Options and Warrants. As of the Effective Time, each outstanding option, warrant or other right to acquire shares of Company Common Stock then outstanding (each, a "Company Stock Option"), whether or not then exercisable, shall be assumed by Parent and converted into an option, warrant or other right to purchase shares of Parent Common Stock in accordance with this Section 2.01(d). Each Company Stock Option so converted shall continue to have, and be subject to, the same material terms and conditions (including vesting schedule) as set forth in the applicable agreement pursuant to which such Company Stock Option was issued immediately prior to the Effective Time, except that, as of the Effective Time, (i) each Company Stock Option shall be exercisable for that number of whole shares of Parent Common Stock equal to the product of the number of shares of Company Common Stock that were issuable subject to such Company Stock Option immediately prior to the Effective Time multiplied by 0.0472, rounded to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the shares of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstanding.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Opticare Health Systems Inc), Agreement and Plan of Merger (Refac)
Options and Warrants. (a) As of the Effective Time, each outstanding option, warrant all options to purchase Common Shares issued by the Company pursuant to its stock option plans or other right to acquire shares of Company Common Stock then outstanding otherwise (each, a "Company Stock OptionOptions"), whether vested or not then exercisableunvested, and the Company's stock option plan(s) under which Options have been granted shall be assumed by Parent and converted into the Buyer. Immediately after the Effective Time, each Option outstanding immediately prior to the Effective Time shall be deemed to constitute an option, warrant or other right option to purchase shares of Parent acquire Buyer Common Stock in accordance with this Section 2.01(d). Each Company Stock Option so converted shall continue to have, and be subject to, on the same material terms and conditions as were applicable under such Option at the Effective Time, subject to the adjustments contemplated by this Section 1.9(a). For all assumed Options, other than any Options issued as contemplated by Section 4.4(a) (including vesting schedule) referred to as set forth in the applicable agreement pursuant "Permitted Options"), each Option shall become an option to which acquire a number of shares of Buyer Common Stock equal to the number of Common Shares subject to the unexercised portion of such Company Stock Option was issued multiplied by the Common Conversion Ratio (with any fraction resulting from such multiplication to be rounded down to the nearest whole number). The exercise price per share of each such assumed Option, other than Permitted Options, shall be equal to the exercise price of such Option immediately prior to the Effective Time, except thatdivided by the Common Conversion Ratio (with any fraction resulting from such division to be rounded up to the nearest whole cent). The number of shares purchasable under, as of and the exercise price of, each assumed Permitted Option shall not be adjusted in connection with the Merger and shall remain the same after the Effective Time. Following the Measurement Period, (iwith respect to any Options assumed by Buyer pursuant to this Section 1.9(a) each Company Stock and still unexercised, other than Permitted Options, the holder of such assumed Option shall be exercisable for that receive additional options, on the same terms and conditions and at the same exercise price per share in effect immediately prior to such issuance, to purchase a number of whole shares of Parent Buyer Common Stock equal to the product of difference between (i) the number of shares of Company Buyer Common Stock that were issuable subject to such Company Stock assumed Option immediately prior to the Effective Time thereto multiplied by 0.0472a fraction, (A) the numerator of which is the Total Merger Consideration and (B) the denominator of which is 4,960,000 (with any fraction resulting from such multiplication to be rounded down to the nearest whole number of shares of Parent Common Stocknumber), and (ii) the per share exercise price for each share number of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the shares of Parent Buyer Common Stock subject to such options assumed Option immediately prior thereto. The exercise price in effect immediately prior to such adjustment shall not be adjusted. The term, exercisability, vesting schedule, status as an "incentive stock option" under Section 422 of the Internal Revenue Code of 1986 (as amended, the "Code"), if applicable, and all of the other terms of the Options shall otherwise remain unchanged. In the event the Buyer receives a request to exercise any Option assumed by Parent in accordance it following the Effective Time and prior to the expiration of the Measurement Period, Buyer shall notify the optionholder of the consequence of such exercise with respect to potential additional options contemplated by this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstanding1.9(a).
