Equity-Based Awards. (a) Except as set forth in Section 2.04(a) of the Company Disclosure Letter, the terms of each outstanding option to purchase shares of Company Stock under any equity compensation plan of the Company (a “Company Stock Option”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 2 contracts

Samples: Merger Agreement (Exxon Mobil Corp), Merger Agreement (Xto Energy Inc)

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a) of the Company Disclosure Letter, the~~ The terms of each outstanding option to purchase shares of Company Stock under any ~~equity compensation plan of the~~ Company Stock Plan (a “Company Stock Option”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the Per Share Stock Consideration~~, with any fractional shares rounded down to the next lower whole number of shares~~. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Stock Consideration. For the avoidance of doubt (i) the exercise price of, ~~with any fractional cents rounded up to the next higher~~ and number of ~~whole cents. Notwithstanding the foregoing~~shares subject to, ~~if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related~~ each Adjusted Option shall be determined as necessary to ~~be treated as the grant of new stock right for purposes of~~ comply with Section 409A of the Code, ~~such~~ (ii) any fractional share of Parent Stock resulting from an aggregation of all the shares subject to any Company Stock Option ~~shall not be converted in accordance~~ of a holder granted under a particular award agreement with the ~~preceding provisions but~~ same exercise price shall ~~instead~~ be ~~converted in a manner that would not cause~~ rounded down to the ~~related Adjusted Option to be treated as the grant of new stock right~~ nearest whole share and (iii) for ~~purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no~~ any Company Stock Option to which Section 421 of the Code applies as of the Effective Time (after taking into account the effect of any accelerated vesting thereof, if applicable) by reason of its qualification under any of Sections 422 through 424 of the Code, the exercise price, the number of shares purchasable pursuant to such option and the terms and conditions of exercise of such option shall be ~~subject~~ determined in order to ~~accelerated vesting upon or in connection~~ comply with Section 424 of the ~~transactions contemplated herein~~Code. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section ~~2.04~~2.06, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section ~~2.04~~2.06. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall ~~use its reasonable best efforts to~~ have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as ~~any~~ such Company Stock ~~Options remain~~ Option remains outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any ~~equity compensation plan of the~~ Company Stock Plan assumed pursuant to this Section ~~2.04~~ 2.06 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such ~~equity compensation plan of the~~ Company Stock Plan complied with such rule prior to the Merger. (dc) Prior to the Effective Time, the Company ~~shall,~~ shall take any actions with respect to stock option or compensation plans or ~~arrangements, use its reasonable efforts~~ arrangements that are necessary to give effect to the transactions contemplated by this Section ~~2.04~~2.06.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Pepsiamericas Inc/Il/), Merger Agreement (Pepsico Inc)

Appears in 2 contracts

Samples: Merger Agreement (Overseas Shipholding Group Inc), Merger Agreement (Maritrans Inc /De/)

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a)~~ As of the Effective Time, all restricted shares of Company ~~Disclosure Letter,~~ Common Stock granted under the Company’s 2014 Restricted Stock Plan shall vest in full so as to no longer be subject to any forfeiture or vesting requirements pursuant to the terms of the 2014 Restricted Stock Plan, and all such shares of Company Common Stock shall be considered outstanding shares for all purposes of this Agreement, including, without limitation, for purposes of the right to receive the Merger Consideration with respect thereto. The Company Board (or, if appropriate, any committee thereof administering the 2014 Restricted Stock Plan) shall adopt such resolutions or take such other actions as may be required to effect the foregoing. (b) As of the Effective Time, each ~~outstanding~~ option granted by the Company to purchase shares of Company Common Stock under ~~any equity compensation plan of~~ the ~~Company~~ DCB Financial Corp 2004 Long-Term Stock Incentive Plan that is outstanding and unexercised immediately prior to the Effective Time (a “Company Stock Option”), whether or not ~~exercisable~~ vested or ~~vested~~exercisable, shall be ~~adjusted as necessary~~ cancelled and cease to ~~provide that, at the Effective Time, each~~ represent an option to purchase Company Common Stock ~~Option outstanding immediately prior to the Effective Time~~ and shall be converted automatically into the right to receive a cash payment from the Buyer in an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, the number of shares of Parent Stock amount equal to the product of (i) the positive difference, if any, between the Per Company Share Cash Equivalent Consideration (as defined below) and the exercise price of such Company Stock Option and (ii) the number of shares of Company Common Stock subject to such Company Stock Option ~~immediately prior to~~ (the “Option Consideration”). If the exercise price of a Company Stock Option exceeds the Per Company Share Cash Equivalent Consideration, then at the Effective Time such Company Stock Option shall be cancelled without any payment made in exchange therefor. The payment of the Option Consideration referred to above shall be subject to each such option holder executing such instruments of cancellation as Company and Buyer may reasonably deem appropriate. The Company shall make the necessary tax withholdings from the Option Consideration as required by law. (c) For purposes of this Agreement, “Per Company Share Cash Equivalent Consideration” means an amount equal to the amount in cash, without interest, rounded to the nearest cent, equal to the (i) the Buyer Share Closing Price multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated hereinExchange Ratio. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 2 contracts

Samples: Merger Agreement (First Commonwealth Financial Corp /Pa/), Merger Agreement (DCB Financial Corp)

Equity-Based Awards. ~~(a) Except as set forth in Section 2.04(a) of~~ Prior to the ~~Company Disclosure Letter~~Effective Time, the ~~terms~~ Board of ~~each outstanding option to purchase shares of Company Stock under any equity compensation plan~~ Directors of the Company (or, if appropriate, any committee thereof administering the Company Stock Option Plans) shall adopt such resolutions and take such other actions as may be required to provide that: (a) each option to purchase Company Common Shares other than rights under the Company ESPP (each, a “Company Stock Option”~~), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option~~ ) outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, whether vested or unvested, shall, as of the ~~number~~ Effective Time, be canceled and the holder thereof shall then become entitled to receive solely, in full satisfaction of ~~shares~~ the rights of ~~Parent Stock~~ such holder with respect thereto, a lump-sum cash payment, without interest, equal to the product of (i) the number of ~~shares of~~ Company ~~Stock subject to~~ Common Shares for which such Company Stock Option ~~immediately prior to the Effective Time multiplied by~~ has not then been exercised and (ii) the ~~Per Share Consideration~~excess, ~~with any fractional shares rounded down to~~ if any, of the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) Merger Consideration over the exercise price per share of such Company Stock ~~subject to~~ Option; provided, that any such Company Stock Option ~~immediately prior~~ with an exercise price per Company Common Share that is equal to or greater than the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option Merger Consideration shall be ~~subject to accelerated vesting upon or in connection with the transactions contemplated herein.~~canceled for no consideration; (b) ~~Each~~ each restricted stock ~~award or performance share award~~ unit (each, a “Company RSU”) granted prior to the date hereof that is outstanding immediately prior to the Effective ~~Time under any equity compensation plan~~ Time, whether vested or unvested, shall, as of ~~the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at~~ the Effective Time, be canceled and the holder thereof shall then become entitled to receive solely, in full satisfaction of the rights of such ~~Company Stock Award shall be converted into~~ holder with respect thereto, a ~~restricted stock award or performance share award~~lump-sum cash payment, ~~as applicable~~without interest, ~~relating to the number of shares of Parent Stock~~ equal to the product of (i) the number of ~~shares of~~ Company ~~Stock relating~~ Common Shares subject to such Company ~~Stock Award~~ RSU as of immediately prior to the Effective Time ~~multiplied by~~ and (ii) the ~~Per Share~~ Merger Consideration; and (c) each Company RSU granted following the date hereof that is outstanding immediately prior to the Effective Time shall, as of the Effective Time, be converted into an unvested award representing the opportunity to receive cash payments, without interest, in an aggregate amount equal to the product of (i) the number of Company Common Shares subject to such Company RSU as of immediately prior to the Effective Time and (ii) the Merger Consideration, with ~~any fractional shares rounded down~~ such aggregate amount being payable on the vesting dates applicable to such Company RSU as of immediately prior to the ~~next lower whole~~ Effective Time based proportionately on the number of ~~shares. Except as set forth in Section 2.04(b) of the~~ Company ~~Disclosure Letter~~Common Shares that would have vested on each such vesting date, ~~each converted Company Stock Award~~ and which award shall continue to vest and shall otherwise be subject to the same ~~terms,~~ terms and conditions ~~and restrictions~~ as were applicable ~~under~~ to such Company ~~Stock Award~~ RSU as of immediately prior to the Effective ~~Time. Notwithstanding the foregoing,~~ Time (including any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject terms and conditions related to accelerated vesting upon or a termination of the holder’s employment in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, ~~will be subject~~ but excluding any terms and conditions related to ~~the reporting requirements under Section 16(a)~~ accelerated vesting solely as a result of ~~the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04~~ a change in ~~a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger~~control). (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 2 contracts

Samples: Merger Agreement (Fresenius SE & Co. KGaA), Merger Agreement (Akorn Inc)

Equity-Based Awards. (a) ~~Except~~ Each award of restricted share units that corresponds to Shares and vests solely based on the passage of time (each, a “Company RSU Award”), whether vested or unvested, that is outstanding immediately prior to the Effective Time, shall, as ~~set forth~~ of the Effective Time, shall be assumed by Parent and converted into a restricted unit award with respect to Common Units (each an “Assumed RSU Award”). Each Assumed RSU Award shall be converted into a restricted unit award to receive a number of Common Units equal to the product obtained by multiplying (x) the number of Shares subject to such Company RSU Award immediately prior to the Effective Time by (y) a ratio equal to (A)(1) the Per Share Cash Amount divided by (2) the closing price of one Common Unit on the NYSE on the day prior to the Closing Date plus (B) the Exchange Ratio (such ratio, the “Equity Exchange Ratio”), rounded up or down to the nearest whole Common Unit. Each Assumed RSU Award shall (i) otherwise be subject to the same terms and conditions (including as to vesting and issuance) as were applicable to the Company RSU Award immediately prior to the Effective Time and (ii) fully accelerate upon a termination without “cause,” for “good reason” or a result of the holder’s death or disability (as such terms are defined in Section ~~2.04(a~~5.6(a) of the Company Disclosure ~~Letter~~Schedule). (b) Each award of performance share units that corresponds to Shares (each, ~~the terms of each outstanding option to purchase shares of Company Stock under any equity compensation plan of the Company (~~a “Company ~~Stock Option~~PSU Award”), ~~whether or not exercisable or vested, shall be adjusted~~ that is outstanding and vested as ~~necessary to provide that, at~~ of the Effective Time, ~~each~~ shall, as of the Effective Time, be cancelled in exchange for the payment of the Merger Consideration with respect to the number of Shares equal to the total number of Shares with respect to which such Company PSU Award has vested prior to the Effective Time. The Surviving Corporation shall issue to the holders of Company PSU Awards the Merger Consideration in respect of the applicable number of Shares described in the immediately preceding sentence, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the making of such payment, within five business days following the Effective Time. Each Company PSU Award that is outstanding and unvested as of the Effective Time shall automatically, and without any required action of the holder thereof, be cancelled without consideration. (c) Each award of restricted Company Common Stock ~~Option~~ that is outstanding immediately prior to the Effective Time ~~shall be converted into an option~~ (~~each, an~~ the “~~Adjusted Option”) to acquire, on~~ Company Restricted Shares,” together with the ~~same terms~~ Company RSU Awards and ~~conditions as were applicable under such~~ the Company ~~Stock Option immediately prior to the Effective Time~~PSU Awards, the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company ~~Stock Award~~Equity Awards”) shall be ~~adjusted as necessary~~ assumed by Parent and converted into a restricted unit award with respect to ~~provide that, at the Effective Time, such Company~~ Common Units (each an “Assumed Restricted Stock Award”). Each Assumed Restricted Stock Award shall be converted into a restricted ~~stock~~ unit award ~~or performance share award, as applicable, relating~~ representing a contractual right upon vesting to ~~the~~ receive a number of ~~shares of Parent Stock~~ Common Units equal to the product of obtained by multiplying (ix) the number of ~~shares of Company Stock relating~~ Shares subject to such ~~Company~~ Assumed Restricted Stock Award immediately prior to the Effective Time ~~multiplied~~ by (iiy) the ~~Per Share Consideration~~Equity Exchange Ratio, ~~with any fractional shares~~ rounded up or down to the ~~next lower~~ nearest whole ~~number of shares~~Common Unit. ~~Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company~~ Each Assumed Restricted Stock Award shall otherwise be subject to the same ~~terms,~~ terms and conditions (including as to vesting and ~~restrictions~~ issuance) as were applicable ~~under such~~ to the Company ~~Stock Award~~ Restricted Shares immediately prior to the Effective Time. ~~Notwithstanding the foregoing, any Company~~ Each Assumed Restricted Stock Award ~~vesting condition contingent on the achievement of specified Company stock targets~~ shall (~~“Stock Vesting Targets”~~i) ~~shall~~ otherwise be ~~adjusted so that each Stock Vesting Target is equal~~ subject to the ~~quotient of:~~ same terms and conditions (Aincluding as to vesting and issuance) ~~the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up~~ as were applicable to the ~~next higher number~~ Company Restricted Shares immediately prior to the Effective Time, (ii) have distribution equivalent rights, and (iii) fully accelerate upon a termination without “cause,” for “good reason” or a result of ~~whole cents. Except~~ the holder’s death or disability (as ~~set forth~~ such terms are defined in Section ~~2.04(b~~5.6(a) of the Company Disclosure ~~Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein~~Schedule). (cd) ~~Parent~~ Notwithstanding the foregoing, each Company Restricted Share and Company RSU Award that is outstanding immediately prior to the Effective Time that is held by a non-employee director of the Board of Directors (a “Director Restricted Share Award”) shall, as of the Effective Time, become fully vested and shall be cancelled in exchange for the payment of the Merger Consideration with respect to the total number of Shares subject to such Director Restricted Share Award. The Surviving Corporation shall issue to the holders of Director Restricted Share Awards the Merger Consideration in respect of the applicable number of Shares described in the immediately preceding sentence, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the making of such payment, within five (5) business days following the Effective Time. (e) Prior to the Effective Time, the Company shall take ~~such~~ all actions ~~as are~~ (including obtaining any necessary ~~for~~ determinations and/or resolutions of the ~~assumption~~ Board of Directors of the Company or a duly authorized committee thereof, and, if appropriate, amending the terms of the ESPP) that may be necessary or required under the ESPP and applicable Laws to ensure that (i) no new offering period under the ESPP shall begin after September 30, 2019; (ii) with respect to the current offering period set to end on September 30, 2019 any remaining contributions held in the participant accounts under the ESPP after the purchase of shares of Company Common Stock ~~Options pursuant~~ at the end of such offering period shall be returned to ~~this~~ the participant (without interest) after the last business day of the offering, (iii) the ESPP shall terminate in its entirety immediately prior to the Closing and no further rights shall be granted or exercised under the ESPP thereafter. Notwithstanding any restrictions on transfer of stock in the ESPP, all shares of Company Common Stock purchased under the ESPP shall be treated in accordance with Section ~~2.04, including the reservation, issuance~~ 2.1(a). (f) The Company shall take any and ~~listing of Parent Stock as is~~ all actions reasonably necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger5.6. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 2 contracts

Samples: Agreement and Plan of Merger (Energy Transfer LP), Merger Agreement (SemGroup Corp)

Equity-Based Awards. Prior to the Offer Acceptance Time, the Board of Directors of the Company (or, if appropriate, any committee thereof administering the Company Stock Plan) shall adopt such resolutions and take such other actions as may be required to provide that: (a) ~~Except as set forth in Section 2.04(a) of the Company Disclosure Letter, the terms of~~ each ~~outstanding~~ option to purchase shares of Company Common Stock ~~under any equity compensation plan of the Company~~ (each, a “Company Stock Option”), whether vested or ~~not exercisable or vested~~unvested, ~~shall be adjusted~~ shall, as ~~necessary to provide that, at~~ of the Effective Time, ~~each Company Stock Option outstanding immediately prior~~ be canceled and the holder thereof shall then become entitled to receive solely, in full satisfaction of the ~~Effective Time shall be converted into an option (each~~rights of such holder with respect thereto, ~~an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, the number of shares of Parent Stock~~ a lump-sum cash payment equal to the product of (i) the number of shares of Company Common Stock ~~subject to~~ for which such Company Stock Option ~~immediately prior to the Effective Time multiplied by~~ has not been exercised and (ii) the ~~Per Share Consideration~~excess, ~~with any fractional shares rounded down to~~ if any, of the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) Merger Consideration over the exercise price per share of ~~Company Stock subject to~~ such Company Stock Option ~~immediately prior~~ (and for the avoidance of doubt, any Company Stock Option that has an exercise price that is greater than or equal to the Merger Consideration shall be cancelled at the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no ~~Company Stock Option shall be subject to accelerated vesting upon~~ consideration or ~~in connection with the transactions contemplated herein.~~payment); (b) ~~Each restricted stock award or performance~~ each share ~~award~~ of Company Common Stock subject to forfeiture conditions (each, a “Company Restricted Share”) outstanding immediately prior to the Effective Time ~~under any equity compensation plan of~~ shall be converted into the ~~Company~~ right to receive an amount in cash equal to the Merger Consideration; (c) each restricted stock unit (each, a “Company ~~Stock Award~~RSU”) outstanding immediately prior to the Effective Time shall be ~~adjusted as necessary~~ canceled and the holder thereof shall then become entitled to ~~provide that~~receive solely, at in full satisfaction of the ~~Effective Time~~rights of such holder with respect thereto, ~~such Company Stock Award shall be converted into~~ a ~~restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock~~ lump-sum cash payment equal to the product of (i) the number of shares of Company Common Stock ~~relating~~ subject to such Company ~~Stock Award~~ RSU immediately prior to the Effective Time ~~multiplied by~~ and (ii) the ~~Per Share~~ Merger Consideration; (d) each deferred stock unit (each, ~~with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b~~a “Company DSU”) ~~of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award~~ outstanding immediately prior to the Effective ~~Time. Notwithstanding~~ Time shall be canceled and the ~~foregoing~~holder thereof shall then become entitled to receive solely, ~~any~~ in full satisfaction of the rights of such holder with respect thereto, a lump-sum cash payment equal to the product of (i) the number of shares of Company Common Stock subject to such Company DSU immediately prior to the Effective Time and (ii) the Merger Consideration; (e) each PSU Award ~~vesting condition contingent on~~ granted in calendar year 2016 that is outstanding immediately prior to the ~~achievement of specified Company stock targets~~ Effective Time (each, a “~~Stock Vesting Targets~~New PSU Award”) shall be ~~adjusted so that each Stock Vesting Target is~~ canceled and the holder thereof shall then become entitled to receive solely, in full satisfaction of the rights of such holder with respect thereto, a lump-sum cash payment equal to the ~~quotient of:~~ greater of (i) the product of (A) the number of shares of Company Common Stock ~~Vesting Target divided by~~ subject to the New PSU Award at the “target amount” as set forth in the applicable award agreement and (B) the ~~Per Share Consideration, with any fractional cents rounded up to~~ Merger Consideration or (ii) the ~~next higher~~ product of (A) the number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of ~~Parent Stock subject to the~~ Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individualsCommon Stock, if any, ~~who, subsequent~~ that would be earned under the New PSU Award based on the financial results for the fiscal quarters completed prior to the Effective Time, ~~will~~ as measured against the performance goals set forth in the applicable award agreement, which performance goals shall be ~~subject to~~ prorated for the ~~reporting requirements under Section 16(a)~~ period from the beginning of the ~~1934 Act, where applicable, Parent shall administer any equity compensation plan~~ applicable performance period through the last day of the ~~Company assumed pursuant to this Section 2.04 in~~ most recently completed fiscal quarter and (B) the Merger Consideration; and (f) each PSU Award that is not a ~~manner~~ New PSU Award and that ~~complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule~~ is outstanding immediately prior to the ~~Merger.~~ Effective Time (deach, a “Non-New PSU Award”) ~~Prior~~ shall be canceled and the holder thereof shall then become entitled to receive solely, in full satisfaction of the rights of such holder with respect thereto, a lump-sum cash payment equal to the product of (i) the number of shares of Company Common Stock, if any, that would be earned under the Non-New PSU Award based on the financial results for the fiscal quarters completed prior to the Effective Time, as measured against the ~~Company shall~~performance goals set forth in the applicable award agreement, ~~with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to~~ which performance goals shall be prorated for the ~~transactions contemplated by this Section 2.04~~period from the beginning of the applicable performance period through the last day of the most recently completed fiscal quarter and (ii) the Merger Consideration.

Appears in 2 contracts

Samples: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a) of the Company Disclosure Letter, the terms of each outstanding~~ Each option to purchase ~~shares of~~ Shares granted pursuant to a Company Stock ~~under any equity compensation plan of the Company~~ Plan (each, a “Company ~~Stock~~ Option”~~), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option~~ ) that is outstanding immediately prior to the Effective Time ~~shall~~ shall, as of the Effective Time, be converted into an option (each, an “Adjusted Option”) to ~~acquire~~purchase, on the same terms and conditions as were applicable ~~under~~ to such Company ~~Stock~~ Option outstanding immediately prior to the Effective Time, the number of shares of Parent Common Stock, rounded down to the nearest whole share, determined by multiplying the number of Shares subject to the Company Option immediately prior to the Effective Time by the Equity Award Exchange Ratio, at an exercise price per share of Parent Common Stock, rounded up to the nearest whole cent, equal to the per share exercise price for the Shares otherwise purchasable pursuant to the Company Option outstanding immediately prior to the Effective Time divided by the Equity Award Exchange Ratio. (b) Each award of restricted stock units in respect of Shares granted under a Company Stock Plan (each, a “Company RSU”) that is outstanding as of the Effective Time shall be converted as of the Effective Time into a restricted stock unit award (each, an “Adjusted RSU”) in respect of the number of shares of Parent Common Stock, rounded to the nearest whole share, determined by multiplying the number of Shares subject to the Company RSU outstanding immediately prior to the Effective Time by the Equity Award Exchange Ratio, with each Adjusted RSU to continue to be subject to the same terms and conditions as were applicable to the related Company RSU outstanding or payable immediately prior to the Effective Time. (c) Each right of any kind (excluding Company Options and Company RSUs), contingent or accrued, to receive Shares or cash payments measured by the value of a number of Shares granted under a Company Deferred Compensation Plan (each, an “Other Stock-Based Award”) that are outstanding immediately prior to the Effective Time shall be deemed to be converted as of the Effective Time into the right to receive (or to be credited with) the number of shares, or benefits measured by the value of the number of shares, of Parent Common Stock, rounded to the nearest whole share, equal to the product of (i) the number of ~~shares of Company Stock~~ Shares subject to ~~such Company Stock Option~~ the Other Stock-Based Award outstanding immediately ~~prior to~~ before the Effective ~~Time multiplied by~~ Time, and (ii) the ~~Per Share Consideration~~Equity Award Exchange Ratio (each, an “Adjusted Other Stock-Based Award”), with ~~any fractional shares rounded down~~ each Adjusted Other Stock-Based Award to ~~the next lower whole number of shares. The exercise price per share of Parent Stock subject~~ continue to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to ~~accelerated vesting upon or in connection with~~ the ~~transactions contemplated herein. (b) Each restricted stock award or performance share award~~ same terms and conditions as were applicable to the related Other Stock-Based Award outstanding immediately prior to the Effective ~~Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective~~ Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger. (d) Prior to the Effective Time, the Company ~~shall~~Board and/or the appropriate committee thereof shall adopt resolutions providing for the treatment of the Company Options, ~~with respect to stock option or compensation plans or arrangements~~Company RSUs, ~~use its reasonable efforts to give effect~~ and Other Stock-Based Awards (collectively, the “Company Stock Awards”) outstanding immediately prior to the ~~transactions~~ Effective Time as contemplated by this Section ~~2.04~~2.4. For the avoidance of doubt, in no event shall any holder of a Company Stock Award receive the Merger Consideration as consideration for such Company Stock Awards. As of the Effective Time, Parent shall file one or more appropriate registration statements (on Form S-3 or Form S-8, or any successor or other appropriate forms) with respect to Parent Common Stock underlying the Adjusted Options and in respect of the Adjusted RSUs and the Adjusted Other Stock-Based Awards pursuant to this Section 2.4. (e) For the purposes of this Section 2.4:

Appears in 2 contracts

Samples: Merger Agreement (McMoran Exploration Co /De/), Merger Agreement (Freeport McMoran Copper & Gold Inc)

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a)~~ Each award of phantom units that corresponds to Partnership Common Units and vests solely based on the ~~Company Disclosure Letter~~passage of time (including any Seconded Employee Phantom Awards), ~~the terms of each outstanding option to purchase shares of Company Stock under any equity compensation plan of the Company~~ whether vested or unvested (a “~~Company Stock Option~~Partnership Phantom Units”), ~~whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option~~ that is outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, ~~the number~~ shall, as of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective Time, be assumed by Parent and converted into a restricted unit award representing a contractual right to receive Parent Common Units or, in the case of Seconded Employees, the right to receive cash determined based on the value of Parent Common Units (each an “Assumed Restricted Unit Award”). Each such ~~Company Stock~~ Assumed Restricted Unit Award shall be converted into a restricted ~~stock~~ unit award to receive a number of Parent Common Units (or ~~performance share award~~the cash equivalent thereof, as applicable~~, relating to the number of shares of Parent Stock~~ ) equal to the product of obtained by multiplying (ix) the number of ~~shares of Company Stock relating~~ Partnership Common Units subject to such ~~Company Stock Award~~ Partnership Phantom Unit immediately prior to the Effective Time ~~multiplied~~ by (iiy) the ~~Per Share Consideration~~Exchange Ratio, ~~with any fractional shares~~ rounded up or down to the ~~next lower~~ nearest whole ~~number of shares~~Parent Common Unit. ~~Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock~~ Each Assumed Restricted Unit Award shall otherwise be subject to the same ~~terms~~terms and conditions (including as to vesting, ~~conditions~~ distribution equivalent rights and ~~restrictions~~ issuance) as were applicable ~~under such Company Stock Award~~ to the Partnership Phantom Unit immediately prior to the Effective Time. (b) Each award of performance units that corresponds to Partnership Common Units, including Seconded Employee Performance Awards (each, a “Partnership Performance Award,” and together with the Partnership Phantom Units, the “Partnership Equity Awards”), that is outstanding and unvested as of the Effective Time, shall, as of the Effective Time, be measured as to performance as of the Effective Time (or a date reasonably proximate thereto) as determined in good faith by the GP Board and each such Partnership Performance Award shall, with respect to the number of Partnership Common Units that are considered earned with respect thereto based on the higher of actual performance or target shall, as of the Effective Time (the “Earned Performance Units”), be assumed by Parent and converted into an Assumed Restricted Unit Award, which shall have distribution equivalent rights and be eligible to vest solely based on continued service at the end of the performance period that was originally applicable thereto; provided, however, that the Earned Performance Units will vest upon a “qualifying termination” and, to the extent applicable, will incorporate the provisions related to termination due to “retirement,” as provided in the Partnership Phantom Unit Awards. Notwithstanding the foregoing, ~~any Company Stock Award vesting condition contingent on~~ with respect to Partnership Performance Awards granted in 2021, the ~~achievement~~ number of ~~specified Company stock targets (“Stock Vesting Targets”)~~ Earned Performance Units shall be ~~adjusted so that each Stock Vesting Target is~~ equal to the ~~quotient of: (A)~~ target number of units granted, regardless of performance. The number of Parent Common Units that are subject to such Assumed Restricted Unit Awards shall be equal to the ~~Stock Vesting Target divided~~ number of Earned Performance Units with respect to the corresponding Partnership Performance Award, multiplied by ~~(B)~~ the ~~Per Share Consideration~~Exchange Ratio, ~~with any fractional cents~~ rounded up or down to the ~~next higher number of~~ nearest whole ~~cents~~Parent Common Unit. ~~Except as set forth in Section 2.04(b) of~~ Any performance units that correspond to Partnership Common Units that are not Earned Performance Units shall, upon the ~~Company Disclosure Letter~~Effective Time, automatically be cancelled for no ~~Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein~~consideration. (c) ~~Parent~~ The General Partner shall take ~~such~~ any and all actions ~~as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is~~ reasonably necessary to effectuate the transactions contemplated by this Section ~~2.04. Parent~~ 5.6 and such transactions shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to ~~the reporting requirements under~~ compliance with Section ~~16(a)~~ 409A of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the MergerCode. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 2 contracts

Samples: Merger Agreement (Energy Transfer LP), Merger Agreement (Enable Midstream Partners, LP)

Equity-Based Awards. (a) Except as ~~set forth~~ provided in Section ~~2.04(a) of the Company Disclosure Letter~~2.04(d), the terms of each outstanding compensatory option to purchase shares of Company Stock ~~under any equity compensation plan of the Company~~ (a “Company Stock Option”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, the number of shares of Parent Class A Common Stock equal to the product of (~~i) the~~ i)the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Class A Common Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the ~~Per Share Consideration~~Exchange Ratio, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner reasonably acceptable to Parent and the Company that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein.409A. (b) ~~Each~~ Except as provided in Section 2.04(c) and Section 2.04(d), the terms of each outstanding restricted stock ~~award~~ unit or ~~performance share award outstanding immediately prior to the Effective Time under any equity compensation plan~~ deferred stock unit that, in either case, is settleable in shares of ~~the~~ Company Stock (~~each,~~ a “Company ~~Stock Award~~RSU”) ), whether or not vested, shall be adjusted as necessary to provide that, at the Effective Time, ~~such~~ each Company ~~Stock Award~~ RSU outstanding immediately prior to the Effective Time shall be converted into a ~~restricted stock award or performance share award~~RSU (each, an “Adjusted RSU”) to acquire, on the same terms and conditions as ~~applicable~~were applicable under such Company RSU immediately prior to the Effective Time, ~~relating to~~ the number of shares of Parent Class A Common Stock equal to the product of (i) the number of shares of Company Stock ~~relating~~ subject to such Company ~~Stock Award~~ RSU immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares~~. Except as set forth~~ . (c) At or promptly after the Effective Time, each outstanding Company RSU (each, a “Director RSU”) held by a non-employee director or former non-employee director of the Company (each, a “Director”), whether or not vested, shall be canceled, and the Company shall pay each such Director at or promptly after the Effective Time for each such Director RSU an amount in cash computed by first determining the Adjusted RSU that such Director would receive if the Director RSU held by such Director was converted into an Adjusted RSU pursuant to the methodology described in Section 2.04(b) (each, a “Notional Adjusted RSU”) and then multiplying (i) the closing sale price of a share of Parent Class A Common Stock on NASDAQ on the trading day immediately preceding the Effective Time by (ii) the number of shares of Parent Class A Common Stock with respect to the Notional Adjusted RSUs. (i) At or promptly after the Effective Time, each outstanding Company Stock Option (each, a “Former Employee Option”) held by a former employee or individual contractor of the Company ~~Disclosure Letter~~(each, ~~each converted Company Stock Award~~ a “Former Employee”), whether or not exercisable or vested, shall be ~~subject~~ cancelled, and the Company shall pay each such Former Employee at or promptly after the Effective Time for each such Former Employee Option an amount in cash computed by first determining the Adjusted Option that such Former Employee would receive if the Former Employee Option held by such Former Employee was converted into an Adjusted Option pursuant to the ~~same terms~~methodology described in Section 2.04(a) (each, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (a “~~Stock Vesting Targets~~Notional Adjusted Option”) ~~shall be adjusted so that each Stock Vesting Target is equal to the quotient of:~~ and then multiplying (A) the excess of the closing sale price of a share of Parent Class A Common Stock ~~Vesting Target divided~~ on NASDAQ on the trading day immediately preceding the Effective Time over the per share exercise price of such Notional Adjusted Option, if any, by (B) the ~~Per Share Consideration, with any fractional cents rounded up~~ number of shares of Company Stock subject to such Notional Adjusted Option to the ~~next higher number~~ extent unexercised. For the avoidance of ~~whole cents. Except~~ doubt, all Former Company Options outstanding as ~~set forth in Section 2.04(b)~~ of the ~~Company Disclosure Letter, no Company~~ Effective Time that have a per share exercise price equal to or exceeding the closing sale price of a share of Parent Class A Common Stock ~~Award~~ on NASDAQ on the trading day immediately preceding the Effective Time shall be ~~subject to accelerated vesting upon~~ immediately cancelled and forfeited without any liability on the part of the Surviving Corporation or ~~in connection with the transactions contemplated herein~~Parent. (cii) At or promptly after the Effective Time, each outstanding Company RSU (each, a “Former Employee RSU”) held by a Former Employee, whether or not vested, shall be canceled, and the Company shall pay each such Former Employee at or promptly after the Effective Time for each such Former Employee RSU an amount in cash computed by first determining the number of Notional Adjusted RSUs held by such Former Employee and then multiplying (A) the closing sale price of a share of Parent Class A Common Stock on NASDAQ on the trading day immediately preceding the Effective Time by (B) the number of shares of Parent Class A Common Stock with respect to the Notional Adjusted RSUs. (e) Parent shall take such actions as are necessary for the assumption of the Company Stock Options and Company RSUs pursuant to ~~this Section 2.04~~Sections 2.04(a) and (b), including the reservation, issuance and listing of Parent Class A Common Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Class A Common Stock subject to the Company Stock Options and Company RSUs to be assumed by Parent and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options and Company RSUs (and to maintain the current status of the prospectus contained therein) for so long as any ~~such~~ Company Stock ~~Options remain~~ Option or any Company RSU remains outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any ~~equity compensation plan of the~~ Company Stock Option and any Company RSU assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such ~~equity compensation plan of the~~ Company Stock Option or such Company RSU complied with such rule prior to the Merger. (df) Prior to the Effective Time, the Company ~~shall,~~ shall take any actions with respect to ~~stock option or~~ equity compensation plans or ~~arrangements, use its reasonable efforts~~ arrangements that are necessary to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Merger Agreement (Comcast Corp)

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a) of the Company Disclosure Letter, the~~ The terms of each ~~outstanding option to purchase shares of Company Stock under any equity compensation plan of the Company (a “Company Stock~~ Option”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each ~~Company Stock~~ Option outstanding immediately prior to the Effective Time shall be ~~converted into~~ replaced by and substituted for an option (each, an “Adjusted MM Option”) to acquire, on the same terms and conditions as were applicable under such ~~Company Stock~~ Option immediately prior to the Effective Time, the number of shares of ~~Parent~~ Surviving Corporation Common Stock equal to the product of (i) the number of shares of Company Common Stock subject to such ~~Company Stock~~ Option immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of ~~Parent~~ Surviving Corporation Common Stock subject to any such Adjusted MM Option will be an amount ~~(rounded up to the nearest whole cent)~~ equal to the quotient of (A) the exercise price per share of Company Common Stock subject to such ~~Company Stock~~ Option immediately prior to the Effective Time divided by (B) the ~~Per Share Consideration~~Exchange Ratio, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of ~~a Company Stock~~ an Option in accordance with the preceding provisions of this Section ~~2.04(a~~5.12(a) would cause the related Adjusted MM Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such ~~Company Stock~~ Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner reasonably acceptable to the Surviving Corporation and the Company that would not cause the related Adjusted MM Option to be treated as the grant of new stock right for purposes of Section 409A. ~~Except as set forth in Section 2.04(a)~~ For avoidance of ~~the Company Disclosure Letter~~doubt, ~~no Company Stock~~ each Adjusted MM Option shall be ~~subject~~ vested to ~~accelerated vesting upon~~ the same extent to which the Option for which it was substituted was vested before or ~~in connection with~~ as of the ~~transactions contemplated herein~~Effective Time. (b) ~~Each~~ The terms of each restricted stock ~~award or performance share award~~ unit that is settleable in shares of Company Common Stock (a “Company RSU”) that is outstanding and unvested immediately prior to the Effective Time ~~under any equity compensation plan~~ and does not fully vest by its terms as of the Effective Time (an “Unvested Company ~~(each, a “Company Stock Award~~RSU”) shall be adjusted as necessary to provide that, at the Effective Time, ~~such~~ each Unvested Company ~~Stock Award~~ RSU outstanding immediately prior to the Effective Time shall be ~~converted into~~ replaced by and substituted for a restricted stock ~~award or performance share award~~unit (each, an “Adjusted MM RSU”) to acquire, on the same terms and conditions as ~~applicable~~were applicable under such Unvested Company RSU immediately prior to the Effective Time, ~~relating to~~ the number of shares of ~~Parent~~ Surviving Corporation Common Stock equal to the product of (i) the number of shares of Company Common Stock ~~relating~~ subject to such Unvested Company ~~Stock Award~~ RSU immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares. ~~Except as set forth in Section 2.04(b)~~ For avoidance of ~~the Company Disclosure Letter~~doubt, each ~~converted Company Stock Award~~ Adjusted MM RSU shall be ~~subject~~ vested to the same ~~terms~~extent to which the Unvested Company RSU for which it was substituted was vested before or as of the Effective Time. (c) To the extent permitted under Treas. Reg. Section 1.409A-3(j)(4) (if applicable), ~~conditions~~ the holder of each Company RSU that is outstanding immediately prior to the Effective Time and ~~restrictions~~ becomes vested by its terms before or as ~~were applicable under~~ of the Effective Time (it being understood that any such ~~Company Stock Award~~ award that vests pursuant to its terms before or as of the Effective Time shall, for purposes of this Agreement, be deemed to be vested immediately prior to the Effective Time~~. Notwithstanding the foregoing, any~~ ) (a “Vested Company ~~Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets~~RSU”) shall receive the number of shares of Company Common Stock subject to such Vested Company RSU in accordance with the terms and conditions of such Vested Company RSU, including any terms and conditions regarding any Taxes required by applicable Law to be ~~adjusted so that each Stock Vesting Target is equal~~ withheld, if any, with respect to the ~~quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number~~ vesting of ~~whole cents. Except as set forth in Section 2.04(b) of the~~ such Vested Company ~~Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein~~RSU. (cd) ~~Parent shall~~ The parties covenant to cause the Surviving Corporation to (x) take such actions as are necessary ~~for~~ to establish a new omnibus equity award plan following the ~~assumption of the Company Stock Options pursuant~~ Effective Time and to ~~this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall~~ prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the ~~1933~~ Securities Act, with respect to the awards and shares of ~~Parent~~ Surviving Corporation Common Stock subject to the ~~Company Stock~~ Adjusted MM Options and Adjusted MM RSUs and other awards issued under such plan and, where applicable, ~~shall~~ (y) use its commercially reasonable ~~best~~ efforts to have such registration statement declared effective as soon as practicable following the Effective Time and (z) use its commercially reasonable efforts to maintain the effectiveness of such registration statement covering such ~~Company Stock~~ Adjusted MM Options and Adjusted MM RSUs (and to maintain the current status of the prospectus contained therein) for so long as any ~~such Company Stock Options remain~~ Adjusted MM Option or any Adjusted MM RSU remains outstanding. . (e) With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the ~~1934~~ Exchange Act, where applicable, ~~Parent~~ the Surviving Corporation shall administer any ~~equity compensation plan of the Company~~ Adjusted MM Option and any Adjusted MM RSU assumed pursuant to this Section ~~2.04~~ 5.12 in a manner that complies with Rule 16b-3 promulgated under the ~~1934~~ Exchange Act to the extent such ~~equity compensation plan of the Company~~ Adjusted MM Option or such Adjusted MM RSU complied with such rule prior to the Merger. (df) ~~Prior to~~ The Company and MM acknowledge and agree that the ~~Effective Time~~substitution of Options and Unvested Company RSUs for Adjusted MM Options and Adjusted MM RSUs, respectively, as provided in this Section 5.12 shall constitute the substitution of “Plan Awards” (as defined in the Company ~~shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to~~ Option Plan) for equivalent awards of the ~~transactions contemplated by this Section 2.04~~Surviving Corporation for purposes of the Company Option Plan and such Plan Awards.

