller Employee Stock Option Plans")):
assumed by Unified shall be exercised solely for shares of Unified Common Stock, (1ii) The the number of Parent Shares to be shares of Unified Common Stock subject to the new option each Seller Employee Stock Option shall be equal to the product of the number of Shares shares of Seller Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Seller Employee Stock Option equal to the fair market value immediately prior to the Effective Time of multiplied by the Exchange Ratio and (iii) the per share exercise price under each Seller Employee Stock Option shall be adjusted by dividing the per share exercise price under such fractional Parent Shares calculated based on Seller Employee Stock Option by the average closing price on Exchange Ratio and rounding down to the New York Stock Exchange nearest cent; provided, however, except for that certain two-for-one stock split with respect to the last five trading days immediately preceding the day Unified Common Stock, which is to be effected prior to the Effective Time; and
(2) The exercise price per Parent Share under , that the new option terms of each Seller Employee Stock Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, stock dividend, recapitalization or other similar transaction subsequent to the Effective Time. It is intended that the foregoing assumption shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected undertaken in a manner that is consistent with section 424(a) of will not constitute a "modification" as defined in the Code. , as to any Seller Employee Stock Option that is an "incentive stock option" as defined under the Code.
(b) The duration and other terms shares of Unified Common Stock covered by the new option stock options to be issued pursuant to Section 5.14(a) shall be the same as that duly authorized, validly issued and in compliance with all applicable federal and state securities laws, fully paid and nonassessable and not subject to or in violation of the original option, except that all references to Company any preemptive rights. Unified shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable at and after the Effective Time have reserved sufficient shares of Unified Common Stock for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and issuance with respect to such options. Unified shall have such registration statement or post-effective amendment become effective and comply, also take any action required to the extent applicable, with be taken under any applicable state securities or blue sky or securities laws in connection with respect thereto at the Effective Timeissuance of such shares.
Appears in 1 contract
Employee Stock Options. Except Effective as provided in of the Effective Time, the Company shall take all necessary action, including obtaining the consent of the individual option holders, if necessary, to (i) terminate the Company's 1995 Employee Stock Purchase Plan, 1994 Stock Option Plan and 1987 Stock Option Plan, each as amended through the date of this Agreement or pursuant to (collectively, the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof"Company Stock Plans"), from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At (ii) cancel, at the Effective Time, each outstanding option to purchase shares of Company Common Stock, whether granted under the Employee Company Stock Options which Plans or otherwise (each, a "Company Stock Option") that is outstanding, vested and unexercised as of such date. Notwithstanding such termination and cancellation, each holder of a vested Company Stock Option that is outstanding and unexercised at the Effective Time shall be converted automatically into an option entitled to purchase Parent Shares receive from the Surviving Corporation immediately after the Effective Time, in an amount and at an exercise price determined as provided below (and otherwise subject to exchange for the terms cancellation of the stock option plans of Company governing the Employee Stock Options (the "such Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares subject to the original option and the Exchange RatioOption, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior excess, if any, of (x) the Per Share Amount over (y) the per share exercise price of such vested Company Stock Option, multiplied by the number of shares of Company Common Stock subject to such vested Company Stock Option as of the Effective Time. Any such payment shall be subject to all applicable federal, state and local tax withholding requirements or proof of eligibility or exemption therefrom. Company Stock Options that are not vested as of the Effective Time of shall be cashed out at the price described in the preceding sentence, immediately after the date or dates on which such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to options become vested after the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal , pursuant to the aggregate exercise price vesting schedule of the original otherwise applicable Company Stock Plan or option divided by agreement (or in the total number case of full Parent Shares subject performance vesting, pursuant to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended separate agreements to be effected in a manner entered into between the Company and the affected optionee); provided, however, that is consistent with section 424(a) if the employment of the Code. The duration and other terms of the new former option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable holder is terminated after the Effective Time and prior to such vesting date by the Company without Cause or by the individual for purposes of registering Good Reason, the cashout shall be made immediately after such termination date at the price described above as though the individual were 100% vested under the relevant plan's vesting schedule. The Company shall take all Parent Shares issuable after necessary action to approve the Effective Time upon exercise disposition of the Employee Company Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, Options in connection with the transactions contemplated by this Agreement to the extent applicable, with state securities or blue sky laws with respect thereto at necessary to exempt such dispositions and acquisitions under Rule 16b-3 of the Effective TimeExchange Act.
Appears in 1 contract
Samples: Merger Agreement (Mohawk Corp)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under the Company's 1985 Nonqualified Stock Option Plan for Key Employees (the "1985 Stock Plan"), whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee date of this Agreement) of the Company's 1985 Stock Options which is outstanding Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Class A Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock as set forth in the Employee Stock Options following clause "(b)" , (b) the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Class A Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Class A Fraction, rounded up to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Class A Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time, by the Applicable Class A Fraction, and rounding the resulting exercise price down to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; and
provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The Company and Parent shall take all action that may be necessary (2under the Company's 1985 Stock Plan and otherwise) The to effectuate the provisions of this Section 1.6. Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and (ii) the exercise price per share of Parent Share under the new option shall be equal to the aggregate Common Stock issuable upon exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to assumed Company shall be deemed to be references to ParentOption. Parent shall file with the SEC SEC, within 30 days after the Closing Date, a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment registering shares to be received upon the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, Company Options assumed by Parent pursuant to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.6.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant (a) Subject to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable of the Company's 1998 Equity Incentive Plan, 1999 Non-Employee Directors' Stock Option Plan and 2000 Stock Option Plan (together, the "COMPANY OPTION PLANS") and the stock option agreements executed pursuant thereto, the Company Option Plans and each option to purchase Company Common Stock granted thereunder that is outstanding at the Employee Stock Options. Effective Time shall be assumed by Parent and continued in accordance with their respective terms and each such option shall become a right to purchase a number of shares of Parent Common Stock, as more fully described below.
(b) At the Effective Time, each outstanding option to purchase shares of Company Common Stock (a "COMPANY STOCK OPTION") under the Employee Stock Options which is outstanding and unexercised at the Effective Time Company Option Plans, whether vested or unvested, shall be converted automatically into deemed to constitute an option to purchase Parent Shares in an amount acquire, on the same terms and at an exercise price determined conditions as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "were applicable under such Company Stock Option Plans")):
(1) The Option, a number of shares of Parent Shares to be subject to the new option shall be Common Stock equal to the product of the number of Shares subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be (rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" whole share) of (as defined in section 422 i) the number of shares of Company Common Stock issuable upon exercise of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value option immediately prior to the Effective Time of such fractional Parent Shares calculated based on and (ii) the average closing price on Conversion Number; and the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The option exercise price per share of Parent Share under the new Common Stock at which such option is exercisable shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option amount (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent. The adjustment provided herein with respect ) obtained by dividing (iii) the option exercise price per share of Company Common Stock at which such option is exercisable immediately prior to the Effective Time by (iv) the Conversion Number; PROVIDED, HOWEVER, that, in the case of any ISOs Company Stock Option to which Section 421 of the Code applies by reason of its qualification under any of Sections 422-424 of the Code ("QUALIFIED STOCK OPTIONS"), the option exercise price, the number of shares purchasable pursuant to such option and the terms and conditions of exercise of such option shall be and is intended determined in order to be effected in a manner that is consistent comply with section 424(aSection 425(a) of the Code.
(c) As soon as practicable after the Effective Time, Parent shall deliver to the participants in the Company Option Plans appropriate notices setting forth such participants' rights pursuant thereto and that the grants pursuant to the Company Option Plans shall continue in effect on the same terms and conditions (subject to the adjustments required by this Section after giving effect to the Merger), and providing for the assumption by Parent of such participant options. The duration and other Parent shall comply with the terms of the new option Company Option Plans and ensure, to the extent required by, and subject to the provisions of, the Company Option Plans, that the Company Stock Options which qualified as qualified stock options prior to the Effective Time continue to qualify as qualified stock options after the Effective Time.
(d) Parent shall be take all corporate action necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery under the same Company Option Plans as that of adjusted in accordance with this Section. As soon as practicable after the original optionEffective Time, except that all references to Company shall be deemed to be references to Parent. and in no event later than thirty (30) days following the Effective Time, Parent shall file with the SEC a registration statement on Form S-8 promulgated by the SEC under the Securities Act (or any successor or other appropriate form) or a post-effective amendment with respect to the Registration Statement as promptly as practicable after Parent Common Stock subject to the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Company Stock Options, Options and shall have use its reasonable best efforts to maintain the effectiveness of such registration statement or post-effective amendment become effective registration statements (and comply, maintain the current status of the prospectus or prospectuses contained therein) for so long as such options remain outstanding. With respect to those individuals who subsequent to the extent Merger will be subject to the reporting requirements under Section 16(a) of the Exchange Act, where applicable, Parent shall administer the Company Option Plans in a manner that complies with state securities or blue sky laws with respect thereto at Rule 16b-3 promulgated under the Effective TimeExchange Act.