Appears in 2 contracts
Samples: Loan and Security Agreement (Unisphere Networks Inc), Agreement and Plan of Merger (Unisphere Networks Inc)
Options and Warrants. As of (a) At the Effective Time, each Option which is outstanding option, warrant or other right to acquire shares of Company Common Stock then outstanding (each, a "Company Stock Option")at the Effective Time, whether or not then exercisable, shall be assumed by Parent and converted into an option, warrant or other right and become rights with respect to purchase shares of Parent Common Stock Stock, and Parent shall assume each Option, in accordance with this Section 2.01(d). Each the terms of the Company Stock Option so converted shall continue to have, Plan and be subject to, the same material terms and conditions (including vesting schedule) as set forth in the applicable stock option agreement pursuant to by which such Company Stock Option was issued immediately prior to the Effective Timeit is evidenced, except that, as of that from and after the Effective Time, (i) each Parent and its Board of Directors shall be substituted for the Company and the Company’s Board of Directors administering such Company Stock Plan, (ii) each Option shall assumed by Parent may be exercisable exercised solely for that number of whole shares of Parent Common Stock equal to (or cash, if so provided under the product terms of such Option), (iii) the number of shares of Company Parent Common Stock that were issuable subject to such Company Stock Option shall be equal to the number of Common Shares subject to such Option immediately prior to the Effective Time multiplied by 0.0472, rounded to 1.54448 (the nearest whole number of shares of Parent Common Stock“Exchange Ratio”), and (iiiv) the per share exercise price for under each such Option shall be adjusted by dividing the per share exercise price under each such Option by the Exchange Ratio and rounding up to the nearest cent. Notwithstanding the provisions of clause (iii) of the preceding sentence, Parent shall not be obligated to issue any fraction of a share of Parent Common Stock upon exercise of Options and any fraction of a share of Parent Common Stock that otherwise would be subject to each Company Stock a converted Option so shall represent the right to receive a cash payment upon exercise of such converted shall be Option equal to the quotient determined by dividing product of such fraction and the exercise price per difference between the market value of one share of Company Parent Common Stock at the time of exercise of such converted Option and the per share exercise price of such converted Option. In addition, notwithstanding the provisions of clauses (iii) and (iv) of the first sentence of this Section 5.15(a), (1) each Option which such Company Stock is an “incentive stock option” shall be adjusted as required by Section 424 of the Code, and the regulations promulgated thereunder, so as not to constitute a modification, extension or renewal of the option, within the meaning of Section 424(h) of the Code and (2) each Option was exercisable immediately prior shall be adjusted in a manner so as to comply with the Effective Time by 0.0472, rounded to requirements of Section 409A of the nearest whole centCode. The Company shall use agrees to take all necessary steps to effectuate the foregoing provisions of this Section 5.15(a), including using its reasonable best efforts to obtain all consents from each holder of a Option any consent or contract or agreement that may be deemed necessary or advisable in order to allow for effect the conversion of transactions contemplated by this Section 5.15(a). Anything in this Agreement to the Company Stock Options as contrary notwithstanding, Parent shall have the right, in its sole discretion, not to deliver the consideration provided in this Section 2.01(d), which consents are set forth in Section 2.01(d5.15(a) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk former holder of forfeiture a Option who has not delivered such consent or other condition under any applicable restricted stock purchase agreement contract or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the shares of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstandingagreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Quantrx Biomedical Corp), Agreement and Plan of Merger (Nurx Pharmaceuticals, Inc.)
