Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior to the tenth anniversary date, as to not more than the following number of shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to the first anniversary date; shares from and after the first anniversary date and prior to the second anniversary date; shares from and after the second anniversary date and prior to the third anniversary date; shares from and after the third anniversary date and prior to the fourth anniversary date; shares from and after the fourth anniversary date and prior to the fifth anniversary date; and shares from and after the fifth anniversary date. The right of exercise provided herein shall be cumulative so that if the option is not exercised to the maximum extent permissible during any such period it shall be exercisable, in whole or in part, with respect to all shares not so purchased at any time during any subsequent period prior until the expiration or termination of this option. This option may not be exercised at any time after the tenth anniversary date. (b) Subject to the conditions hereof, this option shall be exercisable by the Employee giving written notice of exercise to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares. (c) If the Employee ceases to be employed by the Company or one of its subsidiaries for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of termination of the Employee’s employment may be exercised within the three-month period following the date on which the Employee ceased to be so employed, but in no event after the tenth anniversary date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employment. If the Employee dies during such three-month period, this option shall be exercisable by the Employee’s personal representatives, heirs or legatees to the same extent and during the same period that the Employee could have exercised this option on the date of his or her death. (d) If the Employee dies while an employee of the Company or any subsidiary of the Company, this option shall be exercisable, by the Employee’s personal representatives, heirs or legatees, to the same extent that the Employee could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months from the date of such death or the tenth anniversary date. (e) Notwithstanding any other provision hereof, this option may not be exercised to the extent such an exercise would violate Section 422(d)(1) of the Code, which provides that the aggregate fair market value (determined at the time the option is granted) of the Common Stock with respect to which incentive stock options are exercisable for the first time by the Employee during any calendar year (under all of the plans of the Company, its parent, if any, or its subsidiaries, if any) shall not exceed $100,000.
Appears in 1 contract
Samples: Incentive Stock Option Agreement (Higher One Holdings, Inc.)
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior to the tenth anniversary dateTenth Anniversary Date, as to not more than the following number of shares of Common Stock covered by this option during the respective periods set forth belowas follows: No (i) none of the shares of Common Stock covered by this option prior to _____________, (ii) 2.77777% of the shares of Common Stock covered by this option from and after __________________, and (iii) an additional 2.77777% of the shares of Common Stock covered by this option on each monthly anniversary of the Original Grant Date thereafter, until fully vested, provided, however, that in the event there is no corresponding monthly anniversary date in any given month, such additional amount shall vest on the last day of grant and prior such month (i.e., February 29 would correspond to January 31). Notwithstanding anything herein to the first anniversary date; shares from and after contrary, in the first anniversary date and prior event of a Change-in-Control (as defined in Section 11(b) of the Plan), any portion of the option granted to the second anniversary date; shares from Participant hereunder which would otherwise vest or become exercisable solely with the passage of time and after the second anniversary date Participant’s continued service as a director of the Company, shall immediately vest and prior to the third anniversary date; shares from and after the third anniversary date and prior to the fourth anniversary date; shares from and after the fourth anniversary date and prior to the fifth anniversary date; and shares from and after the fifth anniversary datebecome fully exercisable. The right of exercise provided herein shall be cumulative so that if the option is not exercised to the maximum extent permissible during any such period period, it shall be exercisable, in whole or in part, with respect to all shares not so purchased at any time during any subsequent period prior until to the expiration or termination of this option. This option may not be exercised at any time after the tenth anniversary dateTenth Anniversary Date.
(b) Subject to the conditions hereof, this option shall be exercisable by the Employee Participant giving written notice of exercise to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee Participant shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) If Subject to the Employee provisions of Section 11 of the Plan, if the Participant ceases to be employed by service as a director of the Company or one of its subsidiaries Company, for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of termination of the EmployeeParticipant’s employment service to the Company may be exercised within the three-month period following the date on which the Employee Participant ceased to be so employedserve, but in no event after the tenth anniversary dateTenth Anniversary Date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employmentservice to the Company. If the Employee Participant dies during such three-month period, this option shall be exercisable by the EmployeeParticipant’s personal representatives, heirs or legatees to the same extent and during the same period that the Employee Participant could have exercised this option on upon the date of his or her death.
(d) If the Employee Participant dies while an employee of the Company or any subsidiary serving as a director of the Company, this option shall be exercisable, by the EmployeeParticipant’s personal representatives, heirs or legatees, to the same extent that the Employee Participant could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months from the date of such death or ten years and one month from the tenth anniversary datedate of its grant.
(e) Notwithstanding any other provision hereof, this option may not be exercised to the extent such an exercise would violate Section 422(d)(1) of the Code, which provides that the aggregate fair market value (determined at the time the option is granted) of the Common Stock with respect to which incentive stock options are exercisable for the first time by the Employee during any calendar year (under all of the plans of the Company, its parent, if any, or its subsidiaries, if any) shall not exceed $100,000.
Appears in 1 contract
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior to the tenth anniversary date, as to not more than the following number of shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to the first anniversary date; shares from and after the first anniversary date and prior to the second anniversary date; shares from and after the second anniversary date and prior to the third anniversary date; shares from and after the third anniversary date and prior to the fourth anniversary date; shares from and after the fourth anniversary date and prior to the fifth anniversary date; and shares from and after the fifth anniversary date. The right of exercise provided herein shall be cumulative so that if the option is not exercised to the maximum extent permissible during any such period it shall be exercisable, in whole or in part, with respect to all shares not so purchased at any time during any subsequent period prior until to the expiration or termination of this option. This option may not be exercised at any time after the tenth anniversary date.
(b) Subject to the conditions hereof, this option shall be exercisable by the Employee giving written notice of exercise to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) If the Employee ceases to be employed by the Company or one of its subsidiaries for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of termination of the Employee’s employment may be exercised within the three-month period following the date on which the Employee ceased to be so employed, but in no event after the tenth anniversary date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employment. If the Employee dies during such three-month period, this option shall be exercisable by the Employee’s personal representatives, heirs or legatees to the same extent and during the same period that the Employee could have exercised this option on upon the date of his or her death.
(d) If the Employee dies while an employee of the Company or any subsidiary of the Company, this option shall be exercisable, by the Employee’s personal representatives, heirs or legatees, to the same extent that the Employee could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months from the date of such death or ten years and one month from the tenth anniversary datedate of its grant.
