Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or Merger Sub are required to pay damages in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Common Stock. Accordingly, in the event damages are payable pursuant to this Article X, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages constitute Holder Damages, and Buyer or Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative. (b) For the purposes of this Agreement, each Person who holds one or more shares of Common Stock as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”. (c) Promptly after the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a), the Holder Representative shall distribute the Holder Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding. For the purposes of this Agreement, “Termination Percentage” means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the number of shares of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) the aggregate number of shares of Common Stock held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (United Rentals North America Inc)
Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or Merger Sub are required to pay damages or the Termination Fee pursuant to this Article X in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Common StockStock and, to the extent applicable, Options. Accordingly, in the event damages are payable pursuant to this Article XIn such a case, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages or Termination Fee constitute Holder Damages, and Buyer or the Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative Representative, for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative.
(b) On or prior to the date the Holder Damages are paid to the Holder Representative in accordance with Section 10.3(a), or as promptly as practicable thereafter, the Board of Directors of the Company will determine in good faith which, if any, Options which shall have vested on or before the Termination Date should be deemed to be “Damaged Options”for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Common Stock or Damaged Options as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”.
(c) Promptly after the later of (i) the determination in accordance with Section 10.3(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a), the Holder Representative shall distribute the Holder Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted to a Termination Date Holder who was an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) shall be distributed among all other Termination Date Holders pro rata in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options. For the purposes of this Agreement, “Termination Percentage” meansPercentage”means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement and (B) the number of shares of Common Stock issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) (i) the sum of the aggregate number of shares of Common Stock held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, plus (ii) the aggregate number of shares of Common Stock issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement.
Appears in 1 contract
Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or the Merger Sub are required to pay damages pursuant to this Article X in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Preferred Stock, Common StockStock and, to the extent applicable, Options. Accordingly, in the event that damages are payable pursuant to this Article X, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages constitute Holder Damages, and Buyer or the Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative Representative, for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative.
(b) On or prior to the date the Holder Damages are paid to the Holder Representative in accordance with Section 10.3(a), or as promptly as practicable thereafter, the Board of Directors of the Company will determine in good faith which, if any, Options which shall have vested on or before the Termination Date should be deemed to be “Damaged Options” for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Preferred Stock, Common Stock or Damaged Options as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”.
(c) Promptly after the later of (i) the determination in accordance with Section 10.3(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a), the Holder Representative shall distribute the Holder Damages Damages, first to the Termination Date Holders of shares of Preferred Stock, in respect of such shares of Preferred Stock, an amount equal to the aggregate Accruing Dividends (as defined in the Company Certificate of Incorporation) accrued on such shares of Preferred Stock as of the Termination Date and then (to the extent of any remaining Holder Damages), to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted to a Termination Date Holder who was an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) shall be distributed among all other Termination Date Holders pro rata in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options. For the purposes of this Agreement, “Termination Percentage” means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, (B) the number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares) and (C) the number of shares of Common Stock issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) the sum of (i) the aggregate number of shares of Common Stock held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, plus (ii) the aggregate number of shares of Common Stock issuable upon the conversion of all Preferred Shares held by all holders of Preferred Stock as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement (assuming that, as of such time, no Accruing Dividends (as defined in the Company Certificate of Incorporation) are outstanding and unpaid with respect to such Preferred Shares), plus (iii) the aggregate number of shares of Common Stock issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement.
Appears in 1 contract
Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or Merger Sub are required pursuant to a final order of a court of competent jurisdiction to pay damages in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Common StockShares and Preferred Shares and, to the extent applicable, Options. Accordingly, at the election of the Holder Representative, in the event damages are payable pursuant to this Article XX, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages constitute Holder Damages, and Buyer or Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative Representative, for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative.
(b) For the purposes of this Agreement, each Person who holds one or more shares of Common Stock Shares or Preferred Shares as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”.
(c) Promptly after the later of the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a10.3(a), the Holder Representative shall distribute the Holder Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentagesthe manner such amounts would be distributed pursuant to Section 2 of the Charter, subject to any applicable withholding. For adjustment determined by the purposes Board of Directors to be appropriate to provide for payment of a portion of such Holder Damages to one or more holders of any Options, if any, that the Board of Directors determines have vested on or before the Termination Date; provided, however, that payment of any Holder Damages in respect of any such Option held by an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Option was granted shall in all events be subject to such holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed.
(d) Notwithstanding anything to the contrary in this Agreement, “Termination Percentage” meansclaims for Holder Damages shall be brought solely by the Holder Representative, with respect on behalf of and as agent to any the Termination Date HolderHolders, a ratio (expressed as a percentage) equal to (x) the number of shares and no holder of Common Stock held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this AgreementShares, divided by (y) the aggregate number of shares of Common Stock held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this AgreementPreferred Shares or Options shall be entitled to assert a claim for Holder Damages.
Appears in 1 contract
Samples: Merger Agreement (V F Corp)
Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or Merger Sub are Parent is required to pay damages or the Parent Fee in an amount that exceeds the CompanyGalaxy’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Common StockGalaxy Shares and, to the extent applicable, Options. Accordingly, in the event damages or the Parent Fee are payable pursuant to this Article XIX, the Holder Stockholder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages or Parent Fee constitute Holder Damages, and Buyer or Merger Sub, as applicable, Parent shall pay such Holder Damages to the Holder Representative for the account of, and as agent to, the Termination Date Holders, to one or more Holders in such accounts designated in writing by the Holder Stockholder Representative.
(b) On or prior to the date the Holder Damages are paid to the Termination Date Holders in accordance with Section 9.6(a), or as promptly as practicable thereafter, the Galaxy Board will determine in good faith which, if any, Options should be deemed to be “Damaged Options” for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Common Stock Galaxy Shares or Damaged Options as of 11:59 p.m. (p.m., Eastern time) , on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”.
(c) Promptly after the later of (i) the determination in accordance with Section 9.6(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative Termination Date Holders in accordance with Section 10.3(a9.6(a)), the Holder Representative Parent shall distribute the Holder Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted under the Stock Plan to a Termination Date Holder who was an employee or independent contractor of Galaxy or any of its Subsidiaries when such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with Galaxy or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option” shall be distributed among all other Termination Date Holders in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options). For the purposes of this Agreement, “Termination Percentage” means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares of Common Stock Galaxy Shares held by such holder as of 11:59 p.m. (p.m., Eastern time, on the date of termination of this Agreement and (B) the number of Galaxy Shares issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m., Eastern time, on the date of termination of this Agreement, divided by (y) (i) the sum of the aggregate number of shares of Common Stock Galaxy Shares held by all holders as of 11:59 p.m. (p.m., Eastern time, on the date of termination of this Agreement, plus (ii) the aggregate number of Galaxy Shares issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m., Eastern time, on the date of termination of this Agreement.
Appears in 1 contract
Entitlement to Damages. (a) The parties hereto acknowledge and agree that, in the event of a termination of this Agreement, to the extent Buyer or Merger Sub are required to pay damages in an amount that exceeds the Company’s expenses or out-of-pocket costs incurred in connection with this Agreement and the transactions contemplated hereby, including any disputes related thereto, such excess (the “Holder Damages”) represents an amount of damages payable in respect of losses suffered by the Termination Date Holders in respect of shares of Common StockUnits and, to the extent applicable, Options. Accordingly, in the event damages are payable pursuant to this Article X, the Holder Representative shall, in its sole and absolute discretion, determine the extent, if any, to which such damages constitute Holder Damages, and and, to the extent the Holder Representative notifies Buyer of such determination, Buyer or Merger Sub, as applicable, shall pay such Holder Damages to the Holder Representative Representative, for the account of, and as agent to, the Termination Date Holders, to one or more accounts designated in writing by the Holder Representative and the portion of such damages otherwise payable directly to the Company pursuant to Section 10.3(a) shall be reduced by the amount of such payment to the Holder Representative.
(b) On or prior to the date the Holder Damages are paid to the Holder Representative in accordance with Section 10.3(a), or as promptly as practicable thereafter, the Board of Managers of the Company will determine in good faith which, if any, Options which would have been In the Money Options as of the Effective Time should be deemed to be “Damaged Options” for the purposes of determining the Termination Date Holders and each Termination Date Holder’s Termination Percentage. For the purposes of this Agreement, each Person who holds one or more shares of Common Stock Units or Damaged Options as of 11:59 p.m. (Eastern time) on the date on which this Agreement is terminated shall be deemed to be a “Termination Date Holder”.
(c) Promptly after the later of (i) the determination in accordance with Section 10.3(b) of which, if any, Options are Damaged Options and (ii) the payment of the Holder Damages to the Holder Representative in accordance with Section 10.3(a)), the Holder Representative shall distribute the Holder Damages to the Termination Date Holders, pro rata in accordance with their respective Termination Percentages, subject to any applicable withholding; provided, however, that payment of any Holder Damages in respect of a Damaged Option granted to a Termination Date Holder who was an employee or independent contractor of the Company or any of its Subsidiaries subject to Section 409A of the Code at any time during the taxable year of such employee or independent contractor in which such Damaged Option was granted shall in all events be subject to the Termination Date Holder’s continued employment with the Company or its Subsidiaries through the date on which Holder Damages are distributed and any Holder Damages not distributed with respect to a Damaged Option by reason of this proviso (such a Damaged Option, an “Excluded Damaged Option”) shall be distributed among all other Termination Date Holders pro rata in accordance with their respective Termination Percentages as determined without regard to any Excluded Damaged Options. For the purposes of this Agreement, “Termination Percentage” means, with respect to any Termination Date Holder, a ratio (expressed as a percentage) equal to (x) the sum of (A) the number of shares Units held by such holder as of Common Stock 11:59 p.m. (Eastern time) on the date of termination of this Agreement and (B) the number of Units issuable upon the exercise in full of any Damaged Options held by such holder as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement, divided by (y) (i) the sum of the aggregate number of shares Units held by all holders as of Common Stock 11:59 p.m. (Eastern time) on the date of termination of this Agreement, plus (ii) the aggregate number of Units issuable upon the exercise in full of all Damaged Options held by all holders as of 11:59 p.m. (Eastern time) on the date of termination of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Meritor Inc)