Appears in 1 contract
Samples: Merger Agreement (Hotjobs Com LTD)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each all outstanding unexercised Company Options, whether vested or unvested, shall be assumed by Parent in accordance with the terms of the Employee Stock Options which is outstanding Company Option Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the stock option plans of agreements by which such Company governing Options are evidenced. All rights with respect to Company Common Stock under Company Options assumed by Parent shall thereupon be converted into rights with respect to Parent Common Stock; and, from and after the Employee Stock Options (the "Company Stock Option Plans")):Effective Time:
(1i) The number each assumed Company Option may be exercised solely for shares of Parent Shares to be subject to the new option shall be equal to the product of Common Stock;
(ii) the number of Shares shares of Parent Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from each such multiplication assumed Company Option shall be rounded down determined by multiplying the number of shares of Company Common Stock that were subject to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time by the Option Exchange Ratio (as defined below), and rounding to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock;
(iii) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each assumed Company Option shall be the amount determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; , by the Option Exchange Ratio, and rounding the resulting exercise price to the nearest whole cent, and
(2iv) The all restrictions on the exercise price per Parent Share under of each such Company Option shall continue in full force and effect, and the new option term, exercisability, vesting schedule and other provisions of each assumed Company Option shall otherwise remain unchanged; provided, however, that each assumed Company Option shall, in accordance with its terms, be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (further adjustment as determined under (1) immediately above)appropriate to reflect any stock split, PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original optionreverse stock split, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (stock dividend, recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Parent after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each of the Employee all rights with respect to Target Common Stock pursuant to Target Stock Options which is that are outstanding and unexercised at the Effective Time Time, whether or not then exercisable, shall be converted automatically into an option and become rights with respect to purchase Parent Shares Buyer Common Stock, and Buyer shall assume all Target Stock Options in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the stock option plans of Company governing Target Stock Plan under which it was issued and the Employee Stock Options (the "Company Target Stock Option Plans")):
Agreement by which it is evidenced. From and after the Effective Time, (1i) The each Target Stock Option assumed by Buyer shall be exercised solely for shares of Buyer Common Stock, (ii) the number of Parent Shares to be shares of Buyer Common Stock subject to the new option each Target Stock Option shall be equal to the product of the number of Shares shares of Target Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Target Stock Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio and (iii) the per share exercise price under each Target Stock Option shall be adjusted by dividing the per share exercise price under such Target Stock Option by the Exchange Ratio and rounding down to the nearest cent; provided, however, that the terms of such fractional Parent Shares calculated based on the average closing price on the New York each Target Stock Exchange for the last five trading days immediately preceding the day prior Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, stock dividend, recapitalization or other similar transaction subsequent to the Effective Time; and
(2) The exercise price per Parent Share under . It is intended that the new option foregoing assumption shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected undertaken in a manner that is consistent with section 424(a) of will not constitute a "modification" as defined in the Code. , as to any Target Stock Option that is an "incentive stock option" as defined under the Code.
(b) The duration and other terms shares of Buyer Common Stock covered by the new option Target Stock Options shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file covered by an effective registration statement filed on Form S-8 with the SEC a and shall be duly authorized, validly issued and in compliance with all applicable federal and state securities laws, fully paid and nonassessable and not subject to or in violation of any preemptive rights. Buyer shall maintain the effectiveness of such registration statement on Form S-8 (or other appropriate formand maintain current status of the prospectus contained therein) or a post-effective amendment to the Registration Statement for as promptly long as practicable such options remain outstanding. Buyer shall at and after the Effective Time have reserved sufficient shares of Buyer Common Stock for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and issuance with respect to such options. Buyer shall have such registration statement or post-effective amendment become effective and comply, also take any action required to the extent applicable, with be taken under any applicable state securities or blue sky or securities laws in connection with respect thereto at the Effective Timeissuance of such shares.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under the Company's 1996 Nonqualified Stock Option Plan, whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee date of this Agreement) of the Company's 1996 Nonqualified Stock Option Plan and the stock option agreement by which such Company Option is evidenced. The term "Company Option" shall not include any options described on Part 1.6 of the Disclosure Schedule. All rights with respect to Company Common Stock under outstanding Company Options which is outstanding shall thereupon be converted into rights with respect to Parent Common Stock (subject to applicable withholding) in accordance with subsections (a), (b), (c), (d) and unexercised (e) of this Section 1.6. From and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Parent Common Stock; (b) the number of shares of Parent Common Stock subject to each such assumed Company Option shall be equal to the number of shares of Company Common Stock that were subject to such Company Option immediately prior to the Effective Time multiplied by the Applicable Number, rounded down to the nearest whole number of shares of Parent Common Stock; (c) the per share exercise price for the Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately prior to the Effective Time, by the Applicable Number, and rounding the resulting exercise price up to the nearest whole cent; (d) except as set forth in subsection (e) below or as may result from the consummation of the transactions contemplated by this Agreement, all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, and other provisions of such Company Option shall otherwise remain unchanged; and (e) the Company's 1996 Nonqualified Stock Option Plan shall be amended, the applicable provisions waived or such other necessary action of the Company taken, to (i) clarify the rights of Parent, including under Section 5.3 of such Plan, to assume the Company's Options in accordance with this Agreement and upon the occurrence of certain corporate transactions; (ii) eliminate the Company's repurchase rights with respect to the Company's Options set forth in Section 6.9 of such Plan and the Company Common Stock issuable upon exercise of such Company Options under Article VII of such Plan; (iii) provide for a 90-day period after termination of employment, engagement and directorship, as the case may be, to exercise the Company Options; (iv) eliminate the provisions of Section 9.2 of such Plan (to the extent the ongoing effect of such provision would have an adverse effect on the holders of Company Options); and (v) make other conforming amendments as agreed upon by the Parent and the Company; provided, however, that, except for the Company Options listed on Part 1.6 of the Disclosure Schedule, all such Company Options shall immediately vest and become exercisable at the Effective Time shall be converted automatically into an option to purchase Parent Shares Time; and provided, further, however, that each such assumed Company Option shall, in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares to accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the new option Effective Time. In addition, as of the Effective Time, each holder of an assumed Company Option shall be entitled to receive a cash payment equal to the product of the Applicable Cash Payment and the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock assumed Company Option equal to the fair market value immediately prior to the Effective Time (the "Company Option Cash Payment"), subject to applicable withholding. The Company and Parent shall take all action that may be necessary (under the Company's 1996 Nonqualified Stock Option Plan and otherwise) to effectuate the provisions of this Section 1.6. Following the Closing, Parent will send or deliver to each holder of an assumed Company Option (A) a written notice setting forth (i) the number of shares of Parent Common Stock subject to such fractional Parent Shares calculated based on assumed Company Option, and (ii) the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per share of Parent Share under Common Stock issuable upon exercise of such assumed Company Option, and (B) the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to applicable Company shall be deemed to be references to ParentOption Cash Payment. Parent shall file with the SEC SEC, not later than the earlier of (y) forty-five (45) days following the Closing Date, or (z) five (5) days following the filing of any current report on Form 8-K required to be filed by Parent after the Closing with respect to the transactions contemplated herein (which report shall include all financial statements required to be included in such report), a registration statement on Form S-8 (or other any successor or appropriate form) or a post-effective amendment to registering the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, Company Options assumed by Parent pursuant to this Section 1.6 and shall have use its reasonable best efforts to maintain the effectiveness of such registration statement statement, including the prospectus or post-effective amendment become effective and complyprospectuses contained therein, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timefor so long as such Company Options remain outstanding.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under the Company's 1996 Stock Option Plan, whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee date of this Agreement) of the Company's 1996 Stock Options which is outstanding Option Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to such Company Option immediately prior to the original option and Effective Time multiplied by the Exchange RatioApplicable Fraction, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest whole number of shares of Parent Common Stock, (c) the per share andexercise price for the Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, except as in effect immediately prior to the Effective Time, by the Applicable Fraction, and rounding the resulting exercise price to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions (including methods of exercise) of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with respect its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. In the case of any options which are intended to qualify as "incentive stock options" (as defined in section Section 422 of the Code ("ISOs")Code), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total price, number of full Parent Shares subject to shares purchasable thereunder and the new option (as determined under (1) immediately above), PROVIDED that such terms and conditions of exercise price shall be rounded up to the nearest cent. The adjustment provided herein comply with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section Section 424(a) of the Code. The duration Company and other terms Parent shall take all action that may be necessary (under the Company's 1996 Stock Option Plan and otherwise) to effectuate the provisions of this Section 1.6. Following the new option shall be Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the same as that number of shares of Parent Common Stock subject to such assumed Company Option, and (ii) the original option, except that all references to exercise price per share of Parent Common Stock issuable upon exercise of such assumed Company shall be deemed to be references to ParentOption. Parent shall file with the SEC SEC, within sixty (60) days after the Closing Date, a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to registering the Registration Statement as promptly as practicable after the Effective Time for purposes shares of registering all Parent Shares Common Stock issuable after the Effective Time upon exercise of the Employee Company Options assumed by Parent pursuant to this Section 1.6 unless such shares of Parent Common Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timeare already registered.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each outstanding unexercised Company Option, whether vested or unvested, shall be assumed by Parent in accordance with the terms of the Employee Stock Options which is outstanding Company Option Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the stock option plans of agreement by which such Company governing Option is evidenced. All rights with respect to Company Common Stock under assumed Company Options shall be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Employee Stock Options (the "Company Stock Option Plans")):Effective Time:
(1i) The number each assumed Company Option may be exercised solely for shares of Parent Shares to be subject to the new option shall be equal to the product of Common Stock;
(ii) the number of Shares shares of Parent Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication each assumed Company Option shall be rounded down determined by multiplying the number of shares of Company Common Stock that were subject to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time by the Option Stock Fraction (as defined below), and rounding down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock;
(iii) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each assumed Company Option shall be the amount determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time, by the Option Stock Fraction; and
(2iv) The all restrictions on the exercise of each assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected or declared by Parent after the Effective Time. For purposes of this Agreement, (I) each Company Option that is assumed by Parent in accordance with this Section 1.6(a) shall be referred to as an “Assumed Option,” and (II) the “Option Stock Fraction” shall be the sum of (x) the fraction having a numerator equal to the amount determined by multiplying 80% by the Residual Per Share Amount, and having a denominator equal to the Average Parent Stock Price, and (y) the fraction having a numerator equal to the amount determined by multiplying 20% by the Residual Per Share Amount, and having a denominator equal to the Designated Parent Stock Price.
(b) After the Effective Time, Parent will send to each holder of an Assumed Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such Assumed Option, and (ii) the exercise price per share payable to Parent Share under upon the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to ParentAssumed Option. Parent shall file with the SEC SEC, within 30 days after the Closing Date, a registration statement on Form S-8 registering all of the Parent Common Stock underlying the Assumed Options.
(c) The Company shall take all actions that may be necessary or other that Parent considers appropriate form(under the Company Option Plan and otherwise) or a post-effective amendment to effectuate the Registration Statement as promptly as practicable provisions of this Section 1.6 and to ensure that, from and after the Effective Time for purposes Time, holders of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall Company Options have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws no rights with respect thereto at the Effective Timeto such Company Options other than those specifically provided in this Section 1.6.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions (a) As of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time (i) each outstanding Company Employee Stock Option, and any other Company Option (together, the "Adjusted Options") shall be converted automatically into exchanged for an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of ADSs derived by multiplying the number of Shares subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Company Employee Stock Option equal to the fair market value or other Company Option immediately prior to the Effective Time by the Exchange Ratio and dividing the result by the number of such fractional Parent Ordinary Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior represented by each Parent ADS (rounded to the Effective Time; and
(2) The nearest whole number of Parent ADSs), at an exercise price per Parent Share under the new option shall be ADS equal to (X) the aggregate exercise price of the original for each such Share subject to such option (Y) divided by the total Exchange Ratio (Z) with the result multiplied by the number of full Parent Shares subject to the new option represented by each Parent ADS (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up down to the nearest whole cent. The adjustment provided herein with respect to any ISOs shall be ), and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references in each such option to the Company shall be deemed to be references refer to Parent. , where appropriate, and (ii) Parent shall assume the obligations of the Company under the Company Stock Plans. The other terms of each Adjusted Option, and the plans under which they were issued, shall continue to apply in accordance with their terms, subject to SECTION 5.7(d)."
(b) As of the Effective Time, each outstanding award (including restricted stock, deferred stock, phantom stock, stock equivalents and stock units) ("COMPANY AWARD") under any Company Stock Plan shall be exchanged for a similar instrument of Parent, in each case with such adjustments (and no other adjustments) to the terms of such Company Awards as are necessary to preserve the value inherent in such Company Awards with no detrimental effects, taken as a whole, on the holder thereof, and the Parent shall assume the obligations of the Company under the Company Awards. The other terms of each Company Award, and the plans or agreements under which they are issued, shall continue to apply in accordance with their terms subject to SECTION 5.7(d).
(c) The Company and Parent agree that each of the Company Stock Plans and Parent Stock Plans shall be amended, to the extent necessary and appropriate to reflect the transactions contemplated by this Agreement, including, but not limited to the exchange of Shares held or to be awarded or paid pursuant to such benefit plans, programs or arrangements into Parent ADSs on a basis consistent with the transactions contemplated by this Agreement. The actions to be taken by the Company and Parent pursuant to this SECTION 5.7(c) shall include the submission by the Company or Parent of the amendments to the Parent Stock Plans or the Company Stock Plans to their respective shareholders, if such submission is determined to be necessary by counsel to the Company or Parent after consultation with one another; provided, however, that such approval shall not be a condition to the consummation of the Merger.
(d) Notwithstanding anything in SECTION 5.7(a) or SECTION 5.7(b) above to the contrary, if the exchange or conversion of any Adjusted Option or Company Award shall be prohibited or restricted under any applicable law, rule or regulation applicable to Parent, Parent shall, in lieu thereof, provide the holder at the Effective Time with substantially the same economic benefit calculated as of the Effective Time.
(e) Parent shall (i) reserve for issuance the number of Parent Ordinary Shares underlying Parent ADSs that will become subject to the benefit plans, programs and arrangements referred to in this Section and (ii) issue or cause to be issued the appropriate number of Parent Ordinary Shares to be represented by Parent ADSs pursuant to applicable plans, programs and arrangements, upon the exercise or maturation of rights existing thereunder on the Effective Time or thereafter granted or awarded. No later than the Effective Time, the Parent shall prepare and file with the SEC a registration statement on Form S-8 (or other appropriate form) registering a number of Parent Ordinary Shares underlying Parent ADSs necessary to fulfill Parent's obligations under this Section. For such period as the Parent shall be a reporting company under the Exchange Act, Parent shall use its reasonable best efforts to keep such registration statement effective (and the current status of the prospectus required thereby to be maintained) for as long as Adjusted Options or a post-effective amendment to the Registration Statement as promptly Company Awards remain outstanding.
(f) As soon as practicable after the Effective Time for purposes Time, Parent shall deliver to the holders of registering all Company Options and Company Awards appropriate notices setting forth such holders' rights pursuant to the Company Stock Plans and the agreements evidencing the grants of such Company Options and Company Awards and that such Company Options and Company Awards and the related agreements shall be assumed by Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective continue in effect on the same terms and comply, conditions (subject to the extent applicable, with state securities or blue sky laws with respect thereto at adjustments required by this SECTION 5.7 after giving effect to the Effective TimeMerger).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Triple S Plastics Inc)
Employee Stock Options. 3.2.1. The Company will take all necessary actions to ensure that, at the Effective Time, each option to purchase Shares of Company Common Stock (each an “Option” and collectively, the “Options”) issued under the Option Plan that has vested or, in accordance with the terms of Contractual Obligations presently in effect with respect to such Options, will vest in connection with the Transactions (each a “Vested Option” and collectively, the “Vested Options”) shall terminate and be canceled and each holder of a Vested Option shall be entitled to receive, in consideration therefor, a cash payment equal to the product of (a) the excess, if any, of (i) the Company Common Stock Price Per Share over (ii) the exercise price of such Vested Option multiplied by (b) the number of Shares of Company Common Stock covered by such Vested Option (the “Option Consideration”), less any applicable withholding Taxes, payable upon surrender of the certificate formerly representing such Vested Option. As of the Effective Time, all Vested Options shall be deemed exercised and be of no further force and effect and each holder of a Vested Option shall cease to have any rights with respect thereto, except the right to receive the Option Consideration with respect to such Vested Options.
3.2.2. All Options outstanding at the Effective Time, other than Vested Options, shall be canceled as of the Effective Time and the Option Plan shall be terminated. As of the Effective Time, each canceled Option that has an exercise price that is equal to or less than the Company Common Stock Price Per Share shall be replaced with an option (a “Replacement Option”) to purchase Parent common shares (“Parent Shares”) that will be granted pursuant to the terms of the Parent’s equity compensation plans. Each Replacement Option shall be exercisable for, and represent the right to acquire, that whole number of Parent Shares (rounded down to the nearest whole number of Parent Shares) equal to the number of Shares of Company Common Stock subject to such Option multiplied by a fraction the numerator of which shall be equal to the Company Common Stock Price Per Share and the denominator of which shall be equal to the closing price of Parent Shares on the Business Day prior to the Effective Time (such fraction being hereinafter referred to as the “Exchange Ratio”) and the exercise price per option on Parent Shares shall be the amount equal to the exercise price per share subject to such Option divided by the Exchange Ratio (rounded upward to the nearest full cent). Except as provided in this Agreement or pursuant to and the preceding sentence, the terms of any Replacement Option shall have substantially the same terms as the corresponding cancelled Option, including the existing vesting schedule and the provisions providing for the acceleration of any Plan or employee or director stock option agreement vesting. No Replacement Options shall be granted in respect of Options that have an exercise price that exceeds the Company Common Stock Price Per Share.
3.2.3. As soon as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At practicable after the Effective Time, Parent shall deliver to each holder of the Employee Stock Options which is outstanding and unexercised at the Effective Time a Replacement Option an appropriate notice setting forth such holder’s rights pursuant thereto. Parent shall be converted automatically into an option take all corporate action necessary to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The reserve for issuance a sufficient number of Parent Shares to be subject for delivery upon exercise of Replacement Options pursuant to the new option shall be equal to the product of the number of Shares subject to the original option and the Exchange Ratioterms set forth in this Section 3.2. As soon as practicable, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share andbut in no event later than thirty (30) days, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to after the Effective Time; and
(2) The exercise price per Parent Share under , the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price options shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a covered by an effective registration statement on Form S-8 (or other appropriate any successor form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timeanother appropriate form.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each stock option that is then outstanding under the Company's 2000 Equity Incentive Plan, whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee Stock Options which is outstanding date of this Agreement) of the Company's 2000 Equity Incentive Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of agreement by which such Company governing Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Employee Stock Options (the "Company Stock Option Plans")):Effective Time:
(1i) The each Company Option assumed by Parent may be exercised solely for shares of Parent Common Stock;
(ii) the number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock;
(iii) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time, by the Exchange Ratio, and rounding the resulting exercise price up to the nearest whole cent; and
(2iv) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time.
(b) The Company and Parent shall take all action that may be necessary (under the Company's 2000 Equity Incentive Plan and otherwise) to effectuate the provisions of this Section 1.6.