(e) Notwithstanding any other provision hereof, this option may not be exercised to the extent such an exercise would violate Section 422(d)(1) of the Code, which provides that the aggregate fair market value (determined at the time the option is granted) of the Common Stock with respect to which incentive stock options are exercisable for the first time by the Employee during any calendar year (under all of the plans of the Company, its parent, if any, or its subsidiaries, if any) shall not exceed $100,000.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Higher One Holdings, Inc.)
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior is exercisable for the first time with respect to the tenth following shares subject to the option: shares on the first anniversary date, as to not more than the following number of shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to the first anniversary dategrant; an additional shares from and after the first anniversary date and prior to on the second anniversary dateof the date of grant; an additional shares from and after the second anniversary date and prior to on the third anniversary dateof the date of grant; an additional shares from and after the third anniversary date and prior to on the fourth anniversary dateof the date of grant; shares from and so that, after the expiration of the fourth anniversary of the date and prior to of grant, the fifth anniversary date; and shares from and after option shall be exercisable in full. To the fifth anniversary date. The right of exercise provided herein extent not exercised installments shall be cumulative so that if the option is not exercised to the maximum extent permissible during any such period it and shall be exercisable, exercisable in whole or in part; provided that no partial exercise of the option shall be for less than 10 whole shares. This option shall become fully exercisable, with respect to all shares not so purchased at any time during any subsequent period prior until irrespective of the expiration or termination limitations set forth above, provided that the Employee has been in continuous employment since the date of this optiongrant, upon a Change in Control. This option may not be exercised at any time after the tenth anniversary dateof the date of grant.
(b) Subject to the conditions hereof, hereof this option shall be exercisable by the Employee giving written notice of exercise to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) If the Employee ceases to be employed by the Company or one of its subsidiaries for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of termination of the Employee’s employment may be exercised within the three-month period following the date on which the Employee ceased to be so employed, but in employed unless termination was due to “cause” as determined by the Board of Directors or the Employee is found by the Board of Directors to have disclosed trade secrets of the Company. In no event may this option be exercised after the tenth anniversary date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employment. If the Employee dies during such three-month period, this option shall be exercisable by the Employee’s personal representatives, heirs or legatees to the same extent and during the same period that the Employee could have exercised this option on the date of his or her death.
(d) If the Employee dies while an employee of the Company or any subsidiary of the Company, this option shall be exercisable, by the Employee’s Employees personal representatives, heirs or legatees, to the same extent that the Employee could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months one year from the date of such death or the tenth anniversary date.
(e) Notwithstanding The Employee agrees that he will not exercise this option, and that the Company will not be obligated to issue any other shares of Common Stock pursuant to this option agreement, if the exercise of the option or the issuance of such shares would constitute a violation by the Employee or by the Company of any provision of any law or regulation of any governmental authority or any stock exchange or transaction quotation system. Whether or not the issuance of shares covered by the Plan have been registered pursuant to the Securities Act of 1933, as amended, the Company may, at its election, require the Employee to give a representation in writing in form and substance satisfactory to the Company to the effect that he is acquiring such shares for his own account for investment and not with a view tot or for sale in connection with, the distribution of such shares or any part thereof. If any law or regulation requires the Company to take any action with respect to the shares specified in such notice, the time for delivery thereof, which would otherwise be as promptly as possible, shall be postponed for the period of time necessary to take such action.
(f) A “Change in Control” shall be deemed to have occurred as of the date that one or more of the following occurs:
(i) Individuals who, as of the date hereof, this option may not be exercised constitute the entire Board of Directors of the Company (“Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the extent date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the then Incumbent Directors shall be considered as though such individual was an exercise would violate Section 422(d)(1Incumbent Director, but excluding, for this purpose any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest, as such terms are used in Rule 14a-1 1 under the Securities Exchange Act of 1934, as amended (“Exchange Act”) or other actual or threatened solicitation of proxies or consents by or on behalf of any Person (as defined below) other than the Board;
(ii) The stockholders of the Company shall approve (A) any merger, consolidation or recapitalization of the Company (or, if the capital stock of the Company is affected, any subsidiary of the Company), or any sale, lease, or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the Codeassets of the Company (each of the foregoing being an “Acquisition Transaction”) where (1) the stockholders of the Company immediately prior to such Acquisition Transaction would not immediately after such Acquisition Transaction beneficially own, which provides that directly or indirectly, shares or other ownership interests representing in the aggregate fair market value fifty one percent (determined 51%) or more of (a) the then outstanding common stock or other equity interests of the corporation or other entity surviving or resulting from such merger, consolidation or recapitalization or acquiring such assets of the Company, as the case may be (the “Surviving Entity”) (or of its ultimate parent corporation or other entity, if any), and (b) the Combined Voting Power of the then outstanding Voting Securities of the Surviving Entity (or of its ultimate parent corporation or other entity, if any) or (2) the Incumbent Directors at the time of the option is grantedinitial approval of such Acquisition Transaction would not immediately after such Acquisition Transaction constitute a majority of the Board of Directors, or similar managing group of the Surviving Entity (or of its ultimate parent corporation or other entity, if any), or (B) any plan or proposal for the liquidation or dissolution of the Company; or
(iii) Any Person other than Xxxxx X. Xxxxx or Xxx Xxx Xxxxx shall be or become the beneficial owner (as defined in Rules 1 3d-3 and 1 3d-S under the Exchange Act), directly or indirectly, of securities of the Company representing in the aggregate more than forty percent (40%) of either (A) the then outstanding shares of common stock of the Company (‘Common Stock”) or (B) the Combined Voting Power of all then outstanding Voting Securities of the Company; provided, however, that notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred for purposes of this Subsection (iii):
(1) Solely as a result of an acquisition of securities by the Company which, by reducing the number of Common Stock or other Voting Securities outstanding, increases (a) the proportionate number of Common Stock beneficially owned by any Person to more than forty percent (40%) of the Common Stock with respect to which incentive stock options are exercisable for then outstanding, or (b) the first time proportionate voting power represented by the Employee during Voting Securities beneficially owned by any calendar year Person to more than forty percent (under all 40%) of the plans Combined Voting Power of all then outstanding Voting Securities; or
(2) Solely as a result of an acquisition of securities directly from the Company except for any conversion of a security that was not acquired directly from the Company,
(3) provided, further, that if any Person referred to in paragraph (1) or (2) of this Subsection (iii) shall thereafter become the beneficial owner of any additional Common Stock or other Voting Securities of the CompanyCompany (other than pursuant to a stock split, its parentstock dividend or similar transaction), if any, or its subsidiaries, if anythen a Change in Control shall be deemed to have occurred for purposes of this Subsection (iii).