Options and Warrants. As of the Effective TimeAll options, each outstanding optionwarrants, warrant or other right rights to acquire purchase shares of Company Common Capital Stock then outstanding (each, a "“Company Stock Option"), whether or not then exercisable, shall be assumed by Parent and converted into an option, warrant or other right to purchase shares of Parent Common Stock in accordance with this Section 2.01(d). Each Company Stock Option so converted shall continue to have, and be subject to, the same material terms and conditions (including vesting schedule”) as set forth in the applicable agreement pursuant to which such Company Stock Option was issued are outstanding immediately prior to the Effective Time shall not be assumed by Parent, First Surviving Corporation or Surviving Corporation and shall therefore become, pursuant to their respective terms, fully vested and exercisable prior to the Effective Time, except that, . Holders of Company Options shall be given the opportunity to exercise their Company Options effective prior to the Effective Time. All Company Options that remain unexercised and outstanding as of the Effective Time, (i) each Company Stock Option Time shall be exercisable terminated and canceled as of the Effective Time and converted into, and represent only, the right to receive from Parent, for that number each share of whole shares of Parent Company Common Stock equal to that is issuable upon full exercise of the product of Company Option (including, for this purpose, the number of shares of Company Common Stock that were are issuable subject upon conversion of all shares of Company Preferred Stock that are issuable upon any exercise of a Company Option) the Closing Date Per Share Consideration and the FDA Milestone Per Share Consideration all on the terms set forth in this Article II; provided, however, that (i) there shall be deducted from the aggregate Closing Date Cash Per Share Consideration payable with respect to such each Company Stock Option immediately prior Option, an amount equal to (A) the Effective Time Closing Cash Percentage multiplied by 0.0472, rounded the exercise per share price of the applicable Company Option multiplied by (B) the total number of shares of Company Common Stock issuable upon full exercise of the Company Option and (ii) there shall be deducted from the aggregate Closing Date Stock Per Share Consideration payable with respect to the nearest whole each Company Option a number of shares of Parent Common Stock, and Stock that have a value (iibased on the Applicable Denominator) equal to (C) the Closing Stock Percentage multiplied by the exercise per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the applicable Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(dOption multiplied by (D) the total number of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to issuable upon full exercise of the Effective Time are unvested or are subject Company Option, provided further, however, that if the product of clause (A) and (B) in clause (i) is greater than the aggregate Closing Date Cash Per Share Consideration payable with respect to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rightsOption, then the a number of shares of Parent Common Stock issued in exchange for that have a value (based on the Applicable Denominator) equal to the amount of the excess of the product of (A) and (B) over the aggregate Closing Date Cash Per Share Consideration payable with respect to such shares of Company Common Stock will Option shall also be unvested and subject deducted from the aggregate Closing Date Stock Per Share Consideration payable with respect to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legendsCompany Option. No later than 30 days following the filing of its first Annual Report on Form 10-K after Following the Effective Time, Parent shall file a registration statement on Form S-8 (no holder of Company Options, or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the shares participant in or beneficiary of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status any of the prospectus Company Benefit Plans, shall have any right to acquire or prospectuses contained therein) for so long as such options awards remain outstandingreceive any equity securities or other interests in the First Surviving Corporation, Parent, Surviving Corporation or their respective Subsidiaries, or any other consideration.
Appears in 1 contract
Options and Warrants. As of At the Effective Time, each outstanding option, warrant or other right to acquire shares holder of Company Common Stock a then outstanding option (eachcollectively, a the "Company Stock OptionOptions")) or warrant (collectively, the "Warrants") to purchase Shares granted by the Company, whether or not then exercisable, shall be assumed by Parent in settlement thereof, receive for each Share subject to such Option or Warrant an amount (subject to any applicable withholding tax) in cash equal to the difference between the Offer Price and converted into an option, warrant the per Share exercise price of such Option or other right Warrant to purchase shares of Parent Common Stock in accordance with this Section 2.01(d)the extent such difference is a positive number. Each Company Stock Option so converted shall continue to have, and be subject to, the same material terms and conditions (including vesting schedule) as set forth in the applicable agreement pursuant to which such Company Stock Option was issued immediately prior Prior to the Effective Time, the Company shall use its best efforts to obtain all necessary consents or releases from holders of Options or Warrants, to the extent required by the terms of the plans or agreements governing such Options or Warrants, as the case may be, or pursuant to the terms of any Option or Warrant granted thereunder, and take all such other lawful action as may be necessary to give effect to the transactions contemplated by this Section 2.4 (except thatfor such action that may require the approval of the Company's shareholders). Except as otherwise agreed to by Parent or the Purchaser and the Company, the Company shall take all action necessary to ensure that (i) the Company's 1991 Stock Option Plan, 1993 Stock Option Plan, as amended and restated as of October 11, 1995, and the Stock Option Plan for Directors (collectively, the "Stock Option Plans") shall have been terminated as of