Appears in 1 contract

Samples: Merger Agreement (Majesco)

Equity-Based Awards. (a) ~~Except~~ As soon as ~~set forth in Section 2.04(a)~~ practicable following the date of ~~the Company Disclosure Letter~~this Agreement, the ~~terms~~ Board of ~~each outstanding option to purchase shares of Company Stock under any equity compensation plan~~ Directors of the Company (~~a “~~or, if appropriate, any committee thereof administering the Company Stock Plans) shall adopt such resolutions or take such other actions (including obtaining any required consents) as may be required to effect the following: (i) (A) prior to the Effective Time, each outstanding unvested Company Stock Option shall automatically accelerate so that each such Company Stock Option shall become fully exercisable for all shares of Company Common Stock at the time subject to such Company Stock Option and may be exercised by the holder thereof for any or all of such shares and (B) upon the Effective Time, all outstanding Company Stock Options shall be canceled, with the holder of each Company Stock Option becoming entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount in cash equal to (x) the excess, if any, of the per share Merger Consideration over the exercise price per share of Company Common Stock subject to such Company Stock Option”), ~~whether~~ multiplied by (y) the number of shares of Company Common Stock subject to such Company Stock Option; provided that all amounts payable pursuant to this clause (i) shall be subject to any required withholding of taxes or ~~not exercisable~~ proof of eligibility for exemption therefrom and shall be paid at or ~~vested~~as soon as practicable following the Effective Time, without interest; (ii) each share of Company Restricted Stock shall be adjusted as necessary to provide ~~that~~that the restrictions on such share shall lapse at the Effective Time, and at the Effective Time, each share of Company Restricted Stock ~~Option~~ shall be converted into the right to receive the Merger Consideration in accordance with Section 2.01(c), subject to any applicable withholding pursuant to Section 2.02(h); (iii) upon the Effective Time, each Company Stock-Based Award that is a performance share unit award (a “Company Performance Share Unit Award”) and that is outstanding ~~immediately~~ shall be canceled, with the holder thereof becoming entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount in cash equal to (A) the Merger Consideration multiplied by (B) a number of shares of Company Common Stock determined by multiplying the target number of shares of Company Common Stock subject to such Company Performance Share Unit Award as of the Effective Time by a fraction, the numerator of which is the sum of 365 and the number of days that have elapsed during the applicable performance cycle prior to the Effective Time and the denominator of which is the total number of days in the applicable performance cycle; provided that in no event shall ~~be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time,~~ the number of shares of ~~Parent~~ Company Common Stock determined pursuant to the formula in the foregoing clause (B) exceed 100% of the target number of shares subject to a Company Performance Share Unit Award; provided further that all amounts payable pursuant to this clause (iii) shall be subject to any required withholding of taxes or proof of eligibility for exemption therefrom and shall be paid at or as soon as practicable following the Effective Time, without interest; (iv) upon the Effective Time, each outstanding Company Stock-Based Award that is not a Company Performance Share Unit Award shall be canceled, with the holder thereof becoming entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount in cash equal to (A) the ~~product of~~ Merger Consideration multiplied by (iB) the number of shares of Company Common Stock subject to such Company ~~Stock Option immediately prior to~~ Stock-Based Award as of the Effective ~~Time multiplied by~~ Time; provided that all amounts payable pursuant to this clause (iiiv) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to ~~accelerated vesting upon~~ any required withholding of taxes or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan proof of ~~the Company (each, a “Company Stock Award”)~~ eligibility for exemption therefrom and shall be ~~adjusted as necessary to provide that,~~ paid at ~~the Effective Time, such Company Stock Award shall be converted into a restricted stock award~~ or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective ~~Time and~~ Time, without interest; and (v) make such other changes to ~~maintain~~ the ~~effectiveness of such registration statement covering such~~ Company Stock ~~Options (~~Plans as Parent and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company ~~assumed pursuant~~ may reasonably agree are appropriate to ~~this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior~~ give effect to the Merger. (db) ~~Prior~~ As soon as reasonably practicable following the date of this Agreement, the Company shall take all actions with respect to the 1996 ESPP as are necessary to provide that (i) participation in the 1996 ESPP shall be limited to those employees who were participants on the date of this Agreement, (ii) such participants may not increase their payroll deduction elections or purchase elections from those in effect on the date of this Agreement, (iii) any purchase rights under the 1996 ESPP outstanding immediately before the Effective Time shall be used to purchase shares of Company Common Stock in accordance with the terms of the 1996 ESPP, and the shares of Company Common Stock purchased thereunder shall be canceled at the Effective Time and converted into the right to receive the Merger Consideration in accordance with Section 2.01(c), subject to applicable withholding pursuant to Section 2.02(h), (iv) there shall not be any additional accumulation periods under the 1996 ESPP (each, an “ESPP Accumulation Period”) commencing following the date of this Agreement under the 1996 ESPP and (v) the 1996 ESPP shall be suspended following the close of the current ESPP Accumulation Periods and shall terminate, either at such time or effective immediately before the Effective Time. (c) As soon as reasonably practicable following the date of this Agreement, the Company shall take all actions with respect to the UK ESPP as may be required to effect the following: (i) within 20 business days following the date of this Agreement, the UK ESPP and all partnership share agreements with respect thereto shall terminate, and following such termination, no participants in the UK ESPP shall have any rights with respect to the UK ESPP or any partnership share agreement, other than rights with respect to shares of Company Common Stock held in the trust pursuant to the UK ESPP (the “UK ESPP Trust”) and (ii) at the Effective Time, each share of Company Common Stock then held by the UK ESPP Trust shall be converted into the right to receive the Merger Consideration in accordance with Section 2.01(c), subject to any applicable withholding pursuant to Section 2.02(h). (d) The Company shall ensure that, as of the Effective Time, all rights to acquire shares of Company Common Stock, Company Stock Options, Company Restricted Stock, Company Stock-Based Awards or any other interests in respect of any capital stock (including any “phantom” stock, stock appreciation rights or performance units) of the Company ~~shall,~~ or the Surviving Corporation shall be converted into the cash consideration specified with respect thereto pursuant to ~~stock option or compensation plans or arrangements~~this Agreement and, ~~use its reasonable efforts to give effect to~~ upon the ~~transactions contemplated by this Section 2.04~~payment of such cash consideration, no such rights shall thereafter remain outstanding.

Appears in 1 contract

Samples: Merger Agreement (Serologicals Corp)

Equity-Based Awards. Upon the occurrence of a Change of Control of the Company, except to the extent a more favorable result for the Employee applies under an applicable incentive plan or award, the following will apply: (a) ~~Except~~ If the purchaser, successor or surviving entity (or parent thereof) (the “Surviving Entity”) in the Change of Control transaction so agrees, some or all outstanding equity-based awards then held by the Employee shall be assumed, or replaced with the same type of award with similar terms and conditions, by the Surviving Entity in the Change of Control transaction; provided that such assumption or replacement shall be permitted without the Employee’s consent only to the extent the assumed or replacement award, as ~~set forth in Section 2.04(a)~~ the case may be, relates to publicly traded or otherwise liquid equity securities after the consummation of the ~~Company Disclosure Letter,~~ Change of Control transaction and to the extent other appropriate adjustments in the terms ~~of each outstanding option to purchase shares of Company Stock under any equity compensation plan~~ and conditions of the ~~Company~~ award (including any performance goals) are made so that the Employee is not disadvantaged solely as a result of the Change of Control. If applicable, each award assumed by the Surviving Entity shall be appropriately adjusted, immediately after such Change of Control, to apply to the number and class of securities which would have been issuable to the Employee upon the consummation of such Change of Control had the award been exercised, vested or earned immediately prior to such Change of Control. Upon the Employee’s termination of employment by the Surviving Entity without Cause, or by the Employee for Good Reason, in either case within months following the Change of Control, all of the Employee’s awards that are in effect as of the date of such termination shall be vested in full or deemed earned in full (assuming the maximum performance goals provided under such award were met, if applicable) effective on the date of such termination. (b) To the extent the Surviving Entity in the Change of Control transaction does not assume the equity-based awards held by the Employee or issue replacement awards as provided in clause (a): (i) The Employee shall have the right at any time thereafter to exercise any stock options (“~~Company Stock Option~~Options”), ) or stock appreciation rights (“SARs”) held by the Employee at the time of the Change of Control in full whether or not ~~exercisable~~ the Option or ~~vested, shall be adjusted as necessary~~ SAR was theretofore exercisable; provided that the Company may elect to ~~provide that, at the Effective Time, each Company Stock Option~~ cancel all outstanding ~~immediately prior~~ Options or SARs in exchange for a cash payment equal to the ~~Effective Time~~ excess of the Change of Control Price over the exercise price of the shares of the Company’s common stock (“Shares”) subject to such Option or SAR upon the Change of Control (or for no cash payment if such excess is zero); (ii) Shares of time-based restricted stock (“Restricted Stock”) and restricted stock units (“Restricted Stock Units”) held by the Employee that are not then vested shall ~~be converted into an option~~ vest upon the date of the Change of Control and the Employee shall have the right, exercisable by written notice to the Company within sixty (~~each~~60) days after the Change of Control, to receive, in exchange for the surrender of such Restricted Stock, an amount of cash equal to the Change of Control Price (as defined below) of such Restricted Stock or Restricted Stock Units; provided that the Company may elect to cancel each outstanding Restricted Stock Unit in exchange for a cash payment equal to the Change of Control Price upon the Change of Control; (iii) The Employee shall have, with respect to each equity-based incentive award then held by the Employee subject to the achievement of a performance goal for which the performance period has not expired (“~~Adjusted Option~~Performance Award”) ~~to acquire~~shall have the right, ~~on the same terms and conditions as were applicable under such Company Stock Option immediately prior~~ exercisable by written notice to the ~~Effective Time~~Company within sixty (60) days after the Change of Control, to receive, in exchange for the ~~number~~ surrender of ~~shares~~ the Performance Award, an amount of ~~Parent Stock~~ cash equal to the product of (iA) the value of the Performance Award, assuming the greater of target or projected actual performance (based on the assumption that the applicable performance goals continue to be achieved at the same rate through the end of the performance period as they are at the time of the Change of Control), and (B) a fraction, the numerator of which is the number of ~~shares~~ whole months that have elapsed from the beginning of ~~Company Stock subject to such Company Stock Option immediately prior~~ the performance period to the ~~Effective Time multiplied by (ii)~~ date of the ~~Per Share Consideration, with any fractional shares rounded down to~~ Change of Control and the ~~next lower whole number~~ denominator of ~~shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to~~ which is the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole ~~cents. Notwithstanding~~ months in the ~~foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a~~performance period; (iv) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option The Employee shall be ~~subject~~ entitled to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Actreceive, with respect to any dividend equivalent units then held by the ~~shares of Parent Stock subject~~ Employee, a cash payment equal to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status value of the ~~prospectus contained therein) for so long~~ dividend equivalent units as ~~any~~ of the date of the Change of Control; provided that such ~~Company Stock Options remain outstanding. With respect~~ payment will be pro rated to ~~those individuals~~the extent, if ~~any~~at all, ~~who, subsequent to the Effective Time,~~ any related award is settled on a pro rata basis; and (v) The Employee will be ~~subject~~ entitled to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger. (d) Prior to the Effective Time, the Company shallreceive, with respect to ~~stock option or compensation plans or arrangements, use its reasonable efforts to give effect~~ each type of equity-based award not subject to the ~~transactions contemplated by this Section 2.04~~foregoing provisions, a cash payment based on the value of the award as of the date of the Change of Control.

Appears in 1 contract

Samples: Contingent Employment Agreement (Manitowoc Foodservice, Inc.)

Equity-Based Awards. (a) Except as ~~set forth~~ provided in Section ~~2.04(a) of the Company Disclosure Letter~~2.04(d), the terms of each outstanding compensatory option to purchase shares of Company Stock ~~under any equity compensation plan of the Company~~ (a ““ Company Stock ~~Option~~Option ”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be converted into an option (each, an ““ Adjusted ~~Option~~Option ”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, the number of shares of Parent Class A Common Stock equal to the product of (~~i) the~~ i)the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Class A Common Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by by (B) the ~~Per Share Consideration~~Exchange Ratio, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner reasonably acceptable to Parent and the Company that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein.409A. (b) ~~Each~~ Except as provided in Section 2.04(c) and Section 2.04(d), the terms of each outstanding restricted stock ~~award~~ unit or ~~performance share award outstanding immediately prior to the Effective Time under any equity compensation plan~~ deferred stock unit that, in either case, is settleable in shares of ~~the Company (each, a “~~Company Stock ~~Award~~(a “ Company RSU ”) ), whether or not vested, shall be adjusted as necessary to provide that, at the Effective Time, ~~such~~ each Company ~~Stock Award~~ RSU outstanding immediately prior to the Effective Time shall be converted into a ~~restricted stock award or performance share award~~RSU (each, an “ Adjusted RSU ”) to acquire, on the same terms and conditions as ~~applicable~~were applicable under such Company RSU immediately prior to the Effective Time, ~~relating to~~ the number of shares of Parent Class A Common Stock equal to the product of (i) the number of shares of Company Stock ~~relating~~ subject to such Company ~~Stock Award~~ RSU immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares~~. Except as set forth~~ . (c) At or promptly after the Effective Time, each outstanding Company RSU (each, a “ Director RSU ”) held by a non- employee director or former non-employee director of the Company (each, a “ Director ”), whether or not vested, shall be canceled, and the Company shall pay each such Director at or promptly after the Effective Time for each such Director RSU an amount in cash computed by first determining the Adjusted RSU that such Director would receive if the Director RSU held by such Director was converted into an Adjusted RSU pursuant to the methodology described in Section 2.04(b) (each, a “ Notional Adjusted RSU ”) and then multiplying (i) the closing sale price of a share of Parent Class A Common Stock on NASDAQ on the trading day immediately preceding the Effective Time by (ii) the number of shares of Parent Class A Common Stock with respect to the Notional Adjusted RSUs. (d) (i) At or promptly after the Effective Time, each outstanding Company Stock Option (each, a “ Former Employee Option ”) held by a former employee or individual contractor of the Company ~~Disclosure Letter~~(each, ~~each converted Company Stock Award~~ a “ Former Employee ”), whether or not exercisable or vested, shall be ~~subject~~ cancelled, and the Company shall pay each such Former Employee at or promptly after the Effective Time for each such Former Employee Option an amount in cash computed by first determining the Adjusted Option that such Former Employee would receive if the Former Employee Option held by such Former Employee was converted into an Adjusted Option pursuant to the ~~same terms~~methodology described in Section 2.04(a) (each, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targetsa “ Notional Adjusted Option ”) ~~shall be adjusted so that each Stock Vesting Target is equal to the quotient of:~~ and then multiplying (A) the excess of the closing sale price of a share of Parent Class A Common Stock ~~Vesting Target divided~~ on NASDAQ on the trading day immediately preceding the Effective Time over the per share exercise price of such Notional Adjusted Option, if any, by (B) the ~~Per Share Consideration, with any fractional cents rounded up to the next higher~~ number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of ~~Parent~~ Company Stock subject to such Notional Adjusted Option to the extent unexercised. For the avoidance of doubt, all Former Company ~~Stock~~ Options ~~and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective~~ outstanding as ~~soon as practicable following~~ of the Effective Time that have a per share exercise price equal to or exceeding the closing sale price of a share of Parent Class A Common Stock on NASDAQ on the trading day immediately preceding the Effective Time shall be immediately cancelled and ~~to maintain~~ forfeited without any liability on the ~~effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status~~ part of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the MergerSurviving Corporation or Parent. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Merger Agreement

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a)~~ As of the ~~Company Disclosure Letter~~Effective Time, ~~the terms of~~ each ~~outstanding~~ option to purchase shares of ~~Company~~ Piedmont Common Stock ~~under any equity compensation plan of the Company~~ (each, a “~~Company~~ Piedmont Stock Option”)) that is outstanding under the Piedmont Bancorp, ~~whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company~~ Inc. 2009 Stock Option ~~outstanding immediately prior to~~ Plan (the ~~Effective Time shall be converted into an option (each, an~~ “~~Adjusted Option~~Piedmont Stock Plan”) ~~to acquire, on the same terms and conditions as were applicable under such Company Stock Option~~ immediately prior to the Effective Time, shall, to the extent not vested, become fully vested and exercisable and shall be canceled without any action on the part of any holder or beneficiary thereof, in consideration for the right to receive a lump sum cash payment with respect thereto equal to the product of: (i) the excess, if any, of the product of (A) the Average United Closing Price multiplied by (B) the Exchange Ratio (subject to any adjustments as provided in Section 9.01(g), including accounting for any Additional Cash Payment Per Share, as applicable), over the applicable exercise price of such Piedmont Stock Option; and (ii) the number of shares of ~~Parent~~ Piedmont Common Stock subject to such Piedmont Stock Option, less any required withholding taxes. (b) As of the Effective Time, each warrant to purchase shares of Piedmont Common Stock (each, a “Piedmont Stock Warrant”) that is outstanding under any Piedmont Stock Plan or individual award agreement immediately prior to the Effective Time, shall, to the extent not vested, become fully vested and exercisable and shall be canceled without any action on the part of any holder or beneficiary thereof, and in consideration therefor, at the election of the holder, will either (i) receive a lump sum cash payment in consideration equal to the product of: (A) the excess, if any, of the product of (1) the Average United Closing Price multiplied by (2) the Exchange Ratio (subject to any adjustments as provided in Section 9.01(g), including accounting for any Additional Cash Payment Per Share, as applicable), over the applicable exercise price of such Piedmont Stock Warrant; and (B) the number of shares of Piedmont Common Stock subject to such Piedmont Stock Warrant, or (ii) convert into a warrant to purchase shares of United Common Stock, with the number of shares of United Common Stock equal to the product of (iA) the total number of shares of ~~Company~~ Piedmont Common Stock subject to ~~such Company~~ the applicable Piedmont Stock ~~Option~~ Warrant immediately prior to the Effective Time multiplied by (iiB) the ~~Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock~~ Exchange Ratio (subject to any ~~such Adjusted Option will be an amount (~~adjustments as provided in Section 9.01(g), including accounting for any Additional Cash Payment Per Share, as applicable, and rounded up or down, if necessary, to the nearest whole ~~cent)~~ share of United Common Stock), and the per-share exercise price under each such Piedmont Stock Warrant shall be adjusted to equal to the quotient of (AX) the exercise price per share of ~~Company~~ such Piedmont Stock ~~subject to~~ Warrant at which such ~~Company~~ Piedmont Stock ~~Option~~ Warrant was exercisable immediately prior to the Effective Time divided by (BY) the Exchange Ratio (subject to any adjustments as provided in Section 9.01(g), including accounting for any Additional Cash Payment Per ~~Share Consideration~~Share, ~~with any fractional cents~~ as applicable, and rounded up or down to the ~~next higher number of~~ nearest whole ~~cents. Notwithstanding the foregoing~~cent), in either event, if ~~the conversion~~ necessary less any required withholding taxes. Any election by a holder of a ~~Company~~ Piedmont Stock ~~Option~~ Warrant must be made at least five days prior to the Effective Time in accordance with the ~~preceding provisions of this Section 2.04(a) would cause the related Adjusted Option~~ procedures implemented by United and Piedmont with respect to ~~be treated as the grant of new stock right for purposes of Section 409A of the Code,~~ such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated hereinelection. (bc) ~~Each~~ At the Effective Time, each restricted stock grant, restricted stock unit grant and any other award in respect of a share of Piedmont Common Stock subject to vesting, repurchase or ~~performance share~~ other lapse restriction under a Piedmont Stock Plan or individual award agreement that is outstanding immediately prior to the Effective Time ~~under any equity compensation plan of the Company~~ other than a Piedmont Stock Option or a Piedmont Stock Warrant (each, a “~~Company~~ Piedmont Stock Award”) shall become fully vested, be ~~adjusted as necessary~~ cancelled and converted automatically into the right to ~~provide that, at~~ receive the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of Merger Consideration (~~i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration,~~ with any fractional ~~shares rounded down~~ share being entitled to ~~the next lower whole number of shares. Except~~ receive cash in lieu thereof as ~~set forth~~ provided in Section ~~2.04(b~~4.03) in respect of each share of Piedmont Common Stock underlying such Piedmont Stock Award. United shall issue the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth consideration described in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable 4.06(c) less applicable tax withholdings within five business days following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the MergerDate. (d) Prior to the Effective Time, Piedmont shall provide such notice, if any, to the ~~Company shall~~extent required under the terms of the applicable Piedmont Stock Plan, ~~with respect to stock option~~ obtain any necessary consents, adopt applicable resolutions, amend the terms of the Piedmont Stock Plan or ~~compensation plans or arrangements~~any outstanding awards, ~~use its reasonable efforts to~~ and take all other appropriate actions to: (i) give effect to the transactions contemplated by herein; (ii) terminate the Piedmont Stock Plan as of the Effective Time; and (iii) ensure that after the Effective Time, neither any holder of Piedmont Stock Awards, any beneficiary thereof, nor any other participant in any Piedmont Stock Plan shall have any right thereunder to acquire any securities of Piedmont or to receive any payment or benefit with respect to any award previously granted under the Piedmont Stock Plan, except as provided in this Section ~~2.04~~4.06. As of the Effective Time, the Piedmont Stock Plan shall be terminated and no further awards or other rights shall be granted thereunder. (e) All payments pursuant to this Section 4.06 shall be made at or as soon as practicable following the Effective Time, in accordance with Piedmont’s ordinary payroll practices and shall be subject to any applicable withholding (other than those contemplated in subsection (b)); provided, however, that to the extent any payments cannot be paid during such period without causing the recipient to incur a penalty tax under Section 409A of the Code, then such payment shall be distributed in accordance with Section 409A of the Code and applicable guidance thereunder. In connection with the consummation of the Merger, United shall make available to Piedmont cash in an amount necessary to fulfill the obligations set forth in this Section 4.06. (f) Notwithstanding any provision contained herein to the contrary, each of Piedmont and the Surviving Entity shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement such amounts as it is required to deduct and withhold under the Code or any other applicable state, local, or foreign tax law. To the extent that such amounts are withheld, they shall be remitted by Piedmont or the Surviving Entity to the appropriate governmental entity and shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made. (g) United and Piedmont agree to adopt any resolutions and take all steps necessary (including obtaining any participant consents or providing any required or advisable notices to any participant) to effect the provisions of this Section 4.06.

Appears in 1 contract

Samples: Merger Agreement (United Bankshares Inc/Wv)

Appears in 1 contract

Samples: Merger Agreement (Cascade Corp)

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a) of the Company Disclosure Letter, the~~ The terms of each ~~outstanding option to purchase shares of Company Stock under any equity compensation plan of the Company (a “Company Stock~~ Option”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each ~~Company Stock~~ Option outstanding immediately prior to the Effective Time shall be ~~converted into~~ replaced by and substituted for an option (each, an “Adjusted MM Option”) to acquire, on the same terms and conditions as were applicable under such ~~Company Stock~~ Option immediately prior to the Effective Time, the number of shares of ~~Parent~~ Surviving Corporation Common Stock equal to the product of (i) the number of shares of Company Common Stock subject to such ~~Company Stock~~ Option immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of ~~Parent~~ Surviving Corporation Common Stock subject to any such Adjusted MM Option will be an amount ~~(rounded up to the nearest whole cent)~~ equal to the quotient of (A) the exercise price per share of Company Common Stock subject to such ~~Company Stock~~ Option immediately prior to the Effective Time divided by (B) the ~~Per Share Consideration~~Exchange Ratio, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of ~~a Company Stock~~ an Option in accordance with the preceding provisions of this Section ~~2.04(a~~5.12(a) would cause the related Adjusted MM Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such ~~Company Stock~~ Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner reasonably acceptable to the Surviving Corporation and the Company that would not cause the related Adjusted MM Option to be treated as the grant of new stock right for purposes of Section 409A. ~~Except as set forth in Section 2.04(a)~~ For avoidance of ~~the Company Disclosure Letter~~doubt, ~~no Company Stock~~ each Adjusted MM Option shall be ~~subject~~ vested to ~~accelerated vesting upon~~ the same extent to which the Option for which it was substituted was vested before or ~~in connection with~~ as of the ~~transactions contemplated herein~~Effective Time. (b) ~~Each~~ The terms of each restricted stock ~~award or performance share award~~ unit that is settleable in shares of Company Common Stock (a “Company RSU”) that is outstanding and unvested immediately prior to the Effective Time ~~under any equity compensation plan~~ and does not fully vest by its terms as of the Effective Time (an “Unvested Company ~~(each, a “Company Stock Award~~RSU”) shall be adjusted as necessary to provide that, at the Effective Time, ~~such~~ each Unvested Company ~~Stock Award~~ RSU outstanding immediately prior to the Effective Time shall be ~~converted into~~ replaced by and substituted for a restricted stock ~~award or performance share award~~unit (each, an “Adjusted MM RSU”) to acquire, on the same terms and conditions as ~~applicable~~were applicable under such Unvested Company RSU immediately prior to the Effective Time, ~~relating to~~ the number of shares of ~~Parent~~ Surviving Corporation Common Stock equal to the product of (i) the number of shares of Company Common Stock ~~relating~~ subject to such Unvested Company ~~Stock Award~~ RSU immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares. ~~Except as set forth in Section 2.04(b)~~ For avoidance of ~~the Company Disclosure Letter~~doubt, each ~~converted Company Stock Award~~ Adjusted MM RSU shall be ~~subject~~ vested to the same ~~terms~~extent to which the Unvested Company RSU for which it was substituted was vested before or as of the Effective Time. (c) To the extent permitted under Treas. Reg. Section 1.409A-3(j)(4) (if applicable), ~~conditions~~ the holder of each Company RSU that is outstanding immediately prior to the Effective Time and ~~restrictions~~ becomes vested by its terms before or as ~~were applicable under~~ of the Effective Time (it being understood that any such ~~Company Stock Award~~ award that vests pursuant to its terms before or as of the Effective Time shall, for purposes of this Agreement, be deemed to be vested immediately prior to the Effective Time~~. Notwithstanding the foregoing, any~~ ) (a “Vested Company ~~Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets~~RSU”) shall receive the number of shares of Company Common Stock subject to such Vested Company RSU in accordance with the terms and conditions of such Vested Company RSU, including any terms and conditions regarding any Taxes required by applicable Law to be ~~adjusted so that each Stock Vesting Target is equal~~ withheld, if any, with respect to the ~~quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number~~ vesting of ~~whole cents. Except as set forth in Section 2.04(b) of the~~ such Vested Company ~~Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein~~RSU. (cd) ~~Parent shall~~ The parties covenant to cause the Surviving Corporation to (x) take such actions as are necessary ~~for~~ to establish a new omnibus equity award plan following the ~~assumption of the Company Stock Options pursuant~~ Effective Time and to ~~this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall~~ prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the ~~1933~~ Securities Act, with respect to the awards and shares of ~~Parent~~ Surviving Corporation Common Stock subject to the ~~Company Stock~~ Adjusted MM Options and Adjusted MM RSUs and other awards issued under such plan and, where applicable, ~~shall~~ (y) use its commercially reasonable ~~best~~ efforts to have such registration statement declared effective as soon as practicable following the Effective Time and (z) use its commercially reasonable efforts to maintain the effectiveness of such registration statement covering such ~~Company Stock~~ -43- Adjusted MM Options and Adjusted MM RSUs (and to maintain the current status of the prospectus contained therein) for so long as any ~~such Company Stock Options remain~~ Adjusted MM Option or any Adjusted MM RSU remains outstanding. . (e) With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the ~~1934~~ Exchange Act, where applicable, ~~Parent~~ the Surviving Corporation shall administer any ~~equity compensation plan of the Company~~ Adjusted MM Option and any Adjusted MM RSU assumed pursuant to this Section ~~2.04~~ 5.12 in a manner that complies with Rule 16b-3 promulgated under the ~~1934~~ Exchange Act to the extent such ~~equity compensation plan of the Company~~ Adjusted MM Option or such Adjusted MM RSU complied with such rule prior to the Merger. (df) ~~Prior to~~ The Company and MM acknowledge and agree that the ~~Effective Time~~substitution of Options and Unvested Company RSUs for Adjusted MM Options and Adjusted MM RSUs, respectively, as provided in this Section 5.12 shall constitute the substitution of “Plan Awards” (as defined in the Company ~~shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to~~ Option Plan) for equivalent awards of the ~~transactions contemplated by this Section 2.04~~Surviving Corporation for purposes of the Company Option Plan and such Plan Awards.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Cover All Technologies Inc)

Equity-Based Awards. ~~(a) Except as set forth in Section 2.04(a) of~~ Prior to the ~~Company Disclosure Letter~~Effective Time, the ~~terms~~ Board of ~~each outstanding option to purchase shares of Company Stock under any equity compensation plan~~ Directors of the Company (or, if appropriate, any committee thereof administering the Company Stock Option Plans) shall adopt such resolutions and take such other actions as may be required to provide that: (a) each option to purchase Company Common Shares other than rights under the Company ESPP (each, a “Company Stock Option”~~), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option~~ ) outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, whether vested or unvested, shall, as of the ~~number~~ Effective Time, be canceled and the holder thereof shall then become entitled to receive solely, in full satisfaction of ~~shares~~ the rights of ~~Parent Stock~~ such holder with respect thereto, a lump-sum cash payment, without interest, equal to the product of (i) the number of ~~shares of~~ Company ~~Stock subject to~~ Common Shares for which such Company Stock Option ~~immediately prior to the Effective Time multiplied by~~ has not then been exercised and (ii) the ~~Per Share Consideration~~excess, ~~with any fractional shares rounded down to~~ if any, of the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) Merger Consideration over the exercise price per share of such Company Stock ~~subject to~~ Option; provided, that any such Company Stock Option ~~immediately~~ with an exercise price per Company Common Share that is equal to or greater than the Merger Consideration shall be canceled for no consideration; (b) each restricted stock unit (each, a “Company RSU”) granted prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner date hereof that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award is outstanding immediately prior to the Effective ~~Time under any equity compensation plan~~ Time, whether vested or unvested, shall, as of ~~the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at~~ the Effective Time, be canceled and the holder thereof shall then become entitled to receive solely, in full satisfaction of the rights of such ~~Company Stock Award shall be converted into~~ holder with respect thereto, a ~~restricted stock award or performance share award~~lump-sum cash payment, ~~as applicable~~without interest, ~~relating to the number of shares of Parent Stock~~ equal to the product of (i) the number of ~~shares of~~ Company ~~Stock relating~~ Common Shares subject to such Company ~~Stock Award~~ RSU as of immediately prior to the Effective Time ~~multiplied by~~ and (ii) the ~~Per Share~~ Merger Consideration; and (c) each Company RSU granted following the date hereof that is outstanding immediately prior to the Effective Time shall, as of the Effective Time, be converted into an unvested award representing the opportunity to receive cash payments, without interest, in an aggregate amount equal to the product of (i) the number of Company Common Shares subject to such Company RSU as of immediately prior to the Effective Time and (ii) the Merger Consideration, with ~~any fractional shares rounded down~~ such aggregate amount being payable on the vesting dates applicable to such Company RSU as of immediately prior to the ~~next lower whole~~ Effective Time based proportionately on the number of ~~shares. Except as set forth in Section 2.04(b) of the~~ Company ~~Disclosure Letter~~Common Shares that would have vested on each such vesting date, ~~each converted Company Stock Award~~ and which award shall continue to vest and shall otherwise be subject to the same ~~terms,~~ terms and conditions ~~and restrictions~~ as were applicable ~~under~~ to such Company ~~Stock Award~~ RSU as of immediately prior to the Effective ~~Time. Notwithstanding the foregoing,~~ Time (including any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject terms and conditions related to accelerated vesting upon or a termination of the holder’s employment in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, ~~will be subject~~ but excluding any terms and conditions related to ~~the reporting requirements under Section 16(a)~~ accelerated vesting solely as a result of ~~the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04~~ a change in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.control). 7

Appears in 1 contract

Samples: Merger Agreement

Equity-Based Awards. Upon the occurrence of a Change of Control of the Company, except to the extent a more favorable result for the Employee applies under an applicable incentive plan or award, the following will apply: (a) ~~Except~~ If the purchaser, successor or surviving entity (or parent thereof) (the “Surviving Entity”) in the Change of Control transaction so agrees, some or all outstanding equity-based awards then held by the Employee shall be assumed, or replaced with the same type of award with similar terms and conditions, by the Surviving Entity in the Change of Control transaction; provided that such assumption or replacement shall be permitted without the Employee’s consent only to the extent the assumed or replacement award, as ~~set forth in Section 2.04(a)~~ the case may be, relates to publicly traded or otherwise liquid equity securities after the consummation of the ~~Company Disclosure Letter,~~ Change of Control transaction and to the extent other appropriate adjustments in the terms ~~of each outstanding option to purchase shares of Company Stock under any equity compensation plan~~ and conditions of the ~~Company~~ award (including any performance goals) are made so that the Employee is not disadvantaged solely as a result of the Change of Control. If applicable, each award assumed by the Surviving Entity shall be appropriately adjusted, immediately after such Change of Control, to apply to the number and class of securities which would have been issuable to the Employee upon the consummation of such Change of Control had the award been exercised, vested or earned immediately prior to such Change of Control. Upon the Employee’s termination of employment by the Surviving Entity without Cause, or by the Employee for Good Reason, in either case within thirty-six (36) months following the Change of Control, all of the Employee’s awards that are in effect as of the date of such termination shall be vested in full or deemed earned in full (assuming the maximum performance goals provided under such award were met, if applicable) effective on the date of such termination. (b) To the extent the Surviving Entity in the Change of Control transaction does not assume the equity-based awards held by the Employee or issue replacement awards as provided in clause (a): (i) The Employee shall have the right at any time thereafter to exercise any stock options (“~~Company Stock Option~~Options”), ) or stock appreciation rights (“SARs”) held by the Employee at the time of the Change of Control in full whether or not ~~exercisable~~ the Option or ~~vested, shall be adjusted as necessary~~ SAR was theretofore exercisable; provided that the Company may elect to ~~provide that, at the Effective Time, each Company Stock Option~~ cancel all outstanding ~~immediately prior~~ Options or SARs in exchange for a cash payment equal to the ~~Effective Time~~ excess of the Change of Control Price over the exercise price of the shares of the Company’s common stock (“Shares”)_subject to such Option or SAR upon the Change of Control (or for no cash payment if such excess is zero); (ii) Shares of time-based restricted stock (“Restricted Stock”) and restricted stock units (“Restricted Stock Units”) held by the Employee that are not then vested shall ~~be converted into an option~~ vest upon the date of the Change of Control and the Employee shall have the right, exercisable by written notice to the Company within sixty (~~each~~60) days after the Change of Control, to receive, in exchange for the surrender of such Restricted Stock, an amount of cash equal to the Change of Control Price (as defined below) of such Restricted Stock or Restricted Stock Units; provided that the Company may elect to cancel each outstanding Restricted Stock Unit in exchange for a cash payment equal to the Change of Control Price upon the Change of Control; (iii) The Employee shall have, with respect to each equity-based incentive award then held by the Employee subject to the achievement of a performance goal for which the performance period has not expired (“~~Adjusted Option~~Performance Award”) ~~to acquire~~shall have the right, ~~on the same terms and conditions as were applicable under such Company Stock Option immediately prior~~ exercisable by written notice to the ~~Effective Time~~Company within sixty (60) days after the Change of Control, to receive, in exchange for the ~~number~~ surrender of ~~shares~~ the Performance Award, an amount of ~~Parent Stock~~ cash equal to the product of (iA) the value of the Performance Award, assuming the greater of target or projected actual performance (based on the assumption that the applicable performance goals continue to be achieved at the same rate through the end of the performance period as they are at the time of the Change of Control), and (B) a fraction, the numerator of which is the number of ~~shares~~ whole months that have elapsed from the beginning of ~~Company Stock subject to such Company Stock Option immediately prior~~ the performance period to the ~~Effective Time multiplied by (ii)~~ date of the ~~Per Share Consideration, with any fractional shares rounded down to~~ Change of Control and the ~~next lower whole number~~ denominator of ~~shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to~~ which is the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole ~~cents. Notwithstanding~~ months in the ~~foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a~~performance period; (iv) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option The Employee shall be ~~subject~~ entitled to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Actreceive, with respect to any dividend equivalent units then held by the ~~shares of Parent Stock subject~~ Employee, a cash payment equal to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status value of the ~~prospectus contained therein) for so long~~ dividend equivalent units as ~~any~~ of the date of the Change of Control; provided that such ~~Company Stock Options remain outstanding. With respect~~ payment will be pro rated to ~~those individuals~~the extent, if ~~any~~at all, ~~who, subsequent to the Effective Time,~~ any related award is settled on a pro rata basis; and (v) The Employee will be ~~subject~~ entitled to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger. (d) Prior to the Effective Time, the Company shallreceive, with respect to ~~stock option or compensation plans or arrangements, use its reasonable efforts to give effect~~ each type of equity-based award not subject to the ~~transactions contemplated by this Section 2.04~~foregoing provisions, a cash payment based on the value of the award as of the date of the Change of Control.

Appears in 1 contract

Samples: Contingent Employment Agreement (Manitowoc Co Inc)

Equity-Based Awards. ~~(a) Except as set forth in Section 2.04(a) of~~ Prior to the ~~Company Disclosure Letter~~Effective Time, the ~~terms~~ Board of ~~each outstanding option to purchase shares of Company Stock under any equity compensation plan~~ Directors of the Company (~~a “~~or, if appropriate, any committee thereof administering the Company Stock ~~Option”), whether or~~ Plan) shall adopt such resolutions and take such other lawful actions that do not ~~exercisable or vested, shall~~ involve the payment of any consideration as may be ~~adjusted as necessary~~ required to provide that, at immediately prior to the Effective Time: (i) by virtue of the Merger and without any action on the part of the holder thereof, each Company Stock Option, whether vested or unvested, that is outstanding and unexercised immediately prior to the Effective Time shall be cancelled, extinguished and of no further force or effect and shall be automatically converted into the right to receive, as the sole consideration for each share of Company Common Stock underlying such Company Stock Option, an amount in cash, without interest and subject to deduction for any required withholding under applicable Law, from Parent or the Surviving Corporation equal to the excess of (A) the Merger Consideration over (B) the per share exercise price that would be due in cash upon exercise of such Company Stock Option (the “Stock Option Consideration”); and (ii) by virtue of the Merger and without any action on the part of the holder thereof, (A) each Company Restricted Stock Unit Award that is outstanding immediately prior to the Effective Time, whether vested, unvested or otherwise subject to forfeiture, shall be cancelled, extinguished and of no further force or effect and shall be automatically converted into the right to receive, as the sole consideration for each share of Company Common Stock underlying such Company Restricted Stock Unit Award, an amount in cash, without interest and subject to deduction for any required withholding under applicable Law, from Parent or the Surviving Corporation equal to the Merger Consideration (the “Restricted Stock Unit Consideration”) and (B) each Company ~~Stock Option~~ Restricted Share that is outstanding immediately prior to the Effective Time shall automatically become fully vested (and all restrictions with respect thereto shall lapse) and thereafter shall terminate and be automatically converted into ~~an option (each~~the right to receive, as the sole consideration in respect of such terminated Company Restricted Share, an ~~“Adjusted Option”)~~ amount in cash, without interest and subject to ~~acquire~~deduction for any required withholding under applicable Law, on from Parent or the ~~same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, the number of shares of Parent Stock~~ Surviving Corporation equal to the ~~product of (i) the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the Per Share~~ Merger Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein.; and (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (ciii) Parent and its Affiliates shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, have no liability with respect to the ~~shares of Parent~~ Company Stock ~~subject~~ Options, Company Restricted Stock Unit Awards or Company Restricted Shares, other than for payment as set forth above in clause (i), as it relates to the Company Stock ~~Options and~~Options, ~~where applicable~~and clause (ii), ~~shall use its reasonable best efforts to have such registration statement declared effective~~ as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent it relates to the ~~Effective Time~~Company Restricted Stock Unit Awards and Company Restricted Shares, ~~will be subject to the reporting requirements under Section 16(a)~~ of ~~the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to~~ this Section ~~2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger~~2.03. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Merger Agreement (Soliton, Inc.)

Equity-Based Awards. (a) Except as ~~set forth~~ provided in Section ~~2.04(a) of the Company Disclosure Letter~~2.04(d), the terms of each outstanding compensatory option to purchase shares of Company Stock ~~under any equity compensation plan of the Company~~ (a “Company Stock Option”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, the number of shares of Parent Class A Common Stock equal to the product of (~~i) the~~ i)the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Class A Common Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the ~~Per Share Consideration~~Exchange Ratio, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner reasonably acceptable to Parent and the Company that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein.409A. (b) ~~Each~~ Except as provided in Section 2.04(c) and Section 2.04(d), the terms of each outstanding restricted stock ~~award~~ unit or ~~performance share award outstanding immediately prior to the Effective Time under any equity compensation plan~~ deferred stock unit that, in either case, is settleable in shares of ~~the~~ Company Stock (~~each,~~ a “Company ~~Stock Award~~RSU”) ), whether or not vested, shall be adjusted as necessary to provide that, at the Effective Time, ~~such~~ each Company ~~Stock Award~~ RSU outstanding immediately prior to the Effective Time shall be converted into a ~~restricted stock award or performance share award~~RSU (each, an “Adjusted RSU”) to acquire, on the same terms and conditions as ~~applicable~~were applicable under such Company RSU immediately prior to the Effective Time, ~~relating to~~ the number of shares of Parent Class A Common Stock equal to the product of (i) the number of shares of Company Stock ~~relating~~ subject to such Company ~~Stock Award~~ RSU immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares~~. Except as set forth~~ . (c) At or promptly after the Effective Time, each outstanding Company RSU (each, a “Director RSU”) held by a non-employee director or former non-employee director of the Company (each, a “Director”), whether or not vested, shall be canceled, and the Company shall pay each such Director at or promptly after the Effective Time for each such Director RSU an amount in cash computed by first determining the Adjusted RSU that such Director would receive if the Director RSU held by such Director was converted into an Adjusted RSU pursuant to the methodology described in Section 2.04(b) (each, a “Notional Adjusted RSU”) and then multiplying (i) the closing sale price of a share of Parent Class A Common Stock on NASDAQ on the trading day immediately preceding the Effective Time by (ii) the number of shares of Parent Class A Common Stock with respect to the Notional Adjusted RSUs. (d) (i) At or promptly after the Effective Time, each outstanding Company Stock Option (each, a “Former Employee Option”) held by a former employee or individual contractor of the Company ~~Disclosure Letter~~(each, ~~each converted Company Stock Award~~ a “Former Employee”), whether or not exercisable or vested, shall be ~~subject~~ cancelled, and the Company shall pay each such Former Employee at or promptly after the Effective Time for each such Former Employee Option an amount in cash computed by first determining the Adjusted Option that such Former Employee would receive if the Former Employee Option held by such Former Employee was converted into an Adjusted Option pursuant to the ~~same terms~~methodology described in Section 2.04(a) (each, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (a “~~Stock Vesting Targets~~Notional Adjusted Option”) ~~shall be adjusted so that each Stock Vesting Target is equal to the quotient of:~~ and then multiplying (A) the excess of the closing sale price of a share of Parent Class A Common Stock ~~Vesting Target divided~~ on NASDAQ on the trading day immediately preceding the Effective Time over the per share exercise price of such Notional Adjusted Option, if any, by (B) the ~~Per Share Consideration, with any fractional cents rounded up~~ number of shares of Company Stock subject to such Notional Adjusted Option to the ~~next higher number~~ extent unexercised. For the avoidance of ~~whole cents. Except~~ doubt, all Former Company Options outstanding as ~~set forth in Section 2.04(b)~~ of the ~~Company Disclosure Letter, no Company~~ Effective Time that have a per share exercise price equal to or exceeding the closing sale price of a share of Parent Class A Common Stock ~~Award~~ on NASDAQ on the trading day immediately preceding the Effective Time shall be ~~subject to accelerated vesting upon~~ immediately cancelled and forfeited without any liability on the part of the Surviving Corporation or ~~in connection with the transactions contemplated herein~~Parent. (cii) At or promptly after the Effective Time, each outstanding Company RSU (each, a “Former Employee RSU”) held by a Former Employee, whether or not vested, shall be canceled, and the Company shall pay each such Former Employee at or promptly after the Effective Time for each such Former Employee RSU an amount in cash computed by first determining the number of Notional Adjusted RSUs held by such Former Employee and then multiplying (A) the closing sale price of a share of Parent Class A Common Stock on NASDAQ on the trading day immediately preceding the Effective Time by (B) the number of shares of Parent Class A Common Stock with respect to the Notional Adjusted RSUs. (e) Parent shall take such actions as are necessary for the assumption of the Company Stock Options and Company RSUs pursuant to ~~this Section 2.04~~Sections 2.04(a) and (b), including the reservation, issuance and listing of Parent Class A Common Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Class A Common Stock subject to the Company Stock Options and Company RSUs to be assumed by Parent and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options and Company RSUs (and to maintain the current status of the prospectus contained therein) for so long as any ~~such~~ Company Stock ~~Options remain~~ Option or any Company RSU remains outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any ~~equity compensation plan of the~~ Company Stock Option and any Company RSU assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such ~~equity compensation plan of the~~ Company Stock Option or such Company RSU complied with such rule prior to the Merger. (df) Prior to the Effective Time, the Company ~~shall,~~ shall take any actions with respect to ~~stock option or~~ equity compensation plans or ~~arrangements, use its reasonable efforts~~ arrangements that are necessary to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Merger Agreement (Time Warner Cable Inc.)

Equity-Based Awards. (a) ~~Except~~ In respect of any performance-vesting stock unit awards that were granted to any Transferred Employee under the Seller’s Long-Term Incentive Plan in respect of fiscal year 2017 and fiscal year 2018 that are outstanding as ~~set forth in Section 2.04(a)~~ of the Company Disclosure Letter, the terms of each outstanding option to purchase shares of Company Stock under any equity compensation plan of the Company (a “Company Stock Option”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the ~~Effective Time shall be converted into an option~~ Closing (each, a “Seller PSU Award”), Seller shall ensure that the terms of the Seller PSU Awards provide for pro-rated vesting of such awards upon the Closing, and Seller shall be solely responsible for payment of the resulting vested portion of such awards. Buyer shall, as soon as practicable following the Closing Date, grant to each holder of a Seller PSU Award, an ~~“Adjusted Option”)~~ equity-based, time-vesting incentive award in respect of Buyer shares of common stock with an aggregate value equal to ~~acquire~~the PSU Replacement Incentive Award Value (as defined below), which equity award will vest on the ~~same terms and conditions as were applicable under~~ vesting date that applied to such ~~Company Stock Option immediately prior to~~ Seller PSU Award. For purposes of the ~~Effective Time~~foregoing, the ~~number of shares of Parent Stock~~ PSU Replacement Incentive Award Value will equal to the product of (ix) the number of shares of ~~Company Stock subject~~ Seller common stock underlying the Seller PSU Award determined based on actual performance through the Closing Date and pro-rated to ~~such Company Stock Option immediately prior to~~ reflect the ~~Effective Time multiplied by~~ portion of the original vesting period that has not yet lapsed as of the Closing Date and (iiy) the ~~Per Share Consideration, with any fractional shares rounded down to the next lower whole number~~ closing price of ~~shares. The exercise price per~~ a share of ~~Parent~~ Seller common stock on the Business Day immediately preceding the Closing Date as reported on the New York Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated hereinExchange. (b) ~~Each~~ In respect of any time-vesting restricted stock ~~award or performance share award~~ unit awards that were granted to any Transferred Employee under the Seller’s Long-Term Incentive Plan for any fiscal year other than those made with respect to fiscal year 2018 that are outstanding as of immediately prior to the ~~Effective Time under any equity compensation plan of the Company~~ Closing (each, a “~~Company Stock~~ Seller RSU Award”) ), Seller shall ~~be adjusted as necessary to~~ ensure that the terms of such awards provide that, at the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to for accelerated vesting upon ~~or in connection with~~ the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act Closing to the extent that such ~~equity compensation plan of~~ awards would have vested in the Company complied with such rule prior to the Merger. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.ordinary course through November

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)

Equity-Based Awards. (a) ~~Except~~ Each award of restricted share units that corresponds to Shares and vests solely based on the passage of time (each, a “Company RSU Award”), whether vested or unvested, that is outstanding immediately prior to the Effective Time, shall, as ~~set forth~~ of the Effective Time, shall be assumed by Parent and converted into a restricted unit award with respect to Common Units (each an “Assumed RSU Award”). Each Assumed RSU Award shall be converted into a restricted unit award to receive a number of Common Units equal to the product obtained by multiplying (x) the number of Shares subject to such Company RSU Award immediately prior to the Effective Time by (y) a ratio equal to (A)(1) the Per Share Cash Amount divided by (2) the closing price of one Common Unit on the NYSE on the day prior to the Closing Date plus (B) the Exchange Ratio (such ratio, the “Equity Exchange Ratio”), rounded up or down to the nearest whole Common Unit. Each Assumed RSU Award shall (i) otherwise be subject to the same terms and conditions (including as to vesting and issuance) as were applicable to the Company RSU Award immediately prior to the Effective Time and (ii) fully accelerate upon a termination without “cause,” for “good reason” or a result of the holder’s death or disability (as such terms are defined in Section ~~2.04(a~~5.6(a) of the Company Disclosure ~~Letter~~Schedule). (b) Each award of performance share units that corresponds to Shares (each, ~~the terms of each outstanding option to purchase shares of Company Stock under any equity compensation plan of the Company (~~a “Company ~~Stock Option~~PSU Award”), ~~whether or not exercisable or vested, shall be adjusted~~ that is outstanding and vested as ~~necessary to provide that, at~~ of the Effective Time, ~~each~~ shall, as of the Effective Time, be cancelled in exchange for the payment of the Merger Consideration with respect to the number of Shares equal to the total number of Shares with respect to which such Company PSU Award has vested prior to the Effective Time. The Surviving Corporation shall issue to the holders of Company PSU Awards the Merger Consideration in respect of the applicable number of Shares described in the immediately preceding sentence, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the making of such payment, within five business days following the Effective Time. Each Company PSU Award that is outstanding and unvested as of the Effective Time shall automatically, and without any required action of the holder thereof, be cancelled without consideration. (c) Each award of restricted Company Common Stock ~~Option~~ that is outstanding immediately prior to the Effective Time ~~shall be converted into an option~~ (~~each, an~~ the “~~Adjusted Option”) to acquire, on~~ Company Restricted Shares,” together with the ~~same terms~~ Company RSU Awards and ~~conditions as were applicable under such~~ the Company ~~Stock Option immediately prior to the Effective Time~~A-41 PSU Awards, the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company ~~Stock Award~~Equity Awards”) shall be ~~adjusted as necessary~~ assumed by Parent and converted into a restricted unit award with respect to ~~provide that, at the Effective Time, such Company~~ Common Units (each an “Assumed Restricted Stock Award”). Each Assumed Restricted Stock Award shall be converted into a restricted ~~stock~~ unit award ~~or performance share award, as applicable, relating~~ representing a contractual right upon vesting to ~~the~~ receive a number of ~~shares of Parent Stock~~ Common Units equal to the product of obtained by multiplying (ix) the number of ~~shares of Company Stock relating~~ Shares subject to such ~~Company~~ Assumed Restricted Stock Award immediately prior to the Effective Time ~~multiplied~~ by (iiy) the ~~Per Share Consideration~~Equity Exchange Ratio, ~~with any fractional shares~~ rounded up or down to the ~~next lower~~ nearest whole ~~number of shares~~Common Unit. ~~Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company~~ Each Assumed Restricted Stock Award shall otherwise be subject to the same ~~terms,~~ terms and conditions (including as to vesting and ~~restrictions~~ issuance) as were applicable ~~under such~~ to the Company ~~Stock Award~~ Restricted Shares immediately prior to the Effective Time. ~~Notwithstanding the foregoing, any Company~~ Each Assumed Restricted Stock Award ~~vesting condition contingent on the achievement of specified Company stock targets~~ shall (~~“Stock Vesting Targets”~~i) ~~shall~~ otherwise be ~~adjusted so that each Stock Vesting Target is equal~~ subject to the ~~quotient of:~~ same terms and conditions (Aincluding as to vesting and issuance) ~~the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up~~ as were applicable to the ~~next higher number~~ Company Restricted Shares immediately prior to the Effective Time, (ii) have distribution equivalent rights, and (iii) fully accelerate upon a termination without “cause,” for “good reason” or a result of ~~whole cents. Except~~ the holder’s death or disability (as ~~set forth~~ such terms are defined in Section ~~2.04(b~~5.6(a) of the Company Disclosure ~~Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein~~Schedule). (cd) ~~Parent~~ Notwithstanding the foregoing, each Company Restricted Share and Company RSU Award that is outstanding immediately prior to the Effective Time that is held by a non-employee director of the Board of Directors (a “Director Restricted Share Award”) shall, as of the Effective Time, become fully vested and shall be cancelled in exchange for the payment of the Merger Consideration with respect to the total number of Shares subject to such Director Restricted Share Award. The Surviving Corporation shall issue to the holders of Director Restricted Share Awards the Merger Consideration in respect of the applicable number of Shares described in the immediately preceding sentence, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the making of such payment, within five (5) business days following the Effective Time. (e) Prior to the Effective Time, the Company shall take ~~such~~ all actions ~~as are~~ (including obtaining any necessary ~~for~~ determinations and/or resolutions of the ~~assumption~~ Board of Directors of the Company or a duly authorized committee thereof, and, if appropriate, amending the terms of the ESPP) that may be necessary or required under the ESPP and applicable Laws to ensure that (i) no new offering period under the ESPP shall begin after September 30, 2019; (ii) with respect to the current offering period set to end on September 30, 2019 any remaining contributions held in the participant accounts under the ESPP after the purchase of shares of Company Common Stock ~~Options pursuant~~ at the end of such offering period shall be returned to ~~this~~ the participant (without interest) after the last business day of the offering, (iii) the ESPP shall terminate in its entirety immediately prior to the Closing and no further rights shall be granted or exercised under the ESPP thereafter. Notwithstanding any restrictions on transfer of stock in the ESPP, all shares of Company Common Stock purchased under the ESPP shall be treated in accordance with Section ~~2.04, including the reservation, issuance~~ 2.1(a). (f) The Company shall take any and ~~listing of Parent Stock as is~~ all actions reasonably necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger5.6. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Merger Agreement