(c) Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and (ii) the exercise price per share of Parent Share under the new option shall be equal to the aggregate Common Stock issuable upon exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to assumed Company shall be deemed to be references to ParentOption. Parent shall file with the SEC SEC, within 90 days after the Closing Date, a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to registering the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, Company Options assumed by Parent pursuant to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.6.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Eloquent Inc)
Employee Stock Options. Except Effective as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each the Company shall take all necessary action, including obtaining the consent of the Employee individual option holders, if necessary, to (a) terminate the Company’s 1999 Stock Options which Option Plan, as amended through the date of this Agreement (the “Company Stock Option Plan”), (b) provide that each outstanding option to purchase shares of Company Common Stock granted under the Company Stock Option Plan (each, a “Company Stock Option”) that is outstanding and unexercised as of immediately prior to the Effective Time, whether or not vested or exercisable, shall become fully vested and exercisable as of the Effective Time, and (c) cancel as of the Effective Time each Company Stock Option that is outstanding and unexercised at the Effective Time. Each holder of a Company Stock Option that is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at that has an exercise price determined as provided below per share of Company Common Stock that is less than the portion of the Merger Consideration allocated to each share of Company Common Stock pursuant to Schedule I hereto shall be entitled (and otherwise subject to the terms provisions of this Section 3.05) to be paid by the stock option plans Surviving Corporation from time to time after the Effective Time as the Merger Consideration is payable, in exchange for the cancellation of Company governing the Employee Stock Options (the "such Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares subject to the original option and the Exchange RatioOption, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash (subject to any applicable withholding taxes) with respect to each share of Company Common Stock subject to the holder of such Employee Company Stock Option equal to the fair market value immediately prior excess, if any, of the portion of the Merger Consideration allocated to each share of Company Common Stock on Schedule I hereto over the Effective Time applicable per share exercise price of such fractional Parent Shares calculated based on Company Stock Option (the average closing price on aggregate amount so payable under this Section 3.05 being the New York Stock Exchange for the last five trading days immediately preceding the day prior “Option Payment”). Any such payment shall be subject to all applicable federal, state and local tax withholding requirements. Prior to the Effective Time; and
, Parent shall cause to be wired to an account designated by the Company an amount sufficient to enable the Company to make the payments required pursuant to this Section 3.05, taking into account that portion of the Price Adjustment Escrow Fund, the Dissenters Indemnification Escrow Fund, the General Indemnification Escrow Fund and the Stockholders’ Representative Expense Fund (2together, the “Escrow Funds”) The exercise price per Parent Share under the new option shall be equal attributable to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Radio One Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is then outstanding Company Option (as defined in Section 2.3(b)) and unexercised at the Effective Time shall be converted automatically into an each other outstanding option to purchase Parent Shares Common Stock of the Company issued in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of this Agreement, whether vested or unvested, shall be assumed by Parent in accordance with the terms (as in effect as of the date of this Agreement) of such Company Stock Option Plan under which such Company Option was issued and the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock and cash. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under , by the new option shall be Exchange Ratio, subtracting an amount equal to the aggregate Cash Consideration and rounding the resulting exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent. The adjustment provided herein with respect to any ISOs , and (d) all restrictions on the exercise of each such assumed Company Option shall be continue in full force and is intended to be effected in a manner that is consistent with section 424(a) of effect, and the Code. The duration term, exercisability, vesting schedule and other terms provisions of the new option such Company Option shall otherwise remain unchanged; PROVIDED HOWEVER, that each such assumed Company Option shall, in accordance with its terms, be the same subject to further adjustment as that of the original optionappropriate to reflect any stock split, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (reverse stock split, stock dividend, recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Parent after the Effective Time for purposes Time. The Company and Parent shall take all action that may be necessary (under all Company Stock Option Plans and otherwise) to effectuate the provisions of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.7.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under the Company's 1997 Stock Option Plan (the "COMPANY OPTION PLAN"), whether vested or unvested (a "COMPANY OPTION"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee Stock Options which is outstanding date of this Agreement) of the Company Option Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock (collectively, the average closing "OPTION SHARES"), (c) the per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The adjustment provided herein with respect Company and Parent shall take all action that may be necessary (under the Company Option Plan and otherwise) to any ISOs effectuate the provisions of this Section 1.6. It is the intention of the parties that the Company Options assumed by Parent qualify following the Effective Time as incentive stock options as defined in Section 422 of the Code to the extent such Company Options qualified as incentive stock options prior to the Effective Time, and this Section 1.6 shall be and is intended to be effected in a manner that is interpreted consistent with section 424(asuch intent. Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and (ii) the Codeexercise price per share of Parent Common Stock issuable upon exercise of such assumed Company Option. The duration and other terms of the new option shall be the same as that of the original optionNo later than February 1, except that all references to Company shall be deemed to be references to Parent. 2000, Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment for the shares of Parent Common Stock issuable with respect to the Registration Statement as promptly as practicable after the Effective Time assumed Company Options that are eligible for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, inclusion on Form S-8 and shall have maintain the effectiveness of such registration statement thereafter for so long as any such options or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timeother rights remain outstanding.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Accrue Software Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each of the Employee all rights with respect to Seller Common Stock pursuant to Seller Stock Options which is that are outstanding and unexercised at the Effective Time Time, whether or not then exercisable, shall be converted automatically into an option and become rights with respect to purchase Parent Shares Mercantile Common Stock, and Mercantile shall assume all Seller Stock Options in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the stock option plans of Company governing Seller Stock Plan under which it was issued and the Employee Stock Options (the "Company Seller Stock Option Plans")):
Agreement by which it is evidenced. From and after the Effective Time, (1i) The each Seller Stock Option assumed by Mercantile shall be exercised solely for shares of Mercantile Common Stock, (ii) the number of Parent Shares to be shares of Mercantile Common Stock subject to the new option each Seller Stock Option shall be equal to the product of the number of Shares shares of Seller Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Seller Stock Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio and (iii) the per share exercise price under each Seller Stock Option shall be adjusted by dividing the per share exercise price under such Seller Stock Option by the Exchange Ratio and rounding down to the nearest cent; provided, however, that the terms of such fractional Parent Shares calculated based on the average closing price on the New York each Seller Stock Exchange for the last five trading days immediately preceding the day prior Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, stock dividend, recapitalization or other similar transaction subsequent to the Effective Time; and
(2) The exercise price per Parent Share under . It is intended that the new option foregoing assumption shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected undertaken in a manner that is consistent with section 424(a) of will not constitute a "modification" as defined in the Code. , as to any Seller Stock Option that is an "incentive stock option" as defined under the Code.
(b) The duration and other terms shares of Mercantile Common Stock covered by the new option Seller Stock Options shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file covered by an effective registration statement filed on Form S-8 with the SEC a and shall be duly authorized, validly issued and in compliance with all applicable federal and state securities laws, fully paid and nonassessable and not subject to or in violation of any preemptive rights. Mercantile shall maintain the effectiveness of such registration statement on Form S-8 and any successor registration statement (and maintain current status of the prospectus contained therein or other appropriate formany successor prospectus) or a post-effective amendment to the Registration Statement for as promptly long as practicable such options remain outstanding. Mercantile shall at and after the Effective Time have reserved sufficient shares of Mercantile Common Stock for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and issuance with respect to such options. Mercantile shall have such registration statement or post-effective amendment become effective and comply, also take any action required to the extent applicable, with be taken under any applicable state securities or blue sky or securities laws in connection with respect thereto at the Effective Timeissuance of such shares.
Appears in 1 contract
Samples: Merger Agreement (Financial Services Corporation of the Midwest)
Employee Stock Options. Except as provided in this Agreement or pursuant Prior to the provisions Effective Time, the Company shall permit the exercise of any Plan vested Company Options (as defined below) by either the payment of the exercise price in cash or employee or director stock option agreement as through a cashless net exercise, and in effect on no event shall the date hereof, from Company permit the date hereof exercise of vested Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock OptionsOptions by a promissory note. At the Effective Time, each of stock option that is then outstanding under the Employee Company's 1998 Stock Options which is outstanding and unexercised at the Effective Time Option Plan, whether vested or unvested (a "COMPANY OPTION"), shall be converted automatically into an option to purchase shares of Parent Shares in an amount Common Stock. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into stock options with respect to Parent Common Stock. Accordingly, from and at an exercise price determined as provided below after the Effective Time, (and otherwise a) each Company Option may be exercised solely for shares of Parent Common Stock, (b) the number of shares of Parent Common Stock subject to the terms of the stock option plans of each such converted Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares subject shares of Parent Stock that the holder of such Company Option would have received pursuant to Section 1.6(a)(i) hereof if such Company Option had been fully vested and exercised immediately prior to the original option and Effective Time, rounded up or down, as the Exchange Ratiocase may be, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest whole number of shares of Parent Common Stock, (c) the per share andexercise price for the Parent Common Stock issuable upon exercise of each such converted Company Option shall be $1 per share, except with respect to any options which are intended to qualify as (d) each converted Company Option designated an "incentive stock optionsoption" (as defined in section Section 422 of the Code ("ISOsISO")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value ) immediately prior to the Effective Time shall remain an ISO, (e) each converted Company Option shall be subject to the terms and conditions of, and the restrictions on transfer set forth in, Parent's 1999 Stock Incentive Plan, and (f) all restrictions on the exercise of each such converted Company Option as set forth in each option holder's employment agreement or stock option agreement or pursuant to the Company's 1998 Stock Option Plan, shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such fractional Company Option shall otherwise remain unchanged; provided, however, that each such converted Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to after the Effective Time; and
. The Company and Parent shall take all action that may be necessary (2under the Company's 1998 Stock Option Plan and otherwise) The to effectuate the provisions of this Section 1.7. Each holder of a Company Option will receive credit for time served as an employee of the Company for the purposes of the vesting schedule of such Company Option converted by the Parent. Following the Closing, Parent will send to each holder of a converted Company Option a written notice setting forth (i) the number of shares of Parent Common Stock issuable upon exercise of such converted Company Option and (ii) the exercise price per share of Parent Share under Common Stock issuable upon the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timeconverted Company Option.
Appears in 1 contract
Samples: Merger Agreement (Home Director Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At On the Effective TimeDate, the Holding Company ---------------------- will assume the Bank's rights and obligations under the Bank's 1999 Stock Option Plan (the "1999 Plan") and under each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option stock options to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms common stock of the Bank previously granted under the 1999 Plan (each such stock option plans of Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value existing immediately prior to the Effective Time Date being called an "Existing Option" and each such stock option so assumed by the Holding Company being called an "Assumed Option"). By reason of such fractional Parent Shares calculated based assumption, each option agreement that evidenced the right to purchase Bank common stock shall thereafter represent, and each holder of an Existing Option shall have, the right to purchase one share of Holding Company common stock for each share of Bank common stock which such holder was entitled to purchase under his or her Existing Option and the right to exercise the Existing Option into shares of Bank common stock shall automatically terminate without the necessity of any action on the average closing part of the Bank, the Bancorp or any optionee. The price on per share of Holding Company common stock at which an Assumed Option may be exercised shall be the New York Stock Exchange for same price per share that was applicable to the last five trading days purchase of Bank common stock pursuant to the Existing Options, immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option Date. Each Assumed Option, subject to such modification as set forth hereinafter, shall be equal to the aggregate exercise price constitute a continuation of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above)Existing Option, PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be on the same as terms and conditions set forth in the 1999 Plan in each optionee's stock option agreement that of formerly evidenced the original optionright to purchase Bank common stock, except that all references to as follows: (i) shares of Holding Company Common Stock will be substituted for the shares of Bank common stock into which the existing options had been exercisable, (ii) the Holding Company shall be deemed substituted for the Bank as the issuer of shares under the 1999 Plan and (iii) the Holding Company shall be authorized under the 1999 Plan to be references issue options to Parentpurchase Holding Company shares not only to directors, officers and key employees of the Bank, but also to directors, officers and key employees of the Holding Company and any other subsidiaries it may establish in the future. Parent shall file with In addition, each option granted under the SEC a registration statement 1999 Plan on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes Date shall evidence the right to purchase shares of registering all Parent Shares issuable after the Effective Time upon exercise common stock of the Employee Stock OptionsHolding Company rather than shares of common stock of the Bank and the Plan shall be modified to so provide. In all other respects, and the 1999 Plan shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timebe unchanged.
Appears in 1 contract
Samples: Plan of Reorganization and Merger Agreement (Pacific Mercantile Bancorp)
Employee Stock Options. Except as provided in this Agreement or pursuant to At the provisions of any Closing Date, each stock option that is then outstanding under the Company's 1995 Stock Option/Issuance Plan or employee any other plan, whether vested or director unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the date of this Agreement) of the Company's 1995 Stock Option/Issuance Plan or any other plan, whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the date of this Agreement) of the Company's 1995 Stock Option/Issuance Plan or any other plan and the stock option agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Closing Date, (a) each Company Option assumed by Parent may be exercised solely for shares Parent Common Stock, (b) the number of shares of Parent Common Stock subject to each such assumed Company Option shall be as in effect set forth on the date hereofattached Schedule 1.6, from (c) the date hereof per share exercise price for the Parent Common Stock issuable upon exercise of each such assumed Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time Option shall be converted automatically into an option to purchase Parent Shares as set forth on the attached Schedule 1.6, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in an amount full force and at an exercise price determined as provided below (effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise subject to the terms of the stock option plans of remain unchanged; provided, however, that each such assumed Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares to shall, in accordance with its terms, be subject to the new option shall be equal further adjustment as appropriate to the product of the number of Shares subject to the original option and the Exchange Ratioreflect any stock split, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share andreverse stock split, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs"))dividend, Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Parent after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective TimeClosing Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Asyst Technologies Inc /Ca/)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each of the Employee Stock Options which is all outstanding and unexercised at the Effective Time Company Options, whether vested or unvested, shall be converted automatically into an option to purchase assumed by Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the Company Option Plans (as defined in Section 1.6(b)) and the stock option plans agreements by which such Company Options are evidenced. All rights with respect to Company Common Stock under Company Options assumed by Parent shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (i) each assumed Company Option may be exercised solely for shares of Parent Common Stock, (ii) the number of shares of Parent Common Stock subject to each such Company Option shall be determined by multiplying the number of shares of Company governing Common Stock that were subject to such Company Option immediately prior to the Employee Effective Time by the Option Stock Options Fraction (as defined below), and rounding down to the "Company Stock Option Plans")):
(1) The nearest whole number of shares of Parent Shares Common Stock, (iii) the per share exercise price for the Parent Common Stock issuable upon exercise of each such Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately prior to the Effective Time, by the Option Stock Fraction, and rounding the resulting exercise price up to the nearest whole cent, and (iv) all restrictions on the exercise of each such Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction declared, made or effected by Parent after the new option Effective Time. For purposes of this Section 1.6(a), the “Option Stock Fraction” shall be the fraction having a numerator equal to the Residual Per Share Amount and having a denominator equal to the average of the closing sale prices of a share of Parent Common Stock as reported on the Nasdaq National Market for each of the five consecutive trading days ending on the second trading day prior to the Closing Date (with such average to be adjusted as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction declared, made or effected by Parent during the period from the first of said five consecutive trading days through the Effective Time). Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (x) the number of shares of Parent Common Stock subject to such assumed Company Option, and (y) the exercise price per share of Parent Common Stock issuable upon exercise of such assumed Company Option. Parent shall use commercially reasonable efforts to file with the SEC, within five business days after the Closing Date, a registration statement on Form S-8 registering the Parent Common Stock underlying the assumed Company Options.
(b) At the Effective Time, Parent shall assume the Company’s 1997 Stock Incentive Plan and 2000 Stock Option Plan (collectively, the “Company Option Plans”). Under the Company Option Plans, Parent shall be able to grant stock awards, to the extent permissible under applicable Legal Requirements, using the share reserves of the Company Option Plans as of the Effective Time (including any shares returned to such share reserves as a result of the termination of Company Options that are assumed by Parent pursuant to Section 1.6(a)), except that (i) stock covered by such awards shall be shares of Parent Common Stock, and (ii) all references in the Company Option Plans to a number of shares of Company Common Stock shall be deemed amended to refer instead to a number of shares of Parent Common Stock equal to the product of the number of Shares subject to referenced shares of Company Common Stock multiplied by the original option and the Exchange RatioOption Stock Fraction, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share andwhole number of shares of Parent Common Stock.
(c) Prior to the Effective Time, except the Company shall take all action that may be necessary or that Parent considers appropriate (under the Company Option Plans or otherwise) to effectuate the provisions of this Section 1.6 and to ensure that, from and after the Effective Time, holders of Company Options have no rights with respect to any options which are intended such Company Options other than those specifically provided in this Section 1.6.
(d) The Company has represented and warranted in Section 2.3(b) to qualify Parent that Schedule 1.6(d) accurately sets forth the following information as "incentive stock options" (as defined in section 422 of the Code date of this Agreement: ("ISOs")), Parent shall pay an amount in cash to i) the name of the holder of each outstanding Company Option; (ii) the Company Option Plan pursuant to which such Employee Company Option was granted; (iii) the number of shares of Company Common Stock subject to such Company Option, and the applicable exercise price per share of Company Common Stock; (iv) the vesting schedule applicable to such Company Option; (v) the expiration date of such Company Option; and (vi) the tax status of such Company Option. At the Closing, the Company shall deliver to Parent a definitive closing option schedule (the “Closing Option equal to Schedule”) accurately setting forth: (A) the fair market value information described in clauses “(i)” through “(vi)” of the preceding sentence immediately prior to the Effective Time of such fractional Parent Shares calculated based on Time, (B) the average closing price on Option Stock Fraction and (C) the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full shares of Parent Shares Common Stock that will be subject to the new option (as determined under (1) each Company Option immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. after its assumption by Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time, and the applicable exercise price per share of Parent Common Stock.
Appears in 1 contract
Samples: Merger Agreement (Verity Inc \De\)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each stock option that is then outstanding under the Company's Amended 1986 Incentive Stock Plan and 1994 Senior Executive Stock Plan (collectively, the "Stock Plans"), whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee date of the Company Option) of the Stock Options which is outstanding Plans and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the 4 11 Applicable Fraction, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule, status as an incentive or nonqualified option, and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The adjustment provided herein Company and Parent shall take all action that may be necessary (under the Stock Plans and otherwise) to effectuate the provisions of this Section 1.6. Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and (ii) the exercise price per share of Parent Common Stock issuable upon exercise of such assumed Company Option. (b) Parent will cause the Parent Common Stock issuable upon exercise of the assumed Company Options (the "Assumed Options") to be registered under the Securities Act of 1933, as amended (the "Securities Act"), on Form S-8 promulgated by the Securities and Exchange Commission ("SEC") and to be registered or qualified (or to have established that an exemption from such registration or qualification is available) under the "blue sky" laws of all states in which holders of Company Options reside, within seven (7) business days after the Effective Time, and Parent will use its best efforts to maintain the effectiveness of such registration statement or registration statements for so long as any such Assumed Options shall remain outstanding. With respect to any Company employee or director who subsequent to the Merger will be subject to the reporting requirements under Section 16(a) of the Exchange Act with respect to any ISOs the securities of Parent beneficially owned by such person, Parent shall be and is intended to be effected administer the Assumed Options (including the provisions of the Stock Plans incorporated in the Assumed Options) in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file complies with the disinterested administration requirements of Rule 16b-3 promulgated by the SEC a registration statement on Form S-8 (under the Exchange Act. At or other appropriate form) or a post-effective amendment prior to the Registration Statement as promptly as practicable after the Effective Time Time, Parent will reserve a sufficient number of shares of Parent Common Stock for purposes of registering all Parent Shares issuable after the Effective Time issuance upon exercise of the Employee Assumed Options. (c) Ten percent (10%) of any amount of Parent Common Stock Options, and to be received by any holder of Vested Option Shares under Section 1.6(b) above shall have such registration statement or post-effective amendment become effective and comply, part of the General Escrow Amount pursuant to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective TimeGeneral Escrow Agreement when such Vested Option Shares are issued.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Caere Corp)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each stock option that is then outstanding under the Company Option Plan, whether vested or unvested (a “Company Option”), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee Stock Options which is outstanding date of this Agreement) of the Company Option Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (i) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (ii) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Number, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (iii) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Number, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent. The adjustment provided herein with respect to any ISOs , and (iv) all restrictions on the exercise of each such assumed Company Option shall be continue in full force and is intended to be effected in a manner that is consistent with section 424(a) of effect, and the Code. The duration term, exercisability, vesting schedule and other terms provisions of the new option such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be the same subject to further adjustment as that of the original optionappropriate to reflect any stock split, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (reverse stock split, stock dividend, recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Parent after the Effective Time for purposes Time; provided further, that in no event shall any assumed Company Option have a term in excess of registering ten years.
(b) The Company and Parent shall take all action that may be necessary (under the Company Option Plan and otherwise) to effectuate the provisions of this Section 1.6.
(c) Promptly following the Closing, Parent Shares will deliver to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and (ii) the exercise price per share of Parent Common Stock issuable after the Effective Time upon exercise of such assumed Company Option (the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time“Option Assumption Notice”).
Appears in 1 contract
Samples: Merger Agreement (Sbe Inc)
Employee Stock Options. Except as provided (a) At the Effective Time, each option that is then outstanding under the Company's 1995 Stock Option Plan (the "Stock Plan"), whether vested or unvested (a "Company Option"), shall be assumed by Wavetech in this Agreement or pursuant to accordance with the provisions of any Plan or employee or director stock option agreement terms (as in effect on the date hereof) of the Stock Plan and the stock option agreement, from the date hereof if any, by which such Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted, subject to the Employee Stock Optionsprovisions hereof, into rights with respect to Wavetech Common Stock. At From and after the Effective Time, (i) each Company Option assumed by Wavetech (collectively, the "Assumed Options") may be exercised solely for shares of Wavetech Common Stock, (ii) the Employee number of shares of Wavetech Common Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock each such Assumed Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options shares of Wavetech Common Stock which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Assumed Option would have received pursuant to Section 1.6 in exchange for the shares of Company Common Stock subject to such Assumed Option equal to the fair market value if such Assumed Option had been exercised immediately prior to the Effective Time of such fractional Parent Shares calculated based on Time, (iii) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Wavetech Common Stock issuable upon exercise of each such Assumed Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Assumed Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by a fraction the numerator of which is the number of shares of Wavetech Common Stock subject to such Assumed Option immediately after the Effective Time and the denominator of which is the number of shares of Company Common Stock subject to such Assumed Option immediately prior to the Effective Time, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (iv) all restrictions on the exercise of each such Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule, status as an incentive or nonqualified option, and other provisions of such Company Option shall otherwise remain unchanged; PROVIDED, HOWEVER, that each such Assumed Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Wavetech after the Effective Time. The adjustment provided herein Company and Wavetech shall take all action that may be necessary (under the Stock Plan and otherwise) to effectuate the provisions of this Section 1.12.
(b) Wavetech will use its best efforts to cause the Wavetech Common Stock issuable upon exercise of the Assumed Options to be registered under the Securities Act on Form S-8 promulgated by the Securities and Exchange Commission (the "SEC"), to the extent Wavetech is eligible to use such registration form at the time of such registration, and to be registered or qualified (or to have established that an exemption from such registration or qualification is available) under the "blue sky" laws of all states in which the holders of Company Options reside, within 30 business days after the Effective Time, and Wavetech shall use its best efforts to maintain the effectiveness of such registration statement or registration statements for so long as such Assumed Options remain outstanding. With respect to any Company employee or director who subsequent to the Merger will be subject to the reporting requirements under Section 16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), with respect to any ISOs the securities of Wavetech beneficially owned by such person, Wavetech shall be and is intended to be effected administer the Assumed Options in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file complies with the disinterested administration requirements of Rule 16b-3 promulgated by the SEC a registration statement on Form S-8 (under the Exchange Act. At or other appropriate form) or a post-effective amendment prior to the Registration Statement as promptly as practicable after the Effective Time Time, Wavetech will reserve a sufficient number of shares of Wavetech Common Stock for purposes of registering all Parent Shares issuable after the Effective Time issuance upon exercise of the Employee Stock Assumed Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time.
Appears in 1 contract
Employee Stock Options. Except as provided (a) At the Closing Date, each stock option then outstanding under the stock option plan of Seller (the "Option Plan"), whether vested or unvested ("Seller Option"), shall be assumed by Purchaser ("Assumed Option") in accordance with the terms of this Agreement or pursuant to and the provisions terms (as in effect as of any the Effective Date) of the Option Plan or employee or director and the stock option agreement as by which such Seller Option is evidenced. The Option Plan will be adopted by Seller within a reasonable time after the Effective Date in effect on the date hereofa form mutually acceptable to Seller and Purchaser. All rights with respect to Seller Common Stock under outstanding Seller Options shall thereupon be converted into rights with respect to Purchaser Common Stock.
(b) Accordingly, from and after the date hereof Company will not accelerate Closing Date (a) each Assumed Option may be exercised solely for shares of Purchaser Common Stock, (b) the vesting or exercisability number of or otherwise modify the terms and conditions applicable to the Employee shares of Purchaser Common Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "Company Stock each Assumed Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares shares of Purchaser Common Stock that were subject to such Assumed Option immediately prior to the original option and Closing Date multiplied by the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest whole number of shares of Purchaser Common Stock, (c) the per share andexercise price for Purchaser Common Stock issuable upon exercise of each Assumed Option shall be determined by dividing the exercise price per share of Purchaser Common Stock subject to such Assumed Option, except with respect as in effect immediately prior to any options which are intended the Closing Date, by the Exchange Ratio, and rounding the resulting exercise price up to qualify as the nearest whole cent, (d) each Assumed Option designated an "incentive stock optionsoption" (as defined in section Section 422 of the Code ("ISOsISO")), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value ) immediately prior to the Effective Time Closing Date shall remain an ISO and (e) all restrictions on the exercise of each Assumed Option shall continue in full force and effect (except that the conversion of each Seller Option into an option for Purchaser Common Stock in accordance herewith shall result in a cancellation of any provision in such Seller Option requiring the Employee to resell to Seller shares acquired by exercise of such fractional Parent Shares calculated based on Seller Option if such Employee voluntarily ends his employment with Seller), and the average closing price on term, exercisability, vesting schedule and other provisions of such Seller Option shall otherwise remain unchanged; provided, however, that each Assumed Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Purchaser after the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; andClosing Date.
(2c) The exercise price per Parent Share under At the new option shall be equal to Closing Date, and in accordance with the aggregate exercise price stock purchase agreements between Seller and certain of the original option divided by the total number its Employees, Seller hereby agrees that all rights of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein Seller has with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) Seller Common Stock, as well as all other rights of the Code. The duration and other terms of the new option shall be the same as that of the original optionSeller under such stock purchase agreements, except that all references to Company shall be are hereby deemed to be references assigned to ParentPurchaser. Parent Seller and Purchaser shall take all action that may be necessary (under the Option Plan and otherwise) to effectuate the provisions of this Section 1.9. Following the Closing Date, Purchaser will send to each holder of an Assumed Option a written notice setting forth (i) the number of shares of Purchaser Common Stock subject to such Assumed Option and (ii) the exercise price per share of Purchaser Common Stock issuable upon exercise of such Assumed Option.
(d) Pursuant to Section 4.13, Purchaser shall file with the SEC Securities and Exchange Commission ("SEC"), a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to registering the Registration Statement as promptly as practicable after the Effective Time for purposes shares of registering all Parent Shares Purchaser Common Stock issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, Assumed Options pursuant to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.9.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under the Company's 1997 Stock Award Plan (the "Stock Option Plan"), whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee date of this Agreement) of the Company's Stock Options which is outstanding Option Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Exchange Ratio, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The adjustment provided herein with respect Company and Parent shall take all action that may be necessary (under the Company's Stock Option Plan and otherwise) to any ISOs shall be effectuate the provisions of this Section 1.6. Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and is intended to be effected in a manner that is consistent with section 424(a(ii) the exercise price per share of the Code. The duration and other terms Parent Common Stock issuable upon exercise of the new option shall be the same as that of the original option, except that all references to such assumed Company shall be deemed to be references to ParentOption. Parent shall file with the SEC SEC, within ninety (90) days after the Closing Date, a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to registering the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement Company Options assumed by Parent pursuant to this Section 1.6. At or post-effective amendment become effective and comply, prior to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time, each Stock Appreciation Right that is then outstanding under the Company's Stock Option Plan shall be cashed out by Parent in accordance with Section 7.6 hereof and terminated.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant (a) Prior to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each the Company shall have adopted such resolutions, taken such actions and obtained any necessary consents (including the consent of the Employee individual option holders or awardees, if necessary) as may be required to provide that (i) (A) every option to acquire shares of Company Common Stock Options which is outstanding and unexercised at the Effective Time (the “Company Stock Options”) shall be converted automatically into assumed by Parent as of the Effective Time and shall thereafter be deemed to constitute an option to purchase Parent Shares in an amount acquire, on the same terms and at an exercise price determined conditions as provided below (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the "were applicable under such Company Stock Option Plans")):
immediately prior to the Effective Time, the number (1rounded to the nearest whole number) The number of shares of Parent Shares to be subject to the new option shall be equal to the product of Stock determined by multiplying the number of Shares shares of Company Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Company Stock Option equal to the fair market value immediately prior to the Effective Time of such fractional Parent Shares calculated based on by the average closing Exchange Ratio, at a price on the New York Stock Exchange for the last five trading days immediately preceding the day prior per share (rounded to the Effective Time; and
(2nearest whole cent) The equal to the exercise price per Parent Share under the new option shall be equal share of Company Common Stock otherwise purchasable pursuant to the aggregate exercise price of the original option such Company Stock Option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above)Exchange Ratio; provided, PROVIDED however, that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs Company Stock Option that is an incentive stock option within the meaning of the Code, such substitution shall be and is intended to be effected in a manner that is consistent accordance with section Section 424(a) of the Code. The duration ; or (B) the holder of such Company Stock Option shall have agreed to surrender and other terms of the new option shall be the same as that of the original option, except that all references to cancel such Company shall be deemed Stock Option in full in exchange for a payment (to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after made at the Effective Time by Parent) equal to the difference, if any, between $15.61 per share of Company Common Stock and the applicable per-share exercise price, multiplied by the number of shares of Company Common Stock subject to such Company Stock Option and then vested and exercisable; and (ii) each holder of an outstanding interest in the Company's directors share plan effective as of July 3, 1995 (the “Directors' Share Plan”) shall have agreed to surrender and cancel such interest in exchange for purposes of registering all Parent Shares issuable after a payment (to be made at the Effective Time upon exercise by Parent) equal to $15.61 per share of Company Common Stock represented by such interest.
(b) The Company shall take all action reasonably necessary to approve the disposition of the Employee Company Stock Options, and shall have Options in connection with the Transactions so as to exempt such registration statement or post-effective amendment become effective and comply, to dispositions under Rule 16b-3 of the Exchange Act. To the extent applicable, with state securities any option holder becomes a director or blue sky laws with respect thereto executive officer of Parent at or before the Effective Time, Parent shall take all action reasonably necessary to approve the issuance of any replacement option so as to exempt such award under Section 16b-3 of the Exchange Act.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each stock option that is then outstanding under the Company's 2000 Equity Incentive Plan, whether vested or unvested (a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee Stock Options which is outstanding date of this Agreement) of the Company's 2000 Equity Incentive Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of agreement by which such Company governing the Employee Option is evidenced. All rights with respect to Company Common Stock underlying outstanding Company Options (the "Company Stock Option Plans")):shall thereupon be converted into rights with respect to Parent Common Stock.