the Effective Time and the provisions in any other plan, program or arrangement providing for the issuance or grant of any other interest in respect of the capital stock of the Company or any Subsidiary thereof, shall be cancelled as of the Effective Time, (i) each Company Stock Option shall be exercisable for that number of whole shares of Parent Common Stock equal to the product of the number of shares of Company Common Stock that were issuable subject to such Company Stock Option immediately prior to the Effective Time multiplied by 0.0472, rounded to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent (a) no participant in any Stock Option Plan or other plans, programs or arrangements shall file a registration statement on Form S-8 (have any right thereunder to acquire equity securities of the Company, the Surviving Corporation or any successor orSubsidiary thereof and all such plans shall have been terminated, including if Form S-8 is and (b) the Company will not availablebe bound by any convertible security, other appropriate forms) with respect option, warrant, right or agreement which would entitle any person to the shares of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status own any capital stock of the prospectus Company, the Surviving Corporation or prospectuses contained therein) for so long as such options awards remain outstandingany Subsidiary thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Communications Central Inc)
Options and Warrants. As of the Effective Time, each outstanding option, warrant (a) At or other right to acquire shares of Company Common Stock then outstanding (each, a "Company Stock Option"), whether or not then exercisable, shall be assumed by Parent and converted into an option, warrant or other right to purchase shares of Parent Common Stock in accordance with this Section 2.01(d). Each Company Stock Option so converted shall continue to have, and be subject to, the same material terms and conditions (including vesting schedule) as set forth in the applicable agreement pursuant to which such Company Stock Option was issued immediately prior to the Effective Time, except thatEDI shall cause all outstanding options (the "EDI OPTIONS") and warrants (the "EDI WARRANTS") exercisable for shares of EDI Common Stock identified on SCHEDULE 1.6 attached hereto to be assumed by Bowmxx. Xxter such action has been taken, as of effective at the Effective Time, (i) Bowmxx xxxll assume each Company Stock such then-outstanding and unexercised EDI Option shall be or EDI Warrant and each such EDI Option and EDI Warrant shall, by virtue of the Merger and without any action on the part of the holder thereof, represent options or warrants, respectively, exercisable for that number of whole shares of Parent Common Stock equal Bowmxx Xxxck having the same terms and conditions as the EDI Options and EDI Warrants (including such terms and conditions as may be incorporated by reference into the agreements evidencing EDI Options and EDI Warrants pursuant to the product of plans or arrangements pursuant to which such EDI Options and EDI Warrants were granted) except that the number of shares of Company Common Stock that were issuable subject to such Company Stock Option immediately prior to the Effective Time upon exercise shall be multiplied by 0.0472, the Exchange Ratio and rounded to the nearest whole number of shares of Parent Common Stock, Bowmxx Xxxck and (ii) the per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common EDI Stock at under such option or warrant shall be equal to the exercise price per share of EDI Stock under such EDI Option or EDI Warrant divided by the Exchange Ratio and rounded to the nearest cent. EDI and Bowmxx xxxll use all reasonable efforts to ensure that the EDI Options which such Company Stock Option was exercisable immediately qualified as incentive stock options under Section 422 of the Code prior to the Effective Time by 0.0472, rounded continue to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K so qualify after the Effective Time, Parent shall file . Bowmxx xxxll take all corporate action necessary to reserve for issuance a registration statement on Form S-8 (or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the sufficient number of shares of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) Bowmxx Xxxck for delivery upon the exercise of EDI Options and shall use commercially reasonable efforts to maintain EDI Warrants after the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstandingEffective Time.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Electronic Designs Inc)
Options and Warrants. As of Upon the Effective TimeDate, (i) each outstanding option, warrant to purchase common Stock, Series C Preferred Stock or other right to acquire shares of Company Common Series D Preferred Stock then outstanding (each, a "Company Stock Option"), whether or not then exercisable, shall be assumed by Parent and converted into an option, warrant or other right to purchase Common Stock, Series C Preferred Stock or Series D Preferred Stock of Immersion California, including those options granted under the 1994 Stock Option Plan and 1997 Stock Option Plan (collectively, the "Option Plan") of Immersion California, shall be converted into and become an option, warrant, or right to purchase the number of shares of Parent Common Stock in accordance with this Section 2.01(d). Each Company Stock Option so converted shall continue Immersion Delaware stock determined by multiplying the number of shares of Immersion California subject to havethe option, warrant or right to purchase by 0.807, rounded down to the nearest whole number, at a price per share equal to the exercise price of the option, warrant or right to purchase Immersion California stock divided by 0.807, rounded down to the nearest whole cent, and be subject to, upon the same material terms and subject to the same conditions (including vesting schedule) as set forth in the applicable Option Plan and other plan or agreement pursuant entered into by Immersion California pertaining to which such Company Stock Option was issued immediately prior to the Effective Timeoptions, except thatwarrants, as of the Effective Time, or rights and (iii) each Company outstanding warrant to purchase Series A or Series B Preferred Stock Option of Immersion California shall be exercisable for that converted into and become a warrant to purