Mergers, Reorganizations, Etc. In the event of any merger, amalgamation, statutory share exchange or other business combination or reorganization of the Company, on the one hand, with any of its Subsidiaries (including for this purpose VMware and its subsidiaries), on the other hand, the Stockholders shall, to the extent necessary, as determined by the Company, execute a stockholders agreement with terms that are substantially equivalent (to the extent practicable) to, mutatis mutandis, such terms of this Agreement.
Mergers, Reorganizations, Etc. In the event of a merger, consolidation, plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization or liquidation to which the Company is a party or any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company (each, a “Transaction”), the Company shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating the Option:
7.1 The Option shall remain in effect in accordance with its terms.
7.2 The Option shall be converted into an option to purchase stock in one or more of the corporations, including the Company, that are the surviving or acquiring corporations in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Options shall be determined by the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation(s) to be held by holders of shares of the Company following the Transaction. The converted Option shall be vested only to the extent that the vesting requirements relating to the Option have been satisfied.
7.3 The Company shall provide a period of 30 days or less before the completion of the Transaction during which the Option may be exercised to the extent then exercisable, and upon the expiration of that period, the Option shall immediately terminate. The Company may, in its sole discretion, accelerate the exercisability of the Option so that the Option is exercisable in full during that period.
Mergers, Reorganizations, Etc. In the event of a merger, consolidation, plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization or liquidation to which the Company is a party, any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company, or the transfer by one or more shareholders, in one transfer or several related transfers, of 50% of more of the Common Stock outstanding on the date of such transfer (or the first of such related transfers) to persons, other than wholly-owned subsidiaries or family trusts, who were not shareholders of the Company prior to the first such transfer (each, a "Transaction"), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating outstanding options under the Plan prior to the consummation of the Transaction:
6.1 The Option shall remain in effect in accordance with their terms.
6.2 The Option shall be converted into options to purchase stock in one or more of the corporations, including the Company, that are the surviving or acquiring corporations in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Options shall be determined by the Board of Directors of the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation(s) to be held by holders of shares of the Company following the Transaction. The converted Options shall be vested only to the extent that the vesting requirements relating to the Options have been satisfied.
6.3 The Company shall provide a period of a least 10 days before the completion of the Transaction during which the Option may be exercised, to the extent then exercisable, and upon the expiration of that period, the Option shall immediately terminate. The Company may, its sole discretion, accelerate the exercisability of the Options so that the Options is exercisable in full during that period. Notwithstanding anything in this Agreement to the contrary, any proposed merger, acquisition, subsidiary merger, issuance of stock, change of control or other transaction that might qualify as a Transaction that occurs on or before June 30, 2002 and involves VitalStream, Inc. as a party shall not be deemed to be a Transaction...
Mergers, Reorganizations, Etc. If, while any unvested PSUs are outstanding, there shall occur a merger, consolidation, amalgamation or plan of exchange, in each case involving the Company pursuant to which outstanding Common Shares are converted into cash or other stock, securities or property (each, a "Transaction"), (i) all outstanding PSUs as to which the applicable Hurdle performance requirement set forth in Section 2 has not been satisfied as of the closing of the Transaction shall be forfeited and cancelled and (ii) the Board of Directors, may, in its sole discretion, provide that the remaining PSUs shall be treated in accordance with any of the following alternatives:
(a) The remaining PSUs shall be converted into performance share units to acquire stock of the surviving or acquiring corporation in the Transaction (unless otherwise accelerated as determined by the Board of Directors in its sole discretion) and shall be subject to continued employment of Recipient by the Company or any acquiring or surviving company through such vesting date, with the amount and type of shares subject thereto to be conclusively determined by the Board of Directors, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation to be held by holders of common shares of the Company following the Transaction, and disregarding fractional shares, and the performance measures adjusted to reflect the circumstances of the Company or any acquiring or surviving corporation as conclusively determined by the Board of Directors;
(b) The remaining PSUs shall be cancelled effective immediately prior to the consummation of the Transaction, and, in full consideration of the cancellation, the surviving company shall pay to Recipient upon the completion of the Performance Period, with payment subject to continued employment of Recipient by the Company or any acquiring or surviving company through such date, an amount in cash, for each remaining PSU, equal to the value, as determined by the Board of Directors, of the Common Shares subject to the unvested PSUs at the time of closing of the Transaction, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation to be held by holders of Common Shares of the Company following the Transaction or other consideration paid in the Transaction to holders of C...