(iv) shall not exceed $100,000.For purposes of this Section (f):
Appears in 1 contract
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option Option may be exercised, prior to the tenth 10th anniversary dateof the Award Date, as to not more than the following number of shares covered by this option during the respective periods set forth below: No shares from and after the date Number of grant and prior Months From Award Date Vested Percentage Number of NSO Shares 0 up to the first anniversary date; shares from and after the first anniversary date and prior to the second anniversary date; shares from and after the second anniversary date and prior to the third anniversary date; shares from and after the third anniversary date and prior to the fourth anniversary date; shares from and after the fourth anniversary date and prior to the fifth anniversary date; and shares from and after the fifth anniversary date. 12 [ ]% [ ] 12 through 10th [ ]% [ ] Anniversary of Award Date
(b) The right of exercise provided herein shall be cumulative so that if the option is Option were not exercised to the maximum extent permissible during any such period it shall be exercisable, in whole or in part, with respect to all shares not so purchased at any time during any subsequent period prior until to the expiration or termination of this optionOption. This option Option may not be exercised at any time after the tenth 10th anniversary dateof the Award Date.
(bc) Subject to the terms and conditions hereof, this option Option shall be exercisable by the Employee Participant giving written notice of exercise to the Company on a form acceptable to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor therefore and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee Participant shall be entitled to purchase less fewer than the number of shares covered herebypurchasable hereunder at the date of exercise, provided that no partial exercise of this option Option shall be for less fewer than 10 whole 100 shares.
(cd) If This Option shall become fully vested if Participant’s service on the Employee ceases to be employed Board of Directors is terminated due to: (i) retirement on or after the Participant’s sixty-fifth birthday; (ii) retirement on or after the Participant’s fifty-fifth birthday with the consent of the Company; (iii) retirement at any age on account of total and permanent disability as determined by the Company Company; or one (iv) death.
(e) Except as provided in Subsection (d), this Option shall terminate immediately if Participant’s service on the Board of its subsidiaries Directors is terminated for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that except in the event of termination for Cause, death, total and permanent disability, or the sale, merger or consolidation, or similar extraordinary transaction involving the Company, any portion of this option Option which was otherwise exercisable on the date of termination of the Employee’s employment such service may be exercised within the three-month period following the date on which the Employee ceased to be so employedof such termination, but in no event after the tenth 10th anniversary dateof the Award Date. Any such exercise may be made only to the extent of the number of shares subject to this option Option, which are purchasable upon the date of such termination termination.
(f) In the event of employment. If the Employee dies during such three-month perioddeath or total and permanent disability, this option Option shall be exercisable by the Employee’s personal representatives, heirs or legatees to the same extent and during the same period that the Employee could have exercised this option on within twelve months of the date of his death or her death.
(d) If such disability by the Employee dies while an employee of the Company or any subsidiary of the CompanyParticipant or, this option shall be exercisableif applicable, by the EmployeeParticipant’s personal representatives, heirs or legatees, to the same extent that the Employee Participant could have exercised this option Option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months from the date of such death or the tenth anniversary datesuch disability.
(e) Notwithstanding any other provision hereof, this option may not be exercised to the extent such an exercise would violate Section 422(d)(1) of the Code, which provides that the aggregate fair market value (determined at the time the option is granted) of the Common Stock with respect to which incentive stock options are exercisable for the first time by the Employee during any calendar year (under all of the plans of the Company, its parent, if any, or its subsidiaries, if any) shall not exceed $100,000.
Appears in 1 contract
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior to the tenth anniversary date, as to not more than the following number of shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to the first anniversary date; shares from and after the first anniversary date and prior to the second anniversary date; shares from and after the second anniversary date and prior to the third anniversary date; shares from and after the third anniversary date and prior to the fourth anniversary date; shares from and after the fourth anniversary date and prior to the fifth anniversary date; and shares from and after the fifth anniversary date. The right of exercise provided herein shall be cumulative so that if the this option is not exercised to the maximum extent permissible during any such period it shall be exercisable, in whole or in part, with respect to all shares not so purchased at any time during any subsequent period prior until to the expiration or termination of this option. This option may not be exercised at any time after the tenth anniversary date.
(b) Subject to the conditions hereof, this option shall be exercisable by the Employee Participant giving written notice of exercise to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor and accompanied by payment in accordance with Section 3 4 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee Participant shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) If Except as provided in Section 3(f) below, if the Employee ceases to be employed by Participant’s [director of] [employment with] with the Company [or one of its subsidiaries subsidiaries] terminates for any reason, including retirement but other than retirement, change of control, total disability or death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of such termination of the Employee’s employment [directorship] [employment] may be exercised within the three-month period following the date on which the Employee ceased to be so employedof termination, but in no event after the tenth anniversary date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employment. If the Employee Participant dies during such three-month period, any portion of this option that was exercisable by the Participant on the date of his or her death shall be exercisable by the Participant’s personal representatives, heirs or legatees for the remainder of such three-month period.
(d) If the Participant dies while [a director] [an employee or otherwise in the service of the Company or any subsidiary] of the Company, any portion of this option that was exercisable by the Participant on the date of death shall be exercisable by the Participant’s personal representatives, heirs or legatees until the tenth anniversary date.
(e) In the event the Participant’s [services as a director of] [employment with] the Company [or one of its subsidiaries] terminates by reason of the Participant’s (i) retirement or (ii) total disability, any portion of this option that was exercisable by the Participant on the date of such termination shall be exercisable by the Participant at any time prior to the tenth anniversary date. If the Participant dies before the tenth anniversary date, this option shall be exercisable by the EmployeeParticipant’s personal representatives, heirs or legatees until the tenth anniversary date, to the same extent and during the same period that the Employee Participant could have exercised this option on the date of his or her death.
. For purposes of this Section 3(e), “retirement” shall mean the Participant’s voluntary termination of [membership on the Board of Directors either (d) If the Employee dies while an employee of i)] [employment with the Company or any subsidiary of the Company] at age 62 or above and after a minimum of five years of service as an employee of the Company or any of its subsidiaries [or (ii) after a minimum of nine years of service as a director of the Company], and “total disability” shall mean a disability which, in the reasonable opinion of the Board of Directors, renders the Participant unable or incompetent to carry out the Participant’s duties, responsibilities and assignments for a period of ninety (90) consecutive days.
(f) In the event of the Participant’s voluntary termination of [membership on the Board of Directors] [employment with the Company or any subsidiary] of the Company, other than as a result of retirement or total disability, the Board of Directors may, by giving written notice to the Participant, provide that any portion of this option that was otherwise exercisable on the date of termination of the Participant’s [directorship] [employment] may be exercised within a one year period following the date on which the Participant ceased to be [a director] [so employed] as set forth in written notice to the Participant, but in no event after the tenth anniversary date. If the Participant dies during such period, this option shall be exercisable, exercisable by the EmployeeParticipant’s personal representatives, heirs or legatees, to the same extent that the Employee Participant could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months ten years from the date of its grant. [Employees only — In the event that a Participant ceases to be employed by the Company or a Company subsidiary, incurring a termination of employment, and immediately is engaged by the Company or a Company subsidiary as a consultant, any portion of this option that was not exercisable by the Participant on the date of such death termination shall immediately terminate on the date of the termination of employment and any portion of this option that was exercisable by the Participant on the date of such termination shall remain exercisable until the date determined under Section 3(c), (d), (e) or (g) hereof, as if the Participant did not incur a termination of employment until the Participant ceases to be a consultant.]
(g) [Employee only — In the event the Participant’s employment with the Company or one of the Company’s subsidiaries terminates by reason of a change of control, any portion of this option that was exercisable by the Participant on the date of such change of control shall be exercisable by the Participant at any time until the date one year after such change of control, but in no event after the tenth anniversary date. If the Participant dies during such one-year period, this option shall be exercisable by the Participant’s personal representatives, heirs or legatees for the remainder of the one-year period, to the same extent that the Participant could have exercised this option on the date of his or her death. The Participant’s employment will have terminated by reason of the change of control if (i) the Participant continues to be engaged as an employee or consultant with a Company subsidiary after the Company ceases to have effective voting control of such subsidiary, or (ii) the Participant ceases to be employed or engaged as a consultant by the Company or a Company subsidiary in connection with the sale or other disposition by the Company of all or substantially all of the assets of a component of the Company or a Company subsidiary, whether such component is a subsidiary, unit, work location, line of business or otherwise. The Committee, in its sole discretion, shall determine whether a Participant’s termination of employment is by reason of a change of control.] [Director only — In the event of a change in control of the Company, and the Participant is removed as a director of the Company in connection with the change in control, any portion of this option that was otherwise exercisable on the date of the Participant’s removal shall be exercisable by the Participant at any time until the first anniversary of such change in control, but in no event after the tenth anniversary date. If the Participant dies during such one-year period, this option shall be exercisable by the Participant’s personal representatives, heirs or legatees for the remainder of the one-year period or the tenth anniversary date.
, if earlier. For purposes of this Section 3(g), a “change in control” of the Company shall be deemed to have taken place if: (ei) Notwithstanding any other provision hereofa third person, this option may not be exercised to the extent such an exercise would violate including a “person” as defined in Section 422(d)(113(d)(3) of the CodeExchange Act becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) directly or indirectly, of securities of the Company representing twenty-five percent (25%) or more of the total number of votes that may be cast for the election of the directors of the Company; or (ii) as the result of, or in connection with, any tender or exchange offer, merger, consolidation or other business combination, sale of assets or one or more contested elections, or any combination of the foregoing transactions (a “Transaction”) the persons who were directors of the Company immediately prior to the Transaction shall cease to constitute a majority of the Board of Directors of the Company or of any successor to the Company.]
(h) For purposes of this Agreement, the Participant shall be deemed to have a terminated employment or incurred a termination of employment upon (i) the date the Participant ceases to be employed by, or to provide consulting services for, the Company, any Company subsidiary, or any corporation (or any of its subsidiaries) which provides assumes the Participant’s award in a transaction to which section 424(a) of the Code applies; or (ii) the date the Participant ceases to be a Board member, provided, however, that if the aggregate fair market value Participant (determined x), at the time of reference, is both an employee or consultant and a Board member, or (y) ceases to be engaged as an employee, consultant or Board member and immediately is engaged in another of such relationships with the option is granted) Company or any Company subsidiary (other than an employee who becomes a consultant), the Participant shall not be deemed to have a “termination of employment” until the last of the Common Stock with respect dates determined pursuant to which incentive stock options are exercisable subparagraphs (i) and (ii) above. The Committee, in its discretion, may determine whether any leave of absence constitutes a termination of employment for purposes of this Agreement and the first time by the Employee during any calendar year (under all of the plans of the Company, its parentimpact, if any, or its subsidiaries, if any) shall not exceed $100,000of any such leave of absence on this option.
Appears in 1 contract
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior to ten years from the tenth anniversary datedate of grant, as to not more than the following number of shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to the first anniversary date; ________ shares from and after the first anniversary date and prior to the second anniversary date; shares from and after the second anniversary date and prior to the third anniversary date; shares from and after the third anniversary date and prior to the fourth anniversary date; shares from and after the fourth anniversary date and prior to the fifth anniversary date; and shares from and after the fifth anniversary date. The right of exercise provided herein shall be cumulative so that if the option is not exercised to in full at the maximum extent permissible during any such period time it is exercised it shall be remain exercisable, in whole or in part, with respect to all remaining shares which were not so previously purchased at any time during any subsequent period prior until to the expiration or termination of this option. This option may not be exercised at any time after the tenth anniversary date.
(b) Subject to the conditions hereof, this option shall be exercisable by the Employee Optionee giving written notice of exercise to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee Optionee shall be entitled to purchase less than the number of shares covered hereby, ; provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) If the Employee ceases to be employed by the Company or one of its subsidiaries for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of termination of the Employee’s employment may be exercised within the three-month period following the date on which the Employee ceased to be so employed, but in no event after the tenth anniversary date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employment. If the Employee Optionee dies during such three-month period, this option shall be exercisable by the Employee’s personal representatives, heirs or legatees to the same extent and during the same period that the Employee could have exercised this option on the date before exercising all of his or her death.
(d) If the Employee dies while an employee of the Company or any subsidiary of the Companyunexercised options, this option shall be exercisable, by the Employee’s Optionee's personal representatives, heirs or legatees, to the same extent that the Employee Optionee could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months from the date of such death or ten years and one month from the tenth anniversary datedate of its grant.