(1b) The From and after the Effective Time:
(i) each Company Option assumed by Parent may be exercised solely for shares of Parent Common Stock;
(ii) the number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock;
(iii) the average closing per share exercise price on the New York Stock Exchange ("Parent Exercise Price") for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time, by the Applicable Fraction, and rounding the resulting exercise price up to the nearest whole cent; and
(2iv) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time.
(c) The Company and Parent shall take all action that may be necessary (under the Company's 2000 Equity Incentive Plan and otherwise) to effectuate the provisions of this Section 1.7.
(d) Within two business days of the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option and (ii) the exercise price per share of Parent Share under Common Stock issuable upon exercise of such assumed Company Option. The notice will also reflect the new number of shares awarded to each holder of an assumed Company Option pursuant to Section 1.7(e).
(e) All vested Company Options may be exercised on a cashless basis, at the option of the holder of a Company Option. Any Company Options exercised on a cashless basis shall be exchanged for the number of shares of Parent Common Stock determined by subtracting from the number of Option Conversion Shares the number of Exercise Shares. For the purposes of this Agreement, "Option Conversion Shares" shall be equal to the number of Company Options being exercised multiplied by the Applicable Fraction (as defined in Section 1.5(b)(i)). "Exercise Shares" shall be equal to the fraction having a numerator equal to the aggregate exercise price of the original option divided by Parent Exercise Price (as defined in Section 1.7(b)(iii)) due for the total number of full Parent Shares subject Company Options being exercised and a denominator equal to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to Fair Market Value of the nearest centParent Common Stock. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected in a manner that is consistent with section 424(a) "Fair Market Value" of the Code. The duration and other terms of the new option Parent Common Stock for any Company Options exercised at Closing shall be the same as that Designated Parent Stock Price. Thereafter, the Fair Market Value of the original optionParent Common Stock shall be, except that all references to Company shall be deemed to be references to Parent. Parent shall file with as of any date, the SEC a registration statement on Form S-8 closing sales price for such stock (or other appropriate formthe closing bid, if no sales were reported) as quoted on the Nasdaq National Market (or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Time.exchange
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. (a) At the Effective Time, each of the all rights with respect to Seller Common Stock pursuant to Seller Employee Stock Options which is that are outstanding and unexercised at the Effective Time Time, whether or not then exercisable, shall be converted automatically into an option and become rights with respect to purchase Parent Shares Buyer Common Stock, and Buyer shall assume all Seller Employee Stock Options in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms of the stock option plans of Company governing Seller Stock Plan under which it was issued and the Seller Employee Stock Options Option Agreement by which it is evidenced. From and after the Effective Time, (the "Company i) each Seller Employee Stock Option Plans")):
assumed by Buyer shall be exercised solely for shares of Buyer Common Stock, (1ii) The the number of Parent Shares to be shares of Buyer Common Stock subject to the new option each Seller Employee Stock Option shall be equal to the product of the number of Shares shares of Seller Common Stock subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Seller Employee Stock Option equal to the fair market value immediately prior to the Effective Time multiplied by the Exchange Ratio (subject to adjustment pursuant to Section 1.12 hereof) and (iii) the per share exercise price under each Seller Employee Stock Option shall be adjusted by dividing the per share exercise price under such Seller Employee Stock Option by the Exchange Ratio (subject to adjustment pursuant to Section 1.12 hereof) and rounding down to the nearest cent; provided, however, that the terms of such fractional Parent Shares calculated based on the average closing price on the New York each Seller Employee Stock Exchange for the last five trading days immediately preceding the day prior Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, stock dividend, recapitalization, exchange of shares or other similar transaction subsequent to the Effective Time; and
(2) The exercise price per Parent Share under . It is intended that the new option foregoing shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be and is intended to be effected undertaken in a manner that will not constitute a "modification" as defined in the Code, as to any Seller Employee Stock Option that is consistent with section 424(a) of an "incentive stock option" as defined under the Code. In addition to the above, Seller shall enter into an Amended and Restated Option Agreement with Joxx X. Xxxxxx, President and Chief Executive Officer of Seller, and Jexxxxxxx Xxxxxx, Executive Vice President of Seller, to permit them to exercise their options until the expiration of ten years from the original date of grant of such options, and Buyer acknowledges that Seller may cause the Seller Stock Option Plan to be amended as necessary, consistent with the foregoing.
(b) The duration and other terms shares of Buyer Common Stock covered by the new option stock options to be issued pursuant to Section 5.15(a) shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a covered by an effective registration statement filed on Form S-8 (or other appropriate form) or a post-effective amendment to with the Registration Statement SEC, which shall be filed by Buyer as promptly soon as practicable after the Effective Time for purposes Closing Date and shall be duly authorized, validly issued and in compliance with all applicable federal and state securities laws, fully paid and nonassessable and not subject to or in violation of registering all Parent Shares issuable any preemptive rights. Buyer shall at and after the Effective Time upon exercise have reserved sufficient shares of the Employee Buyer Common Stock Options, and for issuance with respect to such options. Buyer shall have such registration statement or post-effective amendment become effective and comply, also take any action reasonably required to the extent applicable, with be taken under any applicable state securities or blue sky or securities laws in connection with respect thereto at the Effective Timeissuance of such shares.
Appears in 1 contract
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under the Company's 1991 Incentive Stock Option Plan (the "COMPANY ISO PLAN") and the 1991 Non-Qualified Stock Option/Stock Issuance Plan (the "COMPANY NSO PLAN") (the "COMPANY OPTION PLANS"), whether vested or unvested (a "COMPANY OPTION"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee Stock Options which is outstanding date of this Agreement) of the Company Option Plans and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock (collectively, the average closing "OPTION SHARES"), (c) the per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The adjustment provided herein with respect Company and Parent shall take all action that may be necessary (under the Company Option Plans and otherwise) to any ISOs effectuate the provisions of this Section 1.6. It is the intention of the parties that the Company Options assumed by Parent qualify following the Effective Time as incentive stock options as defined in Section 422 of the Code to the extent such Company Options qualified as incentive stock options prior to the Effective Time, and this Section 1.6 shall be and is intended to be effected in a manner that is interpreted consistent with section 424(asuch intent. Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and (ii) the Codeexercise price per share of Parent Common Stock issuable upon exercise of such assumed Company Option. The duration and other terms of the new option shall be the same as that of the original optionNo later than February 1, except that all references to Company shall be deemed to be references to Parent. 2000, Parent shall file with the SEC a registration statement on Form S-8 (for the shares of Parent Common Stock issuable with respect to assumed Company Options that are eligible for inclusion on Form S-8 and shall maintain the effectiveness of such registration statement thereafter for so long as any such options or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Optionsrights remain outstanding. The Company has not taken, and shall have such registration statement not take, any action that would result in the accelerated vesting, exercisability or post-effective amendment become effective payment of the Company Options as a consequence of the execution of, or consummation of the transactions contemplated by, this Agreement. Consistent with the terms of the Company Option Plans and complythe documents governing the outstanding options under the Company Option Plans, the Merger will not terminate any of the outstanding Company Options or accelerate the vesting, exercisability or payment of any Company Options or the shares of Parent Common Stock which will be subject to those options upon the extent applicable, with state securities or blue sky laws with respect thereto at Parent's assumption of the Effective TimeCompany Options in the Merger.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Accrue Software Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an stock option to purchase Parent Shares in an amount acquire Company Common Stock that is then outstanding, including but not limited to those granted under each of (i) the Company's 2000 Equity Incentive Plan (ii) the Company's 1998-1999 Stock Option Plan and at an exercise price determined as provided below (and otherwise subject to iii) the terms of the stock option plans of Company governing the Employee Company's 1997-1999 Stock Options Option Plan (the "Company Stock Option Plans")):
, whether vested or unvested (1a "Company Option"), shall be assumed by Parent in accordance with the terms (as in effect as of the date of this Agreement) The of the applicable Company Stock Option Plan and/or the stock option agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Common Stock as set forth below. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Common Stock, (b) the number of Parent Shares to be shares of Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down to the nearest whole number of such fractional Parent Shares calculated based on shares of Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The adjustment provided herein with respect to any ISOs Company and Parent shall take all action that may be and is intended to be effected in a manner that is consistent with section 424(a) necessary (under each of the CodeCompany Stock Option Plans and otherwise) to effectuate the provisions of this Section 1.6. The duration Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Common Stock subject to such assumed Company Option, and other terms (ii) the exercise price per share of the new option shall be the same as that Common Stock issuable upon exercise of the original option, except that all references to such assumed Company shall be deemed to be references to ParentOption. Parent shall file with the SEC SEC, as soon as reasonably practical but in any event within thirty (30) days after the Closing Date, a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to registering the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, Company Options assumed by Parent pursuant to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.6.
Appears in 1 contract
Employee Stock Options. Except At the Effective Time, each then outstanding Company Option and each other outstanding option to purchase Common Stock of the Company issued in accordance with the terms of this Agreement, whether vested or unvested, shall be assumed by Parent in accordance with the terms (as provided in effect as of the date of this Agreement or pursuant or, for options issued to new employees after the provisions date of any Plan or employee or director stock option agreement this Agreement, as in effect on the date hereofof issuance) of such Company Stock Option Plan under which such Company Option was issued and the stock option agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Parent Common Stock, (b) the Employee number of shares of Parent Common Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans of each such assumed Company governing the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of Parent Shares to be subject to the new option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, and (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent. The adjustment provided herein with respect to any ISOs , and all restrictions on the exercise of each such assumed Company Option shall be continue in full force and is intended to be effected in a manner that is consistent with section 424(a) of effect, and the Code. The duration term, exercisability, vesting schedule and other terms provisions of the new option such Company Option shall otherwise remain unchanged; provided however, that each such assumed Company Option shall, in accordance with its terms, be the same subject to further adjustment as that of the original optionappropriate to reflect any stock split, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (reverse stock split, stock dividend, recapitalization or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable similar transaction effected by Parent after the Effective Time for purposes Time. The Company and Parent shall take all action that may be necessary (under the Company Stock Option Plan and otherwise) to effectuate the provisions of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.6.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Aurora Biosciences Corp)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Timetime, (i) each of the Employee Stock Options which is outstanding and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms shares of Common Stock outstanding under any employee stock option or compensation plan or arrangement of the stock option plans of Company governing (except for the Molecular Dynamics, Inc. 1993 Employee Stock Options Purchase Plan (the "Company Stock Option PlansPurchase Plan")):
) that is vested and exercisable (1other than any option that becomes vested and exercisable by its terms as a result of the transactions contemplated by the Merger Agreement) The shall be canceled, and the Company shall pay each such holder in cash at the Effective Time for each such option an amount determined by multiplying the excess, if any, of $20.50 per Share over the applicable exercise price per Share of such option by the number of Parent Shares shares to be subject which such option relates, and (ii) each option to purchase shares of Common Stock outstanding under any employee stock option or compensation plan or arrangement of the new option Company (except for the Company Stock Purchase Plan) that is unvested or unexercisable at the Effective Time (each, an "Unvested Option") shall be equal to canceled, and Parent shall replace each such Unvested Option with an award (a "Replacement Award") with a total value determined by multiplying the product excess, if any, of $20.50 per Share over the applicable exercise price per Share of such Unvested Option by the number of Shares subject to which such Unvested Option relates. The total value of the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication Replacement Award shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount payable in cash to the holder optionee in five installments, with the first such installment (constituting 25% of such Employee Stock Option equal to the fair market value immediately prior to Replacement Award) payable at the Effective Time and thereafter, the remaining portion of such fractional Parent Shares calculated based the Replacement Award shall be paid in four equal installments on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the business day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above)third, PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein with respect to any ISOs shall be sixth, ninth and is intended to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after twelfth month following the Effective Time (provided that the optionee shall only be entitled to such quarterly payment for purposes any quarter during which such optionee is employed by the Company or its successor as of registering all Parent Shares issuable after the Effective Time upon exercise such quarterly payment date). Each Replacement Award shall represent an unfunded, unsecured obligation of the Employee Stock Options, and shall have such registration statement Company or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timeits successor.
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Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each option (if any) to purchase shares of capital stock of the Employee Stock Options which Company that is outstanding and unexercised at the Effective Time then outstanding, whether vested or unvested (a "Company Option"), shall be converted automatically into an option to purchase assumed by Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to accordance with the terms (as in effect as of the date of this Agreement) of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; PROVIDED, HOWEVER, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The adjustment provided herein with respect Company and Parent shall take all action that may be necessary to any ISOs shall be and is intended effectuate the provisions of this Section 1.6. Following the Closing, Parent will send to be effected in a manner that is consistent with section 424(aeach holder (if any) of an assumed Company Option a written notice setting forth (i) the Code. The duration number of shares of Parent Common Stock subject to such assumed Company Option and other terms (ii) the exercise price per share of the new option shall be the same as that Parent Common Stock issuable upon exercise of the original option, except that all references to such assumed Company shall be deemed to be references to ParentOption. Parent shall file with the SEC SEC, within 15 days after the Closing Date, a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment registering the securities to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time be issued upon exercise of the Employee Stock Optionsany Company Options assumed by Parent pursuant to this Section 1.6, and shall have use reasonable efforts to maintain the effectiveness of such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timefor so long as such Company Options remain outstanding.
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Employee Stock Options. Except as provided in this Agreement or pursuant At the Effective Time (or, at Company's election, prior to expiration of the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms Amended Offer) all outstanding Options to acquire Shares shall immediately vest and conditions applicable to the Employee Stock Optionsbecome fully exercisable. At the Effective TimeTime (or, each at Company's election, prior to expiration of the Employee Stock Options which is outstanding and unexercised at the Effective Time Amended Offer) Company shall take such actions as may be converted automatically into an option necessary to purchase Parent Shares in an amount and at cause each Option with an exercise price determined as provided below of less than the Merger Consideration (and otherwise subject to the terms of the stock option plans of Company governing the Employee Stock Options (the a "Company Stock Option PlansLower Priced Option")):
(1) The number of Parent Shares to be subject amended to provide that the new option holder thereof need not tender any exercise price therefor and that upon exercise such holder shall be receive an amount of cash equal to the product of (x) the amount by which the Merger Consideration exceeds the exercise price per Share subject to such Lower Priced Option, and (y) the number of Shares subject issuable pursuant to the original option and the Exchange Ratiounexercised portion of such Lower Priced Option, PROVIDED that less any fractional Parent Shares resulting from required withholding of taxes. At such multiplication time, all Options other than Lower Price Options shall be rounded down converted into a right to the nearest share andreceive, except with respect to any upon exercise of such options which are intended to qualify as "incentive stock options" (as defined in section 422 including payment of the Code ("ISOs")exercise price of such options), Parent shall pay an amount in cash to the holder of such Employee Stock Option equal to the fair market value immediately prior product of (x) the Merger Consideration, and (y) the number of Shares issuable pursuant to the unexercised portion of such option, less any required withholding of taxes. Anything to the contrary in this Agreement notwithstanding, no payment shall be made pursuant to this Section 8.5 that would be inconsistent with and would violate Article 12 of Company's 1989 Stock Incentive Plan. Prior to the Expiration Date of the Amended Offer Company shall cancel the converging options issued to Richxxx Xxxxx, Xxndx Xxxxxxx, Xxmex Xxxghlin, Ronaxx Xxxx xxx Julix Xxxxx xxxer Company's 1989 Stock Incentive Plan and shall use its best efforts to cancel all other converging options issued under Company's 1989 Stock Incentive Plan. The Company shall take all action necessary to ensure that following the Effective Time no participant in any Plan shall have any right thereunder to acquire equity securities of such fractional Parent Shares calculated based on the average closing price on the New York Stock Exchange for the last five trading days immediately preceding the day prior to the Effective Time; and
(2) The exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above)Parent, PROVIDED that such exercise price shall be rounded up to the nearest cent. The adjustment provided herein Company, Sub, Surviving Corporation or any subsidiary thereof or any cash payment with respect thereto, other than cash amounts payable to any ISOs shall be and is intended holders of Options pursuant to be effected in a manner that is consistent with section 424(a) of the Code. The duration and other terms of the new option shall be the same as that of the original option, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 8.5.
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Samples: Merger Agreement (Vencor Inc)
Employee Stock Options. Except as provided in this Agreement or pursuant to the provisions of any Plan or employee or director stock option agreement as in effect on the date hereof, from the date hereof Company will not accelerate the vesting or exercisability of or otherwise modify the terms and conditions applicable to the Employee Stock Options. At the Effective Time, each stock option that is then outstanding under the Company's 1999 Stock Option Plan, whether vested or unvested (a "COMPANY OPTION"), shall be assumed by Parent in accordance with the terms (as in effect as of the Employee date of this Agreement) of the Company's 1999 Stock Options which is outstanding Option Plan and unexercised at the Effective Time shall be converted automatically into an option to purchase Parent Shares in an amount and at an exercise price determined as provided below (and otherwise subject to the terms of the stock option plans agreement by which such Company Option is evidenced. All rights with respect to Company Common Stock under outstanding Company Options shall thereupon be converted into rights with respect to Parent Common Stock as set forth below. Accordingly, from and after the Effective Time, (a) each Company Option assumed by Parent may be exercised solely for shares of Company governing Parent Common Stock, (b) the Employee Stock Options (the "Company Stock Option Plans")):
(1) The number of shares of Parent Shares to be Common Stock subject to the new option each such assumed Company Option shall be equal to the product of the number of Shares shares of Company Common Stock that were subject to the original option and the Exchange Ratio, PROVIDED that any fractional Parent Shares resulting from such multiplication shall be rounded down to the nearest share and, except with respect to any options which are intended to qualify as "incentive stock options" (as defined in section 422 of the Code ("ISOs")), Parent shall pay an amount in cash to the holder of such Employee Stock Company Option equal to the fair market value immediately prior to the Effective Time multiplied by the Applicable Fraction, rounded down to the nearest whole number of such fractional shares of Parent Shares calculated based on Common Stock, (c) the average closing per share exercise price on the New York Stock Exchange for the last five trading days Parent Common Stock issuable upon exercise of each such assumed Company Option shall be determined by dividing the exercise price per share of Company Common Stock subject to such Company Option, as in effect immediately preceding the day prior to the Effective Time; and
(2) The , by the Applicable Fraction, and rounding the resulting exercise price per Parent Share under the new option shall be equal to the aggregate exercise price of the original option divided by the total number of full Parent Shares subject to the new option (as determined under (1) immediately above), PROVIDED that such exercise price shall be rounded up to the nearest whole cent, and (d) all restrictions on the exercise of each such assumed Company Option shall continue in full force and effect, and the term, exercisability, vesting schedule and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that each such assumed Company Option shall, in accordance with its terms, be subject to further adjustment as appropriate to reflect any stock split, reverse stock split, stock dividend, recapitalization or other similar transaction effected by Parent after the Effective Time. The adjustment provided herein with respect Company and Parent shall take all action that may be necessary (under the Company's 1999 Stock Option Plan and otherwise) to any ISOs shall be effectuate the provisions of this Section 1.6. Following the Closing, Parent will send to each holder of an assumed Company Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such assumed Company Option, and is intended to be effected in a manner that is consistent with section 424(a(ii) the exercise price per share of Parent Common Stock issuable upon exercise of such assumed Company Option. To the Code. The duration and other terms of the new option shall be the same as that of the original optionextent necessary, except that all references to Company shall be deemed to be references to Parent. Parent shall file with the SEC SEC, as soon as reasonably practical but in any event within thirty (30) days after the Closing Date, a registration statement on Form S-8 (or other appropriate form) or a post-effective amendment to registering the Registration Statement as promptly as practicable after the Effective Time for purposes of registering all Parent Shares issuable after the Effective Time upon exercise of the Employee Stock Options, and shall have such registration statement or post-effective amendment become effective and comply, Company Options assumed by Parent pursuant to the extent applicable, with state securities or blue sky laws with respect thereto at the Effective Timethis Section 1.6.
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