Mergers, Reorganizations, Etc. In the event of a merger, consolidation or plan of exchange to which the Company is a party or a sale of all or substantially all of the Company’s assets (each, a “Transaction”), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating the Option:
4.2-1 The Option shall remain in. effect in accordance with their terms. If the stockholders of the Company receive capital stock of another corporation (“Exchange Stock”) in exchange for their shares of Class A Common Stock in any Transaction, all options granted hereunder shall be converted into options to purchase shares of Exchange Stock. The amount and price of converted options shall be determined by adjusting the amount and price of the options granted hereunder in the same proportion as used for determining the number of shares of Exchange Stock the holders of the Class A Common Stock receive in such Transaction. Unless otherwise determine by the Board of Directors, the converted options shall be vested only to the extent that the vesting requirements relating to options granted hereunder have been satisfied.
4.2-2 If the stockholders of the Company receive Exchange Stock in exchange for their shares of Class A Common Stock in any Transaction, the Option shall be converted into an option to purchase shares of Exchange Stock. The amount and price of the converted option shall be determined by adjusting the amount and price of the Option in the same proportion as used for determining the number of shares of Exchange Stock the holders of the Class A Common Stock receive in such Transaction. Unless otherwise determined by the Board of Directors, the converted options shall be vested only to the extent that the vesting requirements relating to the Option has been satisfied.
4.2-3 The Board of Directors may provide a 30-day period prior to the consummation of the Transaction during which the Optionee shall have the right to exercise the Option to the extent then exercisable and upon the expiration of which 30-day period the Option shall immediately terminate.
Mergers, Reorganizations, Etc. In the event of a merger, consolidation or plan of exchange to which the Company is a party or a sale of all or substantially all of the Company’s assets (each, a “Transaction”), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating this award of Restricted Stock Units:
(i) This award shall remain in effect in accordance with its terms.
(ii) This award shall be assumed or substituted by the surviving corporation or its parent with an award with substantially the same terms as this award. The amount and type of securities subject thereto shall be determined by the Board of Directors of the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation to be issued to holders of shares of the Company.
(iii) If this award is not continued in accordance with paragraph 7(b)(i) or assumed or substituted in accordance with paragraph 7(b)(ii), this award shall be accelerated and cancelled after payment to the Executive in Shares of an amount equal to the Restricted Stock Units subject to this award at the time of the Transaction.
Mergers, Reorganizations, Etc. In the event that the Company at any ----------------------------- time proposes to sell substantially all of its assets, merge into, consolidate with or to enter into any other reorganization in which the Company is not the surviving corporation, this Option shall terminate upon the effective date of such transaction unless provision is made in writing in connection with such transaction for (a) the assumption of this Option or the substitution of this Option of a new option or comparable value covering shares of a successor corporation, with the appropriate adjustments as to the number and kind of shares and the Exercise Price, in which event this Option or the new option substituted therefor shall continue in the manner and under the terms so provided, or (b) the substitution for this Option of a program or plan to provide rights to Optionee to receive, on exercise of such rights, the type and amount of consideration Optionee would have received had he or she exercised this Option prior to such transaction and less the aggregate Exercise Price therefor.