(e) Notwithstanding any other provision hereof, this option may not be exercised to the extent such an exercise would violate Section 422(d)(1) of the Code, which provides that the aggregate fair market value (determined at the time the option is granted) of the Common Stock with respect to which incentive stock options are exercisable for the first time by the Employee during any calendar year (under all of the plans of the Company, its parent, if any, or its subsidiaries, if any) shall not exceed $100,000.
Appears in 1 contract
Samples: Non Qualified Stock Option Agreement (Pairgain Technologies Inc /Ca/)
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior is exercisable for the first time with respect to the tenth anniversary date, as following shares subject to not more than the following number of option: shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to on the first anniversary dateof the Grant Date; an additional shares from and after the first anniversary date and prior to on the second anniversary dateof the Grant Date; an additional shares from and after the second anniversary date and prior to on the third anniversary dateof the Grant Date; an additional shares from and after the third anniversary date and prior to on the fourth anniversary dateof the Grant Date; and an additional shares from and after the fourth anniversary date and prior to on the fifth anniversary dateof the Grant Date; and shares from and so that, after the expiration of the fifth anniversary dateof the Grant Date, the option shall be exercisable in full. The right of exercise provided herein To the extent not exercised, installments shall be cumulative so that if the option is not exercised to the maximum extent permissible during any such period it and shall be exercisable, exercisable in whole or in part; provided that no partial exercise of the option shall be for less than 10 whole shares. This option shall become fully exercisable, with respect to all shares not so purchased at any time during any subsequent period prior until irrespective of the expiration or termination of this optionlimitations set forth above, provided that the Employee has been in continuous employment since the Grant Date, upon a Change in Control. This option may not be exercised at any time after the tenth anniversary dateof the Grant Date.
(b) Subject to the conditions hereof, this option shall be exercisable by the Employee giving written notice of exercise to contacting the Company’s designated stock option administration representative (the “Representative”), specifying the number of shares to be purchased and the purchase exercise price to be paid therefor and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) If the Employee ceases to be employed by the Company or one of its subsidiaries for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of termination of the Employee’s employment may be exercised within the three-month period following the date on which the Employee ceased to be so employed, but in employed unless termination was due to “cause” as determined by the Board of Directors or the Employee is found by the Board of Directors to have disclosed trade secrets of the Company. In no event may this option be exercised after the tenth anniversary dateof the Grant Date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employment. If the Employee dies during such three-month period, this option shall be exercisable by the Employee’s personal representatives, heirs or legatees to the same extent and during the same period that the Employee could have exercised this option on the date of his or her death.
(d) If the Employee dies while an employee of the Company or any subsidiary of the Company, this option shall be exercisable, by the Employee’s personal representatives, heirs or legatees, to the same extent that the Employee could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months one year from the date of such death or the tenth anniversary dateof the Grant Date.
(e) Notwithstanding The Employee agrees not to exercise this option, and that the Company will not be obligated to issue any other shares of Common Stock pursuant to this option agreement, if the exercise of the option or the issuance of such shares would constitute a violation by the Employee or by the Company of any provision of any law or regulation of any governmental authority or any stock exchange or transaction quotation system. Whether or not the issuance of shares covered by the Plan have been registered pursuant to the Securities Act of 1933, as amended, the Company may, at its election, require the Employee to give a representation in writing in form and substance satisfactory to the Company to the effect that the Employee is acquiring such shares for the Employee’s own account for investment and not with a view to, or for sale in connection with, the distribution of such shares or any part thereof. If any law or regulation requires the Company to take any action with respect to the shares specified in such notice, the time for delivery thereof, which would otherwise be as promptly as possible, shall be postponed for the period of time necessary to take such action.
(f) A “Change in Control” shall be deemed to have occurred on the date that one or more of the following occurs:
(i) Individuals who, on the date hereof, this option may not be exercised constitute the entire Board of Directors of the Company (“Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the extent date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the then Incumbent Directors shall be considered as though such individual was an exercise would violate Section 422(d)(1Incumbent Director, but excluding, for this purpose any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest, as such terms are used in Rule 14a-11 under the Securities Exchange Act of 1934, as amended (“Exchange Act’) or other actual or threatened solicitation of proxies or consents by or on behalf of any Person (as defined below) other than the Board;
(ii) The stockholders of the Company shall approve (A) any merger, consolidation or recapitalization of the Company (or, if the capital stock of the Company is affected, any subsidiary of the Company), or any sale, lease, or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the Codeassets of the Company (each of the foregoing being an Acquisition Transaction”) where (1) the stockholders of the Company immediately prior to such Acquisition Transaction would not immediately after such Acquisition Transaction beneficially own, which provides that directly or indirectly, shares or other ownership interests representing in the aggregate fair market value fifty one percent (determined 51%) or more of (a) the then outstanding common stock or other equity interests of the corporation or other entity surviving or resulting from such merger, consolidation or recapitalization or acquiring such assets of the Company, as the case may be (the “Surviving Entity”) (or of its ultimate parent corporation or other entity, if any), and (b) the Combined Voting Power of the then outstanding Voting Securities of the Surviving Entity (or of its ultimate parent corporation or other entity, if any) or (2) the Incumbent Directors at the time of the option is grantedinitial approval of such Acquisition Transaction would not immediately after such Acquisition Transaction constitute a majority of the Board of Directors, or similar managing group, of the Surviving Entity (or of its ultimate parent corporation or other entity, if any), or (B) any plan or proposal for the liquidation or dissolution of the Company; or
(iii) Any Person other than Xxxxx X. Xxxxx or Xxx Xxx Xxxxx shall be or become the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of securities of the Company representing in the aggregate more than forty percent (40%) of either (A) the then outstanding shares of common stock of the Company (Common Stock”) or (B) the Combined Voting Power of all then outstanding Voting Securities of the Company; provided, however, that notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred for purposes of this Subsection (iii):
(1) Solely as a result of an acquisition of securities by the Company which, by reducing the number of Common Stock or other Voting Securities outstanding, increases (a) the proportionate number of Common Stock beneficially owned by any Person to more than forty percent (40%) of the Common Stock with respect to which incentive stock options are exercisable for then outstanding, or (b) the first time proportionate voting power represented by the Employee during Voting Securities beneficially owned by any calendar year Person to more than forty percent (under all 40%) of the plans Combined Voting Power of all then outstanding Voting Securities; or
(2) Solely as a result of an acquisition of securities directly from the Company except for any conversion of a security that was not acquired directly from the Company,
(3) provided, further, that if any Person referred to in paragraph (1) or (2) of this Subsection (iii) shall thereafter become the beneficial owner of any additional Common Stock or other Voting Securities of the CompanyCompany (other than pursuant to a stock split, its parentstock dividend or similar transaction), if any, or its subsidiaries, if anythen a Change in Control shall be deemed to have occurred for purposes of this Subsection (iii).