Equity-Based Awards. Upon the occurrence of a Change of Control of the Company, except to the extent a more favorable result for the Employee applies under an applicable incentive plan or award, the following will apply: (a) ~~Except~~ If the purchaser, successor or surviving entity (or parent thereof) (the “Surviving Entity”) in the Change of Control transaction so agrees, some or all outstanding equity-based awards then held by the Employee shall be assumed, or replaced with the same type of award with similar terms and conditions, by the Surviving Entity in the Change of Control transaction; provided that such assumption or replacement shall be permitted without the Employee’s consent only to the extent the assumed or replacement award, as ~~set forth in Section 2.04(a)~~ the case may be, relates to publicly traded or otherwise liquid equity securities after the consummation of the ~~Company Disclosure Letter,~~ Change of Control transaction and to the extent other appropriate adjustments in the terms ~~of each outstanding option to purchase shares of Company Stock under any equity compensation plan~~ and conditions of the ~~Company~~ award (including any performance goals) are made so that the Employee is not disadvantaged solely as a result of the Change of Control. If applicable, each award assumed by the Surviving Entity shall be appropriately adjusted, immediately after such Change of Control, to apply to the number and class of securities which would have been issuable to the Employee upon the consummation of such Change of Control had the award been exercised, vested or earned immediately prior to such Change of Control. Upon the Employee’s termination of employment by the Surviving Entity without Cause, or by the Employee for Good Reason, in either case within thirty-six (36) months following the Change of Control, all of the Employee’s awards that are in effect as of the date of such termination shall be vested in full or deemed earned in full (assuming the maximum performance goals provided under such award were met, if applicable) effective on the date of such termination. (b) To the extent the Surviving Entity in the Change of Control transaction does not assume the equity-based awards held by the Employee or issue replacement awards as provided in clause (a): (i) The Employee shall have the right at any time thereafter to exercise any stock options (“~~Company Stock Option~~Options”), ) or stock appreciation rights (“SARs”) held by the Employee at the time of the Change of Control in full whether or not ~~exercisable~~ the Option or ~~vested, shall be adjusted as necessary~~ SAR was theretofore exercisable; provided that the Company may elect to ~~provide that, at the Effective Time, each Company Stock Option~~ cancel all outstanding ~~immediately prior~~ Options or SARs in exchange for a cash payment equal to the ~~Effective Time~~ excess of the Change of Control Price over the exercise price of the shares of the Company’s common stock (“Shares”)_subject to such Option or SAR upon the Change of Control (or for no cash payment if such excess is zero); (ii) Shares of time-based restricted stock (“Restricted Stock”) and restricted stock units (“Restricted Stock Units”) held by the Employee that are not then vested shall ~~be converted into an option~~ vest upon the date of the Change of Control and the Employee shall have the right, exercisable by written notice to the Company within sixty (~~each~~60) days after the Change of Control, to receive, in exchange for the surrender of such Restricted Stock, an amount of cash equal to the Change of Control Price (as defined below) of such Restricted Stock or Restricted Stock Units; provided that the Company may elect to cancel each outstanding Restricted Stock Unit in exchange for a cash payment equal to the Change of Control Price upon the Change of Control; (iii) The Employee shall have, with respect to each equity-based incentive award then held by the Employee subject to the achievement of a performance goal for which the performance period has not expired (“~~Adjusted Option~~Performance Award”) ~~to acquire~~shall have the right, ~~on the same terms and conditions as were applicable under such Company Stock Option immediately prior~~ exercisable by written notice to the ~~Effective Time~~Company within sixty (60) days after the Change of Control, to receive, in exchange for the ~~number~~ surrender of ~~shares~~ the Performance Award, an amount of ~~Parent Stock~~ cash equal to the product of (iA) the value of the Performance Award, assuming the greater of target or projected actual performance (based on the assumption that the applicable performance goals continue to be achieved at the same rate through the end of the performance period as they are at the time of the Change of Control), and (B) a fraction, the numerator of which is the number of ~~shares~~ whole months that have elapsed from the beginning of ~~Company Stock subject to such Company Stock Option immediately prior~~ the performance period to the ~~Effective Time multiplied by~~ date of the Change of Control and the denominator of which is the number of whole months in the performance period; (iiiv) ~~the Per Share Consideration~~The Employee shall be entitled to receive, with ~~any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject~~ respect to any ~~such Adjusted Option will be an amount (rounded up to~~ dividend equivalent units then held by the ~~nearest whole cent)~~ Employee, a cash payment equal to the ~~quotient~~ value of ~~(A)~~ the ~~exercise price per share~~ dividend equivalent units as of ~~Company Stock subject to~~ the date of the Change of Control; provided that such ~~Company Stock Option immediately prior~~ payment will be pro rated to the ~~Effective Time divided by~~ extent, if at all, any related award is settled on a pro rata basis; and (Bv) ~~the Per Share Consideration~~The Employee will be entitled to receive, with ~~any fractional cents rounded up~~ respect to ~~the next higher number~~ each type of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall equity-based award not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the ~~same terms~~foregoing provisions, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent a cash payment based on the ~~achievement~~ value of ~~specified~~ the award as of the date of the Change of Control. The Company ~~stock targets~~ covenants and agrees to take such steps (including amendment of any existing plan) to insure that all plans under which the foregoing types of awards are made shall allow or provide for such vesting and distribution. For purposes of this paragraph 10, “~~Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to~~ Change of Control Price” means the ~~quotient of~~highest of the following: (A) the ~~Stock Vesting Target divided~~ fair market value of the Shares, as determined by the Company’s Board of Directors, on the date of the Change of Control; (B) the ~~Per~~ highest price per Share ~~Consideration, with any fractional cents rounded up to~~ paid in the ~~next higher number~~ Change of ~~whole cents. Except as set forth in Section 2.04(b~~Control transaction; or (C) the fair market value of the ~~Company Disclosure Letter~~Shares, ~~no Company Stock Award shall be subject to accelerated vesting upon or in connection with~~ calculated on the ~~transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption~~ date of surrender of the ~~Company Stock Options~~ relevant award in accordance with this paragraph 10, but this clause (C) shall not apply if in the Change of Control transaction, or pursuant to ~~this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary~~ an agreement to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to which the Company ~~Stock Options and~~is a party governing the Change of Control transaction, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status all of the ~~prospectus contained therein)~~ Shares are purchased for ~~so long as any such Company Stock Options remain outstanding~~and/or converted into the right to receive a current payment of cash and no other securities or other property. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger11. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Contingent Employment Agreement

Equity-Based Awards. (a) Except as ~~set forth~~ provided in Section ~~2.04(a) of the Company Disclosure Letter~~2.04(d), the terms of each outstanding compensatory option to purchase shares of Company Stock ~~under any equity compensation plan of the Company~~ (a “Company Stock Option”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, the number of shares of Parent Class A Common Stock equal to the product of (~~i) the~~ i)the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Class A Common Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the ~~Per Share Consideration~~Exchange Ratio, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner reasonably acceptable to Parent and the Company that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein.409A. (b) ~~Each~~ Except as provided in Section 2.04(c) and Section 2.04(d), the terms of each outstanding restricted stock ~~award~~ unit or ~~performance share award outstanding immediately prior to the Effective Time under any equity compensation plan~~ deferred stock unit that, in either case, is settleable in shares of ~~the~~ Company Stock (~~each,~~ a “Company ~~Stock Award~~RSU”) ), whether or not vested, shall be adjusted as necessary to provide that, at the Effective Time, ~~such~~ each Company ~~Stock Award~~ RSU outstanding immediately prior to the Effective Time shall be converted into a ~~restricted stock award or performance share award~~RSU (each, an “Adjusted RSU”) to acquire, on the same terms and conditions as ~~applicable~~were applicable under such Company RSU immediately prior to the Effective Time, ~~relating to~~ the number of shares of Parent Class A Common Stock equal to the product of (i) the number of shares of Company Stock ~~relating~~ subject to such Company ~~Stock Award~~ RSU immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~Exchange Ratio, with any fractional shares rounded down to the next lower whole number of shares~~. Except as set forth~~ . (c) At or promptly after the Effective Time, each outstanding Company RSU (each, a “Director RSU”) held by a non-employee director or former non-employee director of the Company (each, a “Director”), whether or not vested, shall be canceled, and the Company shall pay each such Director at or promptly after the Effective Time for each such Director RSU an amount in cash computed by first determining the Adjusted RSU that such Director would receive if the Director RSU held by such Director was converted into an Adjusted RSU pursuant to the methodology described in Section 2.04(b) (each, a “Notional Adjusted RSU”) and then multiplying (i) the closing sale price of a share of Parent Class A Common Stock on NASDAQ on the trading day immediately preceding the Effective Time by (ii) the number of shares of Parent Class A Common Stock with respect to the Notional Adjusted RSUs. (d) (i) At or promptly after the Effective Time, each outstanding Company Stock Option (each, a “Former Employee Option”) held by a former employee or individual contractor of the Company ~~Disclosure Letter~~(each, ~~each converted Company Stock Award~~ a “Former Employee”), whether or not exercisable or vested, shall be ~~subject~~ cancelled, and the Company shall pay each such Former Employee at or promptly after the Effective Time for each such Former Employee Option an amount in cash computed by first determining the Adjusted Option that such Former Employee would receive if the Former Employee Option held by such Former Employee was converted into an Adjusted Option pursuant to the ~~same terms~~methodology described in Section 2.04(a) (each, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (a “~~Stock Vesting Targets~~Notional Adjusted Option”) ~~shall be adjusted so that each Stock Vesting Target is equal to the quotient of:~~ and then multiplying (A) the excess of the closing sale price of a share of Parent Class A Common Stock ~~Vesting Target divided~~ on NASDAQ on the trading day immediately preceding the Effective Time over the per share exercise price of such Notional Adjusted Option, if any, by (B) the ~~Per Share Consideration, with any fractional cents rounded up to the next higher~~ number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of ~~Parent~~ Company Stock subject to such Notional Adjusted Option to the extent unexercised. For the avoidance of doubt, all Former Company ~~Stock~~ Options ~~and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective~~ outstanding as ~~soon as practicable following~~ of the Effective Time that have a per share exercise price equal to or exceeding the closing sale price of a share of Parent Class A Common Stock on NASDAQ on the trading day immediately preceding the Effective Time shall be immediately cancelled and ~~to maintain~~ forfeited without any liability on the ~~effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status~~ part of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the MergerSurviving Corporation or Parent. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Merger Agreement

Appears in 1 contract

Samples: Merger Agreement (Cascade Corp)

Equity-Based Awards. (a) ~~Except~~ As soon as ~~set forth in Section 2.04(a)~~ practicable following the date of ~~the Company Disclosure Letter~~this Agreement, the ~~terms~~ Board of ~~each outstanding option to purchase shares of Company Stock under any equity compensation plan~~ Directors of the Company (~~a “~~or, if appropriate, any committee thereof administering the Company Stock Plans) shall adopt such resolutions or take such other actions (including obtaining any required consents) as may be required to effect the following: (i) (A) prior to the Effective Time, each outstanding unvested Company Stock Option shall automatically accelerate so that each such Company Stock Option shall become fully exercisable for all shares of Company Common Stock at the time subject to such Company Stock Option and may be exercised by the holder thereof for any or all of such shares and (B) upon the Effective Time, all outstanding Company Stock Options shall be canceled, with the holder of each Company Stock Option becoming entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount in cash equal to (x) the excess, if any, of the per share Merger Consideration over the exercise price per share of Company Common Stock subject to such Company Stock Option”), ~~whether~~ multiplied by (y) the number of shares of Company Common Stock subject to such Company Stock Option; provided that all amounts payable pursuant to this clause (i) shall be subject to any required withholding of taxes or ~~not exercisable~~ proof of eligibility for exemption therefrom and shall be paid at or ~~vested~~as soon as practicable following the Effective Time, without interest; (ii) each share of Company Restricted Stock shall be adjusted as necessary to provide ~~that~~that the restrictions on such share shall lapse at the Effective Time, and at the Effective Time, each share of Company Restricted Stock ~~Option~~ shall be converted into the right to receive the Merger Consideration in accordance with Section 2.01(c), subject to any applicable withholding pursuant to Section 2.02(h); (iii) upon the Effective Time, each Company Stock-Based Award that is a performance share unit award (a “Company Performance Share Unit Award”) and that is outstanding ~~immediately~~ shall be canceled, with the holder thereof becoming entitled to receive, in full satisfaction of the rights of such holder with respect thereto, an amount in cash equal to (A) the Merger Consideration multiplied by (B) a number of shares of Company Common Stock determined by multiplying the target number of shares of Company Common Stock subject to such Company Performance Share Unit Award as of the Effective Time by a fraction, the numerator of which is the sum of 365 and the number of days that have elapsed during the applicable performance cycle prior to the Effective Time ~~shall be converted into an option (each, an “Adjusted Option”) to acquire, on~~ and the ~~same terms and conditions as were applicable under such Company Stock Option immediately prior to~~ denominator of which is the ~~Effective Time, the~~ total number of ~~shares of Parent Stock equal to~~ days in the ~~product of (i)~~ applicable performance cycle; provided that in no event shall the number of shares of Company Common Stock ~~subject to such Company Stock Option immediately prior~~ determined pursuant to the ~~Effective Time multiplied by (ii)~~ formula in the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by foregoing clause (B) exceed 100% of the ~~Per Share Consideration, with any fractional cents rounded up to the next higher~~ target number of ~~whole cents. Notwithstanding the foregoing, if the conversion of~~ shares subject to a Company ~~Stock Option in accordance with the preceding provisions of~~ Performance Share Unit Award; provided further that all amounts payable pursuant to this ~~Section 2.04(a~~clause (iii) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to ~~accelerated vesting upon~~ any required withholding of taxes or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan proof of ~~the Company (each, a “Company Stock Award”)~~ eligibility for exemption therefrom and shall be ~~adjusted as necessary to provide that,~~ paid at ~~the Effective Time, such Company Stock Award shall be converted into a restricted stock award~~ or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award immediately prior to the Effective Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”) shall be adjusted so that each Stock Vesting Target is equal to the quotient of: (A) the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.without interest;

Appears in 1 contract

Samples: Merger Agreement (Millipore Corp /Ma)

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a) of the Company Disclosure Letter, the terms of each outstanding~~ Each option to purchase ~~shares of Company Stock under any equity compensation plan of~~ Shares (other than an option granted pursuant to the Company ESPP) (each, a “Company ~~Stock~~ Option”), whether vested or ~~not exercisable or vested~~unvested, ~~shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option~~ that is outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, shall, as of the ~~number of shares of Parent Stock~~ Effective Time, become fully vested and be converted into the right to receive an amount in cash equal to the product of (i) the total number of ~~shares of Company Stock~~ Shares subject to such Company ~~Stock~~ Option immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~excess, ~~with any fractional shares rounded down to~~ if any, of the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) Equity Award Consideration over the exercise price per ~~share of Company Stock~~ Share subject to such Company ~~Stock Option immediately prior~~ Option. The Surviving Corporation or one of its Subsidiaries, as applicable, shall pay to the ~~Effective Time divided by (B)~~ holders of Company Options the ~~Per Share Consideration~~cash amounts described in the immediately preceding sentence, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with ~~any fractional cents rounded up~~ respect to the ~~next higher number~~ making of ~~whole cents. Notwithstanding~~ such payment, within five business days following the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated hereinEffective Time. (b) Each award of restricted stock ~~award~~ units (other than 2014 LTIP Units) that corresponds to Shares and that is outstanding as of the date hereof (each, a “Company RSU Award”), whether vested or ~~performance share award~~ unvested, that is also outstanding immediately prior to the Effective ~~Time under any equity compensation plan~~ Time, shall, as of ~~the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at~~ the Effective Time, ~~such Company Stock Award shall~~ become fully vested and be converted into ~~a restricted stock award or performance share award, as applicable, relating~~ the right to ~~the number of shares of Parent Stock~~ receive an amount in cash equal to the product of (i) the total number of ~~shares of Company Stock relating~~ restricted stock units subject to such Company ~~Stock~~ RSU Award immediately prior to the Effective Time (assuming the satisfaction of any applicable performance criteria at 100% of target level) multiplied by (ii) the ~~Per Share~~ Equity Award Consideration, . The Surviving Corporation shall pay to the holders of Company RSU Awards the cash amounts described in the immediately preceding sentence (together with any ~~fractional shares rounded down~~ dividend equivalents corresponding to Company RSU Awards that vest in accordance with this Section 5.6(b)), less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the ~~next lower whole number~~ making of ~~shares. Except~~ such payments, within five business days following the Effective Time. (c) Each award of restricted Shares that is outstanding as ~~set forth in Section 2.04(b)~~ of the date hereof that is also outstanding and unvested immediately prior to the Effective Time (the “Restricted Shares” and, together with the Company ~~Disclosure Letter~~Options and Company RSU Awards, the “Company Equity Awards”) shall, as of the Effective Time, automatically and without any action on the part of the holder thereof, vest and the restrictions with respect thereto shall lapse, and each ~~converted~~ share of Company Common Stock ~~Award~~ subject to such grant of Restricted Shares shall be converted into cash, Common Units or a combination of cash and Common Units in accordance with Section 2.1, depending on whether the holder of such Restricted Shares makes a Mixed Election, Cash Election or a Common Unit Election and subject to the terms and conditions of Section 2.1. Unless the holder of such Restricted Shares shall have remitted to the Company the amount required to be withheld with respect to the vesting and lapse of restrictions on the Restricted Shares under the Code or any provision of state, local or foreign Tax Law, the consideration to be received by such holder pursuant to Section 2.1 shall be reduced by the amount required to be deducted and withheld with respect to the vesting and lapse of such restrictions on the Restricted Shares. Such reduction shall come first from the cash portion of the consideration payable to the holder of the Restricted Shares under Section 2.1, if any, and if there is no cash portion of such consideration or if the cash portion is not sufficient to satisfy the amount required to be deducted and withheld with respect to vesting and lapse of such restrictions on the Restricted Shares, then the number of Common Units to be received by the holder of such Restricted Shares pursuant to Section 2.1 shall be reduced by a number of Common Units (rounded up to the nearest whole unit with cash payable in respect of the resulting fractional unit) equal to (i) the amount (or additional amount, as the case may be) required to be deducted and withheld with respect to the vesting and lapse of such restrictions on the Restricted Shares divided by (ii) the closing price of one Common Unit on the New York Stock Exchange on the day prior to the Closing Date, as reflected in the Wall Street Journal. (d) Each award of restricted Shares that is granted under the Company’s 2013 Equity Incentive Plan (the “Company 2013 EIP”) after the date hereof as permitted under Section 5.1(b) and that remains outstanding and unvested as of immediately prior to the Effective Time (each, a “Post-Signing Restricted Share”) shall be converted as of the Effective Time into (i) a restricted unit award (an “Adjusted Restricted Unit”), with the same ~~terms,~~ terms and conditions ~~and restrictions~~ as were applicable ~~under~~ to such ~~Company Stock Award~~ Post-Signing Restricted Share immediately prior to the Effective Time~~. Notwithstanding~~ , covering the ~~foregoing~~number of Common Units, rounded down to the nearest whole Common Unit, determined by multiplying the number of Shares subject to such award immediately prior to the Effective Time (assuming satisfaction of any applicable performance criteria at 100% of target level) by the Equity Award Exchange Ratio and (ii) cash in lieu of any fractional Adjusted Restricted Unit lost to such rounding in the amount set forth in Section 2.1(d), which cash shall be payable as soon as reasonably practicable (but in no event later than five business days) following the Effective Time (provided, however, (A) in the event that such cash payment would cause any additional Taxes to be payable pursuant to Section 409A of the Code with respect to a Post-Signing Restricted Share, the payment shall instead be made at the time specified in the Company ~~Stock Award vesting condition contingent on~~ 2013 EIP and related award document and (B) the ~~achievement~~ Adjusted Restricted Unit shall vest without regard to the satisfaction of ~~specified~~ any performance criteria in accordance with the terms set forth in Section 5.1(b) of the Company Disclosure Schedule). (e) Each award of restricted stock ~~targets~~ units that corresponds to Shares that is granted under the Company 2013 EIP after the date hereof as permitted under Section 5.1(b) and that remains outstanding or payable as of immediately prior to the Effective Time (each, a “~~Stock Vesting Targets~~Post-Signing Restricted Unit”) shall be ~~adjusted so~~ converted as of the Effective Time into (i) a phantom unit award (an “Adjusted Phantom Unit”), with the same terms and conditions as were applicable to such Post-Signing Restricted Unit immediately prior to the Effective Time, covering the number of Common Units, rounded down to the nearest whole Common Unit, determined by multiplying the number of Shares subject to such award immediately prior to the Effective Time (assuming satisfaction of any applicable performance criteria at 100% of target level) by the Equity Award Exchange Ratio and (ii) cash in lieu of any fractional Adjusted Phantom Unit lost to such rounding in the amount set forth in Section 2.1(d), which cash shall be payable as soon as reasonably practicable (but in no event later than five business days) following the Effective Time (provided, however, (A) in the event that such cash payment would cause any additional Taxes to be payable pursuant to Section 409A of the Code with respect to a Post-Signing Restricted Unit, the payment shall instead be made at the time specified in the Company 2013 EIP and related award document and (B) the Adjusted Phantom Unit shall vest in accordance with the terms set forth in Section 5.1(b) of the Company Disclosure Schedule). (f) Each award of restricted stock units that corresponds to Shares that were granted under the Company 2013 EIP in 2014 prior to the date of this Agreement and that are specified on Section 5.6(f) of the Company Disclosure Schedule (each, a “2014 LTIP Unit”) shall be converted as of the Effective Time into (i) an Adjusted Phantom Unit, with the same terms and conditions as were applicable to such 2014 LTIP Unit immediately prior to the Effective Time, covering the number of Common Units, rounded down to the nearest whole Common Unit, determined by multiplying the number of Shares subject to such 2014 LTIP Unit award immediately prior to the Effective Time (assuming satisfaction of any applicable performance criteria at 100% of target level) by the Equity Award Exchange Ratio and (ii) cash in lieu of any fractional Adjusted Phantom Unit lost to such rounding in the amount set forth in Section 2.1(d), which cash shall be payable as soon as reasonably practicable (but in no event later than five business days) following the Effective Time (provided, however, in the event that such cash payment would cause any additional Taxes to be payable pursuant to Section 409A of the Code with respect to a 2014 LTIP Unit, the payment shall instead be made at the time specified in the Company 2013 EIP). Such Adjusted Phantom Unit shall vest on January 2, 2015, provided that the holder thereof remains in continuous employment by the Surviving Corporation or its Subsidiaries through such date (or, if earlier, to the extent provided in a grantee’s employment agreement or the applicable 2014 LTIP Unit award agreement, upon the grantee’s termination of employment by the Surviving Corporation without “cause” or resignation for “good reason” or due to a “constructive termination” prior to such date) and shall be settled by the delivery of Common Units (net of applicable tax withholdings, which may be effected through the withholding of Common Units if elected by the grantee) on January 2, 2015 (or, if earlier, promptly following vesting). (g) The then-current offering period under the Susser Holdings Corporation 2008 Employee Stock Purchase Plan (the “Company ESPP”) shall terminate immediately prior to the Effective Time, with each participant in the Company ESPP at such time being entitled to receive from the Surviving Corporation an amount, in cash, equal to the product of (i) the Equity Award Consideration multiplied by (ii) the number of Shares such participant would have been able to purchase with the balance of his or her payroll account under the Company ESPP if the Closing Date had been the applicable “purchase date” under the Company ESPP for the then-current offering period, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the making of such payments, within five business days following the Effective Time. Each participant in the Company ESPP described in the preceding sentence shall have no further rights or benefits under the Company ESPP other than as described in the preceding sentence. (h) For purposes of this Section 5.6, (i) “Equity Award Consideration” means the closing price of one Share on the New York Stock ~~Vesting Target is~~ Exchange on the trading day prior to the Closing Date, as reflected in the Wall Street Journal, and (ii) “Equity Award Exchange Ratio” means the number equal to the quotient ~~of:~~ obtained by dividing (A) the ~~Stock Vesting Target divided~~ Equity Award Consideration by (B) the ~~Per Share Consideration, with any fractional cents rounded up to~~ closing price of one Common Unit on the ~~next higher number of whole cents. Except as set forth in Section 2.04(b) of~~ New York Stock Exchange on the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule trading day prior to the ~~Merger~~Closing Date, as reflected in the Wall Street Journal. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Merger Agreement (Energy Transfer Partners, L.P.)

Equity-Based Awards. Prior to the Effective Time, the Partnership Board (or, if appropriate, any committee thereof administering the Partnership Equity Plans) shall adopt such resolutions as may be required to provide that: (a) Except as set forth in Section 2.04(a) of the Company Disclosure Letter, the terms of each outstanding option to purchase shares of Company Stock under any equity compensation plan of the Company (a “Company Stock Option”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, each ~~Company Stock Option~~ Partnership Phantom Unit that is outstanding immediately prior to the Effective Time shall be ~~converted into an option (each~~canceled and the holder of such Partnership Phantom Unit shall be entitled to receive solely, ~~an “Adjusted Option”) to acquire~~in full satisfaction of the rights of such holder with respect thereto, ~~on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time~~a lump-sum cash payment, ~~the number of shares of Parent Stock~~ without interest, equal to the ~~product~~ sum of (i) (A) the Merger Consideration multiplied by (B) the number of ~~shares of Company Stock~~ Partnership Units that are subject to such ~~Company Stock Option~~ Partnership Phantom Unit immediately prior to the Effective Time ~~multiplied by~~ plus (ii) ~~the Per Share Consideration, with any fractional shares rounded down~~ to the ~~next lower whole~~ extent unpaid as of the Effective Time, all amounts accumulated in respect of any Partnership DERs granted with respect to such Partnership Phantom Unit (with respect to each Partnership Phantom Unit, the sum of the amounts described in the foregoing clauses (i) and (ii), the “Partnership Phantom Unit Payment Amount”), provided that (x) the Partnership Phantom Unit Payment Amount payable upon the settlement of each Off-Cycle Partnership Phantom Unit and each Specified Annual Partnership Phantom Unit (as applicable) shall be pro-rated (based on the number of ~~shares. The exercise price per share~~ days in the applicable vesting period) for the portion of ~~Parent Stock subject to any~~ the applicable vesting period in respect of such ~~Adjusted Option will be an amount~~ Off-Cycle Partnership Phantom Unit or Specified Annual Partnership Phantom Unit (~~rounded up to the nearest whole cent~~as applicable) ~~equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately~~ that elapses prior to the Effective Time ~~divided by~~ (Beach such amount, a “Pro-Rated Partnership Phantom Unit Payment Amount”) and the remainder will be forfeited for no payment and (y) in the case of each Specified Annual Partnership Phantom Unit, the amount paid in respect of the settlement of such Specified Annual Partnership Phantom Unit shall equal the lesser of (1) the ~~Per Share Consideration, with any fractional cents rounded up to~~ Pro-Rated Partnership Phantom Unit Payment Amount multiplied by two and (2) the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein.applicable Partnership Phantom Unit Payment Amount; (b) ~~Each restricted stock award or performance share award~~ at the Effective Time, each Partnership Performance Unit that is outstanding immediately prior to the Effective Time ~~under any equity compensation plan~~ shall be canceled and the holder of such Partnership Performance Unit shall be entitled to receive solely, in full satisfaction of the ~~Company (each~~rights of such holder with respect thereto, a ~~“Company Stock Award”) shall be adjusted as necessary to provide that~~lump-sum cash payment, ~~at the Effective Time~~without interest, ~~such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock~~ equal to the ~~product~~ sum of (i) (A) the Merger Consideration multiplied by (B) the number of ~~shares of Company Stock relating~~ Partnership Units that are subject to such ~~Company Stock Award~~ Partnership Performance Unit immediately prior to the Effective Time ~~multiplied by~~ (based on a payout performance multiplier of 100%) plus (ii) ~~the Per Share Consideration, with any fractional shares rounded down~~ to the ~~next lower whole~~ extent unpaid as of the Effective Time, all amounts accumulated in respect of any Partnership DERs granted with respect to such Partnership Performance Unit (based upon a payout performance multiplier of 100) (with respect to each Partnership Performance Unit, the sum of the amounts described in the foregoing clauses (i) and (ii), the “Partnership Performance Unit Payment Amount”), provided that (x) the Partnership Performance Unit Payment Amount payable upon the settlement of each Off-Cycle Partnership Performance Unit and each Specified Annual Partnership Performance Unit (as applicable) shall be pro-rated (based on the number of ~~shares. Except as set forth~~ days in ~~Section 2.04(b~~the applicable performance period) for the portion of the ~~Company Disclosure Letter~~applicable performance period in respect of such Off-Cycle Partnership Performance Unit or Specified Annual Partnership Performance Unit (as applicable) that elapses prior to the Effective Time (each such amount, a “Pro-Rated Partnership Performance Unit Payment Amount”) and the remainder will be forfeited for no payment and (y) in the case of each Specified Annual Partnership Performance Unit, the amount paid in respect of the settlement of such Specified Annual Partnership Performance Unit shall equal the lesser of (1) the Pro-Rated Partnership Performance Unit Payment Amount multiplied by two and (2) the applicable Partnership Performance Unit Payment Amount; (c) at the Effective Time, each ~~converted Company Stock Award shall be subject to the same terms, conditions and restrictions as were applicable under such Company Stock Award~~ Partnership Director Deferred Unit that is outstanding immediately prior to the Effective ~~Time. Notwithstanding the foregoing, any Company Stock Award vesting condition contingent on the achievement of specified Company stock targets (“Stock Vesting Targets”)~~ Time shall be ~~adjusted so that each Stock Vesting Target is~~ canceled and the holder of such Partnership Director Deferred Unit shall be entitled to receive solely, in full satisfaction of the rights of such holder with respect thereto, a lump-sum cash payment, without interest, equal to the ~~quotient of:~~ sum of (i) (A) the ~~Stock Vesting Target divided~~ Merger Consideration multiplied by (B) the ~~Per Share Consideration, with any fractional cents rounded up to the next higher~~ number of ~~whole cents. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, no Company Stock Award shall be~~ Partnership Units that are subject to ~~accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take~~ such ~~actions as are necessary for the assumption of the Company Stock Options pursuant~~ Partnership Director Deferred Unit immediately prior to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time ~~and~~ plus (ii) to ~~maintain~~ the ~~effectiveness~~ extent unpaid as of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, ~~will be subject~~ all amounts accumulated in respect of any Partnership DERs granted with respect to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such ~~equity compensation plan of the Company complied with such rule prior to the Merger.~~Partnership Director Deferred Unit; and (d) ~~Prior to~~ at the Effective Time, each Partnership Deferral Unit that is outstanding immediately prior to the ~~Company shall~~Effective Time shall be canceled and the holder of such Partnership Deferral Unit shall be entitled to receive solely, in full satisfaction of the rights of such holder with respect thereto, a lump-sum cash payment, without interest, equal to the sum of (i) (A) the Merger Consideration multiplied by (B) the number of Partnership Units that are subject to such Partnership Deferral Unit immediately prior to the Effective Time plus (ii) to the extent unpaid as of the Effective Time, all amounts accumulated in respect of any Partnership DERs granted with respect to ~~stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04~~such Partnership Deferral Unit.

Appears in 1 contract

Samples: Merger Agreement (Buckeye Partners, L.P.)

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a) of the Company Disclosure Letter, the terms of each outstanding~~ Each option to purchase ~~shares of Company Stock under any equity compensation plan of~~ Shares (other than an option granted pursuant to the Company ESPP) (each, a “Company ~~Stock~~ Option”), whether vested or ~~not exercisable or vested~~unvested, ~~shall be adjusted as necessary to provide that, at the Effective Time, each Company Stock Option~~ that is outstanding immediately prior to the Effective Time shall be converted into an option (each, an “Adjusted Option”) to acquire, on the same terms and conditions as were applicable under such Company Stock Option immediately prior to the Effective Time, shall, as of the ~~number of shares of Parent Stock~~ Effective Time, become fully vested and be converted into the right to receive an amount in cash equal to the product of (i) the total number of ~~shares of Company Stock~~ Shares subject to such Company ~~Stock~~ Option immediately prior to the Effective Time multiplied by (ii) the ~~Per Share Consideration~~excess, ~~with any fractional shares rounded down to~~ if any, of the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) Equity Award Consideration over the exercise price per ~~share of Company Stock~~ Share subject to such Company ~~Stock Option immediately prior~~ Option. The Surviving Corporation or one of its Subsidiaries, as applicable, shall pay to the ~~Effective Time divided by (B)~~ holders of Company Options the ~~Per Share Consideration~~cash amounts described in the immediately preceding sentence, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with ~~any fractional cents rounded up~~ respect to the ~~next higher number~~ making of ~~whole cents. Notwithstanding~~ such payment, within five business days following the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated hereinEffective Time. (b) Each award of restricted stock ~~award~~ units (other than 2014 LTIP Units) that corresponds to Shares and that is outstanding as of the date hereof (each, a “Company RSU Award”), whether vested or ~~performance share award~~ unvested, that is also outstanding immediately prior to the Effective ~~Time under any equity compensation plan~~ Time, shall, as of ~~the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at~~ the Effective Time, ~~such Company Stock Award shall~~ become fully vested and be converted into ~~a restricted stock award or performance share award, as applicable, relating~~ the right to ~~the number of shares of Parent Stock~~ receive an amount in cash equal to the product of (i) the total number of ~~shares of Company Stock relating~~ restricted stock units subject to such Company ~~Stock~~ RSU Award immediately prior to the Effective Time (assuming the satisfaction of any applicable performance criteria at 100% of target level) multiplied by (ii) the ~~Per Share~~ Equity Award Consideration, . The Surviving Corporation shall pay to the holders of Company RSU Awards the cash amounts described in the immediately preceding sentence (together with any ~~fractional shares rounded down~~ dividend equivalents corresponding to Company RSU Awards that vest in accordance with this Section 5.6(b)), less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the ~~next lower whole number~~ making of ~~shares. Except~~ such payments, within five business days following the Effective Time. (c) Each award of restricted Shares that is outstanding as ~~set forth in Section 2.04(b)~~ of the date hereof that is also outstanding and unvested immediately prior to the Effective Time (the “Restricted Shares” and, together with the Company ~~Disclosure Letter~~Options and Company RSU Awards, the “Company Equity Awards”) shall, as of the Effective Time, automatically and without any action on the part of the holder thereof, vest and the restrictions with respect thereto shall lapse, and each ~~converted~~ share of Company Common Stock ~~Award~~ subject to such grant of Restricted Shares shall be converted into cash, Common Units or a combination of cash and Common Units in accordance with Section 2.1, depending on whether the holder of such Restricted Shares makes a Mixed Election, Cash Election or a Common Unit Election and subject to the terms and conditions of Section 2.1. Unless the holder of such Restricted Shares shall have remitted to the Company the amount required to be withheld with respect to the vesting and lapse of restrictions on the Restricted Shares under the Code or any provision of state, local or foreign Tax Law, the consideration to be received by such holder pursuant to Section 2.1 shall be reduced by the amount required to be deducted and withheld with respect to the vesting and lapse of such restrictions on the Restricted Shares. Such reduction shall come first from the cash portion of the consideration payable to the holder of the Restricted Shares under Section 2.1, if any, and if there is no cash portion of such consideration or if the cash portion is not sufficient to satisfy the amount required to be deducted and withheld with respect to vesting and lapse of such restrictions on the Restricted Shares, then the number of Common Units to be received by the holder of such Restricted Shares pursuant to Section 2.1 shall be reduced by a number of Common Units (rounded up to the nearest whole unit with cash payable in respect of the resulting fractional unit) equal to (i) the amount (or additional amount, as the case may be) required to be deducted and withheld with respect to the vesting and lapse of such restrictions on the Restricted Shares divided by (ii) the closing price of one Common Unit on the New York Stock Exchange on the day prior to the Closing Date, as reflected in the Wall Street Journal. (d) Each award of restricted Shares that is granted under the Company’s 2013 Equity Incentive Plan (the “Company 2013 EIP”) after the date hereof as permitted under Section 5.1(b) and that remains outstanding and unvested as of immediately prior to the Effective Time (each, a “Post-Signing Restricted Share”) shall be converted as of the Effective Time into (i) a restricted unit award (an “Adjusted Restricted Unit”), with the same ~~terms,~~ terms and conditions ~~and restrictions~~ as were applicable ~~under~~ to such ~~Company Stock Award~~ Post-Signing Restricted Share immediately prior to the Effective Time~~. Notwithstanding~~ , covering the ~~foregoing~~number of Common Units, rounded down to the nearest whole Common Unit, determined by multiplying the number of Shares subject to such award immediately prior to the Effective Time (assuming satisfaction of any applicable performance criteria at 100% of target level) by the Equity Award Exchange Ratio and (ii) cash in lieu of any fractional Adjusted Restricted Unit lost to such rounding in the amount set forth in Section 2.1 (d), which cash shall be payable as soon as reasonably practicable (but in no event later than five business days) following the Effective Time (provided, however, (A) in the event that such cash payment would cause any additional Taxes to be payable pursuant to Section 409A of the Code with respect to a Post-Signing Restricted Share, the payment shall instead be made at the time specified in the Company ~~Stock Award vesting condition contingent on~~ 2013 EIP and related award document and (B) the ~~achievement~~ Adjusted Restricted Unit shall vest without regard to the satisfaction of ~~specified~~ any performance criteria in accordance with the terms set forth in Section 5.1(b) of the Company Disclosure Schedule). (e) Each award of restricted stock ~~targets~~ units that corresponds to Shares that is granted under the Company 2013 EIP after the date hereof as permitted under Section 5.1(b) and that remains outstanding or payable as of immediately prior to the Effective Time (each, a “~~Stock Vesting Targets~~Post-Signing Restricted Unit”) shall be ~~adjusted so~~ converted as of the Effective Time into (i) a phantom unit award (an “Adjusted Phantom Unit”), with the same terms and conditions as were applicable to such Post-Signing Restricted Unit immediately prior to the Effective Time, covering the number of Common Units, rounded down to the nearest whole Common Unit, determined by multiplying the number of Shares subject to such award immediately prior to the Effective Time (assuming satisfaction of any applicable performance criteria at 100% of target level) by the Equity Award Exchange Ratio and (ii) cash in lieu of any fractional Adjusted Phantom Unit lost to such rounding in the amount set forth in Section 2.1(d), which cash shall be payable as soon as reasonably practicable (but in no event later than five business days) following the Effective Time (provided, however, (A) in the event that such cash payment would cause any additional Taxes to be payable pursuant to Section 409A of the Code with respect to a Post- Signing Restricted Unit, the payment shall instead be made at the time specified in the Company 2013 EIP and related award document and (B) the Adjusted Phantom Unit shall vest in accordance with the terms set forth in Section 5.1(b) of the Company Disclosure Schedule). (f) Each award of restricted stock units that corresponds to Shares that were granted under the Company 2013 EIP in 2014 prior to the date of this Agreement and that are specified on Section 5.6(f) of the Company Disclosure Schedule (each, a “2014 LTIP Unit”) shall be converted as of the Effective Time into (i) an Adjusted Phantom Unit, with the same terms and conditions as were applicable to such 2014 LTIP Unit immediately prior to the Effective Time, covering the number of Common Units, rounded down to the nearest whole Common Unit, determined by multiplying the number of Shares subject to such 2014 LTIP Unit award immediately prior to the Effective Time (assuming satisfaction of any applicable performance criteria at 100% of target level) by the Equity Award Exchange Ratio and (ii) cash in lieu of any fractional Adjusted Phantom Unit lost to such rounding in the amount set forth in Section 2.1(d), which cash shall be payable as soon as reasonably practicable (but in no event later than five business days) following the Effective Time (provided, however, in the event that such cash payment would cause any additional Taxes to be payable pursuant to Section 409A of the Code with respect to a 2014 LTIP Unit, the payment shall instead be made at the time specified in the Company 2013 EIP). Such Adjusted Phantom Unit shall vest on January 2, 2015, provided that the holder thereof remains in continuous employment by the Surviving Corporation or its Subsidiaries through such date (or, if earlier, to the extent provided in a grantee’s employment agreement or the applicable 2014 LTIP Unit award agreement, upon the grantee’s termination of employment by the Surviving Corporation without “cause” or resignation for “good reason” or due to a “constructive termination” prior to such date) and shall be settled by the delivery of Common Units (net of applicable tax withholdings, which may be effected through the withholding of Common Units if elected by the grantee) on January 2, 2015 (or, if earlier, promptly following vesting). (g) The then-current offering period under the Susser Holdings Corporation 2008 Employee Stock Purchase Plan (the “Company ESPP”) shall terminate immediately prior to the Effective Time, with each participant in the Company ESPP at such time being entitled to receive from the Surviving Corporation an amount, in cash, equal to the product of (i) the Equity Award Consideration multiplied by (ii) the number of Shares such participant would have been able to purchase with the balance of his or her payroll account under the Company ESPP if the Closing Date had been the applicable “purchase date” under the Company ESPP for the then-current offering period, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the making of such payments, within five business days following the Effective Time. Each participant in the Company ESPP described in the preceding sentence shall have no further rights or benefits under the Company ESPP other than as described in the preceding sentence. (h) For purposes of this Section 5.6, (i) “Equity Award Consideration” means the closing price of one Share on the New York Stock ~~Vesting Target is~~ Exchange on the trading day prior to the Closing Date, as reflected in the Wall Street Journal, and (ii) “Equity Award Exchange Ratio” means the number equal to the quotient ~~of:~~ obtained by dividing (A) the ~~Stock Vesting Target divided~~ Equity Award Consideration by (B) the ~~Per Share Consideration, with any fractional cents rounded up to~~ closing price of one Common Unit on the ~~next higher number of whole cents. Except as set forth in Section 2.04(b) of~~ New York Stock Exchange on the Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (c) Parent shall take such actions as are necessary for the assumption of the Company Stock Options pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule trading day prior to the ~~Merger~~Closing Date, as reflected in the Wall Street Journal. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Merger Agreement