Mergers, Reorganizations, Etc. In the event of a merger, consolidation, plan of exchange, acquisition of property or stock, split-up, split-off, spin-off, reorganization or liquidation to which the Company is a party or any sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the assets of the Company (each, a “Transaction”), the Company shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating the Option:
8.1 The Option shall remain in effect in accordance with its terms.
8.2 The Option shall be converted into an option to purchase stock or other equity interest in one or more of the corporations or other entities, including the Company, that are the surviving or acquiring entities in the Transaction. The amount, type of securities subject thereto and exercise price of the converted Option shall be determined by the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of, or other equity interest in, the surviving entity or entities to be held by holders of shares of the Company following the Transaction. The converted Option shall be vested only to the extent that the vesting requirements relating to the Option have been satisfied. Optionee understands that if the Option is converted pursuant to this Section 8.2 into a right to acquire an equity interest in an entity other than a corporation, the Option will cease to qualify as an Incentive Stock Option within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
8.3 The Company shall provide a period of 30 days or less before the completion of the Transaction during which the Option may be exercised to the extent then exercisable, and upon the expiration of that period, the Option shall immediately terminate. The Company may, in its sole discretion, accelerate the exercisability of the Option so that the Option is exercisable in full during that period.
Mergers, Reorganizations, Etc. In the event of a merger, consolidation or plan of exchange to which the Company is a party or a sale of all or substantially all of the Company’s assets or of more than 50% of the Company's outstanding shares of Common Stock (each, a “Transaction”), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating the Option, in each case provided that the Transaction is consummated:
4.2-1 The Option shall remain in effect in accordance with its terms.
4.2-2 The Option shall be assumed, converted or exchanged into an option to purchase stock in the corporation that is the surviving or acquiring corporation in the Transaction (or in a parent corporation). The amount and type of securities subject thereto and exercise price of the assumed, converted or exchanged option shall be determined by the Board of Directors of the Company, taking into account the relative values of the companies involved in the Transaction and the exchange rate, if any, used in determining shares of the surviving corporation to be issued to holders of shares of the Company. Conversions shall be made without change in the total price applicable to the unexercised portion of the Option and with a corresponding adjustment in the Option price per share and shall neither (i) make the ratio, immediately after the event, of the Option price per share to the fair market value per share more favorable to the Optionee than that ratio immediately before the event nor (ii) make the aggregate spread, immediately after the event, between the fair market value of shares as to which the Option is exercisable and the Option price of such shares more favorable to the Optionee than that aggregate spread immediately before the event. Unless otherwise determined by the Board of Directors, the converted option shall be exercisable only to the extent that the exercisability requirements relating to the Option have been satisfied.
4.2-3 The Board of Directors shall provide a 30-day period before the consummation of the Transaction during which the Option may be exercised to the extent then exercisable, and, upon the expiration of such 30-day period, the Option shall immediately terminate to the extent not exercised. The Board of Directors may, in it sole discretion, accelerate the exercisability of the Option so that it is exercisable in full during such 30-day period. The Board of Directors may, in i...
Mergers, Reorganizations, Etc. In the event of a merger, consolidation or plan of exchange to which the Company is a party or a sale of all or substantially all of the Company’s assets (each, a “Transaction”), the Board of Directors shall, in its sole discretion and to the extent possible under the structure of the Transaction, select one of the following alternatives for treating the SAR:
4.2-1 The SAR shall remain in effect in accordance with their terms.
4.2-2 If the stockholders of the Company receive capital stock of another corporation (“Exchange Stock”) in exchange for their shares of Class A Common Stock in any Transaction, appropriate adjustment shall be made by the Board of Directors in the number of SARs and/or the amount payable on exercise of the SAR. Unless otherwise determine by the Board of Directors, the SAR shall be vested only to the extent that the vesting requirements relating to the SAR has been satisfied.
4.2-3 The Board of Directors may provide a 30-day period prior to the consummation of the Transaction during which the Recipient shall have the right to exercise the SAR to the extent then exercisable and upon the expiration of which 30-day period the SAR shall immediately terminate.