(iv) shall not exceed $100,000.For purposes of this Section (f):
Appears in 1 contract
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior is exercisable for the first time with respect to the tenth following shares subject to the option: shares on the first anniversary date, as to not more than the following number of shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to the first anniversary dategrant; an additional shares from and after the first anniversary date and prior to on the second anniversary dateof the date of grant; an additional shares from and after the second anniversary date and prior to on the third anniversary dateof the date of grant; an additional shares from and after the third anniversary date and prior to on the fourth anniversary dateof the date of grant; and an additional shares from and after the fourth anniversary date and prior to on the fifth anniversary dateof the date of grant; and shares from and so that, after the expiration of the fifth anniversary dateof the date of grant, the option shall be exercisable in full. The right of exercise provided herein To the extent not exercised, installments shall be cumulative so that if the option is not exercised to the maximum extent permissible during any such period it and shall be exercisable, exercisable in whole or in part; provided that no partial exercise of the option shall be for less than 10 whole shares. This option shall become fully exercisable, with respect to all shares not so purchased at any time during any subsequent period prior until irrespective of the expiration or termination limitations set forth above, provided that the Employee has been in continuous employment since the date of this optiongrant, upon a Change in Control. This option may not be exercised at any time after the tenth anniversary dateof the date of grant.
(b) Subject to the conditions hereof, this option shall be exercisable by the Employee giving written notice of exercise to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) If the Employee ceases to be employed by the Company or one of its subsidiaries for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of termination of the Employee’s employment may be exercised within the three-month period following the date on which the Employee ceased to be so employed, but in employed unless termination was due to “cause” as determined by the Board of Directors or the Employee is found by the Board of Directors to have disclosed trade secrets of the Company. In no event may this option be exercised after the tenth anniversary date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employment. If the Employee dies during such three-month period, this option shall be exercisable by the Employee’s personal representatives, heirs or legatees to the same extent and during the same period that the Employee could have exercised this option on the date of his or her death.
(d) If the Employee dies while an employee of the Company or any subsidiary of the Company, this option shall be exercisable, by the Employee’s personal representatives, heirs or legatees, to the same extent that the Employee could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months one year from the date of such death or the tenth anniversary date.
(e) Notwithstanding The Employee agrees that he will not exercise this option, and that the Company will not be obligated to issue any other provision hereof, shares of Common Stock pursuant to this option may agreement, if the exercise of the option or the issuance of such shares would constitute a violation by the Employee or by the Company of any provision of any law or regulation of any governmental authority or any stock exchange or transaction quotation system. Whether or not be exercised the issuance of shares covered by the Plan have been registered pursuant to the extent Securities Act of 1933, as amended, the Company may, at its election, require the Employee to give a representation in writing in form and substance satisfactory to the Company to the effect that he is acquiring such an exercise would violate Section 422(d)(1) shares for his own account for investment and not with a view to, or for sale in connection with, the distribution of such shares or any part thereof. If any law or regulation requires the Code, which provides that the aggregate fair market value (determined at the time the option is granted) of the Common Stock Company to take any action with respect to the shares specified in such notice, the time for delivery thereof, which incentive stock options are exercisable would otherwise be as promptly as possible, shall be postponed for the first period of time necessary to take such action.
(f) A “Change in Control’ shall be deemed to have occurred as of the date that one or more of the following occurs:
(i) Individuals who, as of the date hereof, constitute the entire Board of Directors of the Company (‘Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof whose election, or nomination for election by the Employee during Company’s stockholders, was approved by a vote of at least a majority of the then Incumbent Directors shall be considered as though such individual was an Incumbent Director, but excluding, for this purpose any calendar year such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest, as such terms are used in Rule 14a-11 under the Securities Exchange Act of 1934, as amended (under “Exchange Act”) or other actual or threatened solicitation of proxies or consents by or on behalf of any Person (as defined below) other than the Board;
(ii) The stockholders of the Company shall approve (A) any merger, consolidation or recapitalization of the Company (or, if the capital stock of the Company is affected, any subsidiary of the Company), or any sale, lease, or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the plans assets of the Company (each of the foregoing being an “Acquisition Transaction”) where (1) the stockholders of the Company immediately prior to such Acquisition Transaction would not immediately after such Acquisition Transaction beneficially own, directly or indirectly, shares or other ownership interests representing in the aggregate fifty one percent (51%) or more of (a) the then outstanding common stock or other equity interests of the corporation or other entity surviving or resulting from such merger, consolidation or recapitalization or acquiring such assets of the Company, as the case may be (the ‘Surviving Entity”) (or of its parentultimate parent corporation or other entity, if any), and (b) the Combined Voting Power of the then outstanding Voting Securities of the Surviving Entity (or of its subsidiariesultimate parent corporation or other entity, if any) shall or (2) the Incumbent Directors at the time of the initial approval of such Acquisition Transaction would not exceed $100,000.immediately after such Acquisition Transaction constitute a majority of the Board of Directors, or similar managing group, of the Surviving Entity (or of its ultimate parent corporation or other entity, if any), or (B) any plan or proposal for the liquidation or dissolution of the Company; or
Appears in 1 contract
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior is exercisable for the first time with respect to the tenth anniversary date, as following shares subject to not more than the following number of option: shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to on the first anniversary dateof the Grant Date; an additional shares from and after the first anniversary date and prior to on the second anniversary dateof the Grant Date; an additional shares from and after the second anniversary date and prior to on the third anniversary dateof the Grant Date; an additional shares from and after the third anniversary date and prior to on the fourth anniversary dateof the Grant Date; and an additional shares from and after the fourth anniversary date and prior to on the fifth anniversary dateof the Grant Date; and shares from and so that, after the expiration of the fifth anniversary dateof the Grant Date, the option shall be exercisable in full. The right of exercise provided herein To the extent not exercised, installments shall be cumulative so that if the option is not exercised to the maximum extent permissible during any such period it and shall be exercisable, exercisable in whole or in part; provided that no partial exercise of the option shall be for less than 10 whole shares. This option shall become fully exercisable, with respect to all shares not so purchased at any time during any subsequent period prior until irrespective of the expiration or termination of this optionlimitations set forth above, provided that the Employee has been in continuous employment since the Grant Date, upon a Change in Control. This option may not be exercised at any time after the tenth anniversary dateof the Grant Date.
(b) Subject to the conditions hereof, this option shall be exercisable by the Employee giving written notice of exercise to contacting the Company’s designated stock option administration representative (the “Representative”), specifying the number of shares to be purchased and the purchase exercise price to be paid therefor and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) If the Employee ceases to be employed by the Company or one of its subsidiaries for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of termination of the Employee’s Employees employment may be exercised within the three-month period following the date on which the Employee ceased to be so employed, but in employed unless termination was due to cause’ as determined by the Board of Directors or the Employee is found by the Board of Directors to have disclosed trade secrets of the Company. In no event may this option be exercised after the tenth anniversary dateof the Grant Date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employment. If the Employee dies during such three-month period, this option shall be exercisable by the Employee’s personal representatives, heirs or legatees to the same extent and during the same period that the Employee could have exercised this option on the date of his or her death.
(d) If the Employee dies while an employee of the Company or any subsidiary of the Company, this option shall be exercisable, by the Employee’s personal representatives, heirs or legatees, to the same extent that the Employee could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months one year from the date of such death or the tenth anniversary dateof the Grant Date.
(e) Notwithstanding The Employee agrees not to exercise this option, and that the Company will not be obligated to issue any other shares of Common Stock pursuant to this option agreement, if the exercise of the option or the issuance of such shares would constitute a violation by the Employee or by the Company of any provision of any law or regulation of any governmental authority or any stock exchange or transaction quotation system. Whether or not the issuance of shares covered by the Plan have been registered pursuant to the Securities Act of 1933, as amended, the Company may, at its election, require the Employee to give a representation in writing in form and substance satisfactory to the Company to the effect that the Employee is acquiring such shares for the Employee’s own account for investment and not with a view to, or for sale in connection with, the distribution of such shares or any part thereof. If any law or regulation requires the Company to take any action with respect to the shares specified in such notice, the time for delivery thereof, which would otherwise be as promptly as possible, shall be postponed for the period of time necessary to take such action.
(f) A “Change in Control” shall be deemed to have occurred on the date that one or more of the following occurs:
(i) Individuals who, on the date hereof, this option may not be exercised constitute the entire Board of Directors of the Company (“Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the extent date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the then Incumbent Directors shall be considered as though such individual was an exercise would violate Section 422(d)(1Incumbent Director, but excluding, for this purpose any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest, as such terms are used in Rule 14a-1 1 under the Securities Exchange Act of 1934, as amended (“Exchange Act”) or other actual or threatened solicitation of proxies or consents by or on behalf of any Person (as defined below) other than the Board;
(ii) The stockholders of the Company shall approve (A) any merger, consolidation or recapitalization of the Company (or, if the capital stock of the Company is affected, any subsidiary of the Company), or any sale, lease, or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the Codeassets of the Company (each of the foregoing being an “Acquisition Transaction”) where (I) the stockholders of the Company immediately prior to such Acquisition Transaction would not immediately after such Acquisition Transaction beneficially own, which provides that directly or indirectly, shares or other ownership interests representing in the aggregate fair market value fifty one percent (determined 51%) or more of (a) the then outstanding common stock or other equity interests of the corporation or other entity surviving or resulting from such merger, consolidation or recapitalization or acquiring such assets of the Company, as the case may be (the Surviving Entity (or of its ultimate parent corporation or other entity, if any), and (b) the Combined Voting Power of the then outstanding Voting Securities of the Surviving Entity (or of its ultimate parent corporation or other entity, if any) or (2) the Incumbent Directors at the time of the option is grantedinitial approval of such Acquisition Transaction would not immediately after such Acquisition Transaction constitute a majority of the Board of Directors, or similar managing group, of the Surviving Entity (or of its ultimate parent corporation or other entity, if any), or (B) any plan or proposal for the liquidation or dissolution of the Company; or
(iii) Any Person other than Xxxxx X. Xxxxx or Xxx Xxx Xxxxx shall be or become the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of securities of the Company representing in the aggregate more than forty percent (40%) of either (A) the then outstanding shares of common stock of the Company (“Common Stock”) or (B) the Combined Voting Power of all then outstanding Voting Securities of the Company; provided, however, that notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred for purposes of this Subsection (iii):
(1) Solely as a result of an acquisition of securities by the Company which, by reducing the number of Common Stock or other Voting Securities outstanding, increases (a) the proportionate number of Common Stock beneficially owned by any Person to more than forty percent (40%) of the Common Stock with respect to which incentive stock options are exercisable for then outstanding, or (b) the first time proportionate voting power represented by the Employee during Voting Securities beneficially owned by any calendar year Person to more than forty percent (under all 40%) of the plans Combined Voting Power of all then outstanding Voting Securities; or
(2) Solely as a result of an acquisition of securities directly from the Company except for any conversion of a security that was not acquired directly from the Company,
(3) provided, further, that if any Person referred to in paragraph (I) or (2) of this Subsection (iii) shall thereafter become the beneficial owner of any additional Common Stock or other Voting Securities of the CompanyCompany (other than pursuant to a stock split, its parentstock dividend or similar transaction), if any, or its subsidiaries, if anythen a Change in Control shall be deemed to have occurred for purposes of this Subsection (iii).
(iv) shall not exceed $100,000.For purposes of this Section (f):
Appears in 1 contract
Exercise of Option and Provisions for Termination. (a) Except as otherwise provided herein and subject to the right of cumulation provided herein, this option may be exercised, prior is exercisable for the first time with respect to the tenth following shares subject to the option: shares on the first anniversary date, as to not more than the following number of shares covered by this option during the respective periods set forth below: No shares from and after the date of grant and prior to the first anniversary dategrant; an additional shares from and after the first anniversary date and prior to on the second anniversary dateof the date of grant; an additional shares from and after the second anniversary date and prior to on the third anniversary dateof the date of grant; an additional shares from and after the third anniversary date and prior to on the fourth anniversary dateof the date of grant; and an additional shares from and after the fourth anniversary date and prior to on the fifth anniversary dateof the date of grant; and shares from and so that, after the expiration of the fifth anniversary dateof the date of grant, the option shall be exercisable in full. The right of exercise provided herein To the extent not exercised, installments shall be cumulative so that if the option is not exercised to the maximum extent permissible during any such period it and shall be exercisable, exercisable in whole or in part; provided that no partial exercise of the option shall be for less than 10 whole shares. This option shall become fully exercisable, with respect to all shares not so purchased at any time during any subsequent period prior until irrespective of the expiration or termination limitations set forth above, provided that the Employee has been in continuous employment since the date of this optiongrant, upon a Change in Control. This option may not be exercised at any time after the tenth anniversary dateof the date of grant.