Equity-Based Awards. (a) ~~Except~~ Each award of restricted share units that corresponds to Shares and vests solely based on the passage of time (each, a “Company RSU Award”), whether vested or unvested, that is outstanding immediately prior to the Effective Time, shall, as ~~set forth~~ of the Effective Time, shall be assumed by Parent and converted into a restricted unit award with respect to Common Units (each an “Assumed RSU Award”). Each Assumed RSU Award shall be converted into a restricted unit award to receive a number of Common Units equal to the product obtained by multiplying (x) the number of Shares subject to such Company RSU Award immediately prior to the Effective Time by (y) a ratio equal to (A)(1) the Per Share Cash Amount divided by (2) the closing price of one Common Unit on the NYSE on the day prior to the Closing Date plus (B) the Exchange Ratio (such ratio, the “Equity Exchange Ratio”), rounded up or down to the nearest whole Common Unit. Each Assumed RSU Award shall (i) otherwise be subject to the same terms and conditions (including as to vesting and issuance) as were applicable to the Company RSU Award immediately prior to the Effective Time and (ii) fully accelerate upon a termination without “cause,” for “good reason” or a result of the holder’s death or disability (as such terms are defined in Section ~~2.04(a~~5.6(a) of the Company Disclosure ~~Letter~~Schedule). (b) Each award of performance share units that corresponds to Shares (each, ~~the terms of each outstanding option to purchase shares of Company Stock under any equity compensation plan of the Company (~~a “Company ~~Stock Option~~PSU Award”), ~~whether or not exercisable or vested, shall be adjusted~~ that is outstanding and vested as ~~necessary to provide that, at~~ of the Effective Time, ~~each~~ shall, as of the Effective Time, be cancelled in exchange for the payment of the Merger Consideration with respect to the number of Shares equal to the total number of Shares with respect to which such Company PSU Award has vested prior to the Effective Time. The Surviving Corporation shall issue to the holders of Company PSU Awards the Merger Consideration in respect of the applicable number of Shares described in the immediately preceding sentence, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the making of such payment, within five business days following the Effective Time. Each Company PSU Award that is outstanding and unvested as of the Effective Time shall automatically, and without any required action of the holder thereof, be cancelled without consideration. (c) Each award of restricted Company Common Stock ~~Option~~ that is outstanding immediately prior to the Effective Time ~~shall be converted into an option~~ (~~each, an~~ the “~~Adjusted Option”) to acquire, on~~ Company Restricted Shares,” together with the ~~same terms~~ Company RSU Awards and ~~conditions as were applicable under such~~ the Company ~~Stock Option immediately prior to the Effective Time~~Table of Contents PSU Awards, the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock subject to such Company Stock Option immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the Per Share Consideration, with any fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company ~~Stock Award~~Equity Awards”) shall be ~~adjusted as necessary~~ assumed by Parent and converted into a restricted unit award with respect to ~~provide that, at the Effective Time, such Company~~ Common Units (each an “Assumed Restricted Stock Award”). Each Assumed Restricted Stock Award shall be converted into a restricted ~~stock~~ unit award ~~or performance share award, as applicable, relating~~ representing a contractual right upon vesting to ~~the~~ receive a number of ~~shares of Parent Stock~~ Common Units equal to the product of obtained by multiplying (ix) the number of ~~shares of Company Stock relating~~ Shares subject to such ~~Company~~ Assumed Restricted Stock Award immediately prior to the Effective Time ~~multiplied~~ by (iiy) the ~~Per Share Consideration~~Equity Exchange Ratio, ~~with any fractional shares~~ rounded up or down to the ~~next lower~~ nearest whole ~~number of shares~~Common Unit. ~~Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company~~ Each Assumed Restricted Stock Award shall otherwise be subject to the same ~~terms,~~ terms and conditions (including as to vesting and ~~restrictions~~ issuance) as were applicable ~~under such~~ to the Company ~~Stock Award~~ Restricted Shares immediately prior to the Effective Time. ~~Notwithstanding the foregoing, any Company~~ Each Assumed Restricted Stock Award ~~vesting condition contingent on the achievement of specified Company stock targets~~ shall (~~“Stock Vesting Targets”~~i) ~~shall~~ otherwise be ~~adjusted so that each Stock Vesting Target is equal~~ subject to the ~~quotient of:~~ same terms and conditions (Aincluding as to vesting and issuance) ~~the Stock Vesting Target divided by (B) the Per Share Consideration, with any fractional cents rounded up~~ as were applicable to the ~~next higher number~~ Company Restricted Shares immediately prior to the Effective Time, (ii) have distribution equivalent rights, and (iii) fully accelerate upon a termination without “cause,” for “good reason” or a result of ~~whole cents. Except~~ the holder’s death or disability (as ~~set forth~~ such terms are defined in Section ~~2.04(b~~5.6(a) of the Company Disclosure ~~Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein~~Schedule). (cd) ~~Parent~~ Notwithstanding the foregoing, each Company Restricted Share and Company RSU Award that is outstanding immediately prior to the Effective Time that is held by a non-employee director of the Board of Directors (a “Director Restricted Share Award”) shall, as of the Effective Time, become fully vested and shall be cancelled in exchange for the payment of the Merger Consideration with respect to the total number of Shares subject to such Director Restricted Share Award. The Surviving Corporation shall issue to the holders of Director Restricted Share Awards the Merger Consideration in respect of the applicable number of Shares described in the immediately preceding sentence, less such amounts as are required to be withheld or deducted under the Code or any provision of state, local or foreign Tax Law with respect to the making of such payment, within five (5) business days following the Effective Time. (e) Prior to the Effective Time, the Company shall take ~~such~~ all actions ~~as are~~ (including obtaining any necessary ~~for~~ determinations and/or resolutions of the ~~assumption~~ Board of Directors of the Company or a duly authorized committee thereof, and, if appropriate, amending the terms of the ESPP) that may be necessary or required under the ESPP and applicable Laws to ensure that (i) no new offering period under the ESPP shall begin after September 30, 2019; (ii) with respect to the current offering period set to end on September 30, 2019 any remaining contributions held in the participant accounts under the ESPP after the purchase of shares of Company Common Stock ~~Options pursuant~~ at the end of such offering period shall be returned to ~~this~~ the participant (without interest) after the last business day of the offering, (iii) the ESPP shall terminate in its entirety immediately prior to the Closing and no further rights shall be granted or exercised under the ESPP thereafter. Notwithstanding any restrictions on transfer of stock in the ESPP, all shares of Company Common Stock purchased under the ESPP shall be treated in accordance with Section ~~2.04, including the reservation, issuance~~ 2.1(a). (f) The Company shall take any and ~~listing of Parent Stock as is~~ all actions reasonably necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall prepare and file with the SEC a registration statement on an appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior to the Merger5.6. (d) Prior to the Effective Time, the Company shall, with respect to stock option or compensation plans or arrangements, use its reasonable efforts to give effect to the transactions contemplated by this Section 2.04.

Appears in 1 contract

Samples: Merger Agreement

Equity-Based Awards. (a) ~~Except as set forth in Section 2.04(a) of~~ At or immediately prior to the ~~Company Disclosure Letter~~Effective Time, ~~the terms of~~ each ~~outstanding~~ option to purchase shares of ~~Company~~ Common Stock outstanding under ~~any equity compensation plan of~~ the Company Equity Plans (a “Company Stock Option”) that has an exercise price per share of Common Stock underlying such Company Stock Option (the “Option Exercise Price”) that is less than the Merger Consideration (each such Company Stock Option, an “In-the-Money Company Stock Option”), whether or not exercisable or vested, shall be ~~adjusted as necessary~~ cancelled and converted into the right to ~~provide that~~receive an amount in cash determined by multiplying (A) the excess of the Merger Consideration over the Option Exercise Price of such In-the-Money Company Stock Option by (B) the number of shares of Common Stock subject to such In-the-Money Company Stock Option (such amount, the “In-the-Money Company Stock Option Merger Consideration”). Each of Tahoe and Parent shall cause the Surviving Corporation to pay through the Surviving Corporation’s payroll to the holders of Company Stock Options who are current or former employees of the Company the In-the-Money Company Stock Option Merger Consideration less any required withholding Taxes payable in respect thereof pursuant to Section 3.4(d) at or reasonably promptly after the Effective Time (but in no event later than fifteen (15) calendar days after the Effective Time). All other payments under this Agreement to holders of Company Stock Options, in respect of such Company Stock Options, who are not current or former employees shall be made by the Paying Agent, on behalf of the Surviving Corporation, at or reasonably promptly after the Effective Time (but in no event later than fifteen (15) calendar days after the Effective Time). At or immediately prior to the Effective Time, each Company Stock Option ~~outstanding immediately prior~~ that has an Option Exercise Price that is equal to or greater than the ~~Effective Time~~ Merger Consideration, whether or not exercisable or vested, shall be ~~converted into an option~~ cancelled without payment. (~~each, an “Adjusted Option”~~b) ~~to acquire, on the same terms and conditions as were applicable under such Company Stock Option~~ At or immediately prior to the Effective Time, ~~the number~~ each award of restricted stock units with respect to shares of ~~Parent~~ Common Stock granted under the Company Equity Plans (each, a “Company RSU”) that is outstanding immediately prior to the Effective Time, after giving effect to any accelerated vesting thereof as the result of the transactions contemplated by this Agreement, shall be canceled and converted into the right to receive a restricted cash award (“RCA”) in an amount in cash equal to ~~the product of~~ (iA) the number of shares of ~~Company~~ Common Stock subject to such Company ~~Stock Option~~ RSU immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. The exercise price per share of Parent Stock subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of (A) the exercise price per share of Company Stock subject to such Company Stock Option immediately prior to the Effective Time divided by (B) the ~~Per Share~~ Merger Consideration~~, with~~ . Any RCA issued by Parent or the Surviving Corporation in respect of any ~~fractional cents rounded up to the next higher number of whole cents. Notwithstanding the foregoing, if the conversion of a~~ Company Stock Option in accordance with the preceding provisions of this Section 2.04(a) would cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A of the Code, such Company Stock Option shall not be converted in accordance with the preceding provisions but shall instead be converted in a manner that would not cause the related Adjusted Option to be treated as the grant of new stock right for purposes of Section 409A. Except as set forth in Section 2.04(a) of the Company Disclosure Letter, no Company Stock Option shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein. (b) Each restricted stock award or performance share award outstanding immediately prior to the Effective Time under any equity compensation plan of the Company (each, a “Company Stock Award”) shall be adjusted as necessary to provide that, at the Effective Time, such Company Stock Award shall be converted into a restricted stock award or performance share award, as applicable, relating to the number of shares of Parent Stock equal to the product of (i) the number of shares of Company Stock relating to such Company Stock Award immediately prior to the Effective Time multiplied by (ii) the Per Share Consideration, with any fractional shares rounded down to the next lower whole number of shares. Except as set forth in Section 2.04(b) of the Company Disclosure Letter, each converted Company Stock Award RSU shall be subject to the same ~~terms,~~ vesting and payment conditions and ~~restrictions as were~~ schedules applicable ~~under~~ to such Company ~~Stock Award~~ RSU immediately prior to the Effective Time~~. Notwithstanding~~ , and to the ~~foregoing~~extent, that any Company ~~Stock Award vesting condition contingent on~~ RSU would have become vested and payable, such corresponding portion of the ~~achievement of specified Company stock targets (“Stock Vesting Targets”)~~ RCA shall be ~~adjusted so that each Stock Vesting Target is equal~~ delivered to the ~~quotient of:~~ holder of such RCA, net of any required withholding Taxes payable in respect thereof pursuant to Section 3.4(d), as soon as practicable thereafter (~~A) the Stock Vesting Target divided by (B) the Per Share Consideration, with~~ and in any ~~fractional cents rounded up to~~ event not later than the next ~~higher number of whole cents. Except as set forth in Section 2.04(b)~~ regular payroll date of the ~~Company Disclosure Letter, no Company Stock Award shall be subject to accelerated vesting upon or in connection with the transactions contemplated herein~~Surviving Corporation) (without interest). (c) ~~Parent shall take such actions as are necessary for~~ Prior to the ~~assumption of~~ Effective Time, the Board (or, if appropriate, any committee thereof administering the Company ~~Stock Options pursuant to this Section 2.04, including the reservation, issuance~~ Equity Plans) shall adopt such resolutions and ~~listing of Parent Stock as is~~ take any actions that may be necessary to effectuate the transactions contemplated by this Section ~~2.04~~3.4. ~~Parent shall prepare and file with the SEC a registration statement on an appropriate form,~~ At or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Company Stock Options and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as practicable following the Effective Time and to maintain the effectiveness of such registration statement covering such Company Stock Options (and to maintain the current status of the prospectus contained therein) for so long as any such Company Stock Options remain outstanding. With respect to those individuals, if any, who, subsequent to the Effective Time, will be subject to the reporting requirements under Section 16(a) of the 1934 Act, where applicable, Parent shall administer any equity compensation plan of the Company assumed pursuant to this Section 2.04 in a manner that complies with Rule 16b-3 promulgated under the 1934 Act to the extent such equity compensation plan of the Company complied with such rule prior ~~to the Merger. (d) Prior~~ to the Effective Time, the Company ~~shall~~shall terminate the Company Equity Plans and shall provide that, ~~with~~ following the Effective Time, no holder of any Company Stock Option, or Company RSU shall have the right to acquire any equity interest in the Company, the Surviving Corporation, Parent or any of their respective Subsidiaries in respect thereof. (d) Each of Sub, the Surviving Corporation and the Paying Agent shall be entitled to ~~stock option~~ deduct and withhold from the consideration otherwise payable pursuant to this Section 3.4 such amounts as are required to be deducted or ~~compensation plans~~ withheld therefrom under the Code or ~~arrangements~~any provision of any other applicable Law. To the extent that amounts are so deducted or withheld, ~~use its reasonable efforts to give effect~~ such amounts shall be treated for all purposes of this Agreement as having been paid to the ~~transactions contemplated by this Section 2.04~~Person to whom such amounts would otherwise have been paid.

Appears in 1 contract

Samples: Merger Agreement (Alliance HealthCare Services, Inc)

Common use of Equity-Based Awards Clause in Contracts