(b) Subject to the conditions hereof, this option shall be exercisable by the Employee giving written notice of exercise to the Company, specifying the number of shares to be purchased and the purchase price to be paid therefor and accompanied by payment in accordance with Section 3 hereof. Such exercise shall be effective upon receipt by the Treasurer of the Company of the written notice together with the required payment. The Employee shall be entitled to purchase less than the number of shares covered hereby, provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) If the Employee ceases to be employed by the Company or one of its subsidiaries for any reason, including retirement but other than death, this option shall immediately terminate; provided, however, that any portion of this option which was otherwise exercisable on the date of termination of the Employee’s employment may be exercised within the three-month period following the date on which the Employee ceased to be so employed, but in employed unless termination was due to cause” as determined by the Board of Directors or the Employee is found by the Board of Directors to have disclosed trade secrets of the Company. In no event may this option be exercised after the tenth anniversary date. Any such exercise may be made only to the extent of the number of shares subject to this option which are purchasable upon the date of such termination of employment. If the Employee dies during such three-month period, this option shall be exercisable by the Employee’s Employees personal representatives, heirs or legatees to the same extent and during the same period that the Employee could have exercised this option on the date of his or her death.
(d) If the Employee dies while an employee of the Company or any subsidiary of the Company, this option shall be exercisable, by the Employee’s personal representatives, heirs or legatees, to the same extent that the Employee could have exercised this option on the date of his or her death. This option or any unexercised portion hereof shall terminate unless so exercised prior to the earlier of the expiration of six months one year from the date of such death or the tenth anniversary date.
(e) Notwithstanding The Employee agrees that he will not exercise this option, and that the Company will not be obligated to issue any other shares of Common Stock pursuant to this option agreement, if the exercise of the option or the issuance of such shares would constitute a violation by the Employee or by the Company of any provision of any law or regulation of any governmental authority or any stock exchange or transaction quotation system. Whether or not the issuance of shares covered by the Plan have been registers pursuant to the Securities Act of 1933, as amended, the Company may, at its election, require the Employee to give a representation in writing in form and substance satisfactory to the Company to the effect that he is acquiring such shares for his own account for investment and not with a view to, or for sale in connection with, the distribution of such shares or any part thereof. If any law or regulation requires the Company to take any action with respect to the shares specified in such notice, the time for delivery thereof, which would otherwise be as promptly as possible, shall be postponed for the period of time necessary to take such action.
(f) A “Change in Control” shall be deemed to have occurred as of the date that one or more of the following occurs:
(i) Individuals who, as of the date hereof, this option may not be exercised constitute the entire Board of Directors of the Company (Incumbent Directors”) cease for any reason to constitute at least a majority of the Board; provided, however, that any individual becoming a director subsequent to the extent date hereof whose election, or nomination for election by the Company’s stockholders, was approved by a vote of at least a majority of the then Incumbent Directors shall be considered as though such individual was an exercise would violate Section 422(d)(1Incumbent Director, but excluding, for this purpose any such individual whose initial assumption of office occurs as a result of either an actual or threatened election contest, as such terms are used in Rule 14a-1l under the Securities Exchange Act of 1934, as amended (Exchange Act”) or other actual or threatened solicitation of proxies or consents by or on behalf of any Person (as defined below) other than the Board;
(ii) The stockholders of the Company shall approve (A) any merger, consolidation or recapitalization of the Company (or, if the capital stock of the Company is affected, any subsidiary of the Company), or any sale, lease, or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the Codeassets of the Company (each of the foregoing being an Acquisition Transaction”) where (1) the stockholders of the Company immediately prior to such Acquisition Transaction would not immediately after such Acquisition Transaction beneficially own, which provides that directly or indirectly, shares or other ownership interests representing in the aggregate fair market value fifty one percent (determined 51%) or more of (a) the then outstanding common stock or other equity interests of the corporation or other entity surviving or resulting from such merger, consolidation or recapitalization or acquiring such assets of the Company, as the case may be (the ‘Surviving Entity”) (or of its ultimate parent corporation or other entity, if any), and (b) the Combined Voting Power of the then outstanding Voting Securities of the Surviving Entity (or of its ultimate parent corporation or other entity, if any) or (2) the Incumbent Directors at the time of the option is grantedinitial approval of such Acquisition Transaction would not immediately after such Acquisition Transaction constitute a majority of the Board of Directors, or similar managing group of the Surviving Entity (or of its ultimate parent corporation or other entity, if any), or (B) any plan or proposal for the liquidation or dissolution of the Company; or
(iii) Any Person other than Xxxxx X. Xxxxx or Xxx Xxx Xxxxx shall be or become the beneficial owner (as defined in Rules 1 3d-3 and 1 3d-5 under the Exchange Act), directly or indirectly, of securities of the Company representing in the aggregate more than forty percent (40%) of either (A) the then outstanding shares of common stock of the Company (“Common Stock”) or (B) the Combined Voting Power of all then outstanding Voting Securities of the Company; provided, however, that notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred for purposes of this Subsection (iii):
(1) Solely as a result of an acquisition of securities by the Company which, by reducing the number of Common Stock or other Voting Securities outstanding, increases (a) the proportionate number of Common Stock beneficially owned by any Person to more than forty percent (40%) of the Common Stock with respect to which incentive stock options are exercisable for then outstanding, or (b) the first time proportionate voting power represented by the Employee during Voting Securities beneficially owned by any calendar year Person to more than forty percent (under all 40%) of the plans Combined Voting Power of all then outstanding Voting Securities; or
(2) Solely as a result of an acquisition of securities directly from the Company except for any conversion of a security that was not acquired directly from the Company,
(3) provided, further, that if any Person referred to in paragraph (I) or (2) of this Subsection (iii) shall thereafter become the beneficial owner of any additional Common Stock or other Voting Securities of the CompanyCompany (other than pursuant to a stock split, its parentstock dividend or similar transaction), if any, or its subsidiaries, if anythen a Change in Control shall be deemed to have occurred for purposes of this Subsection (iii).
(iv) shall not exceed $100,000.For purposes of this Section (f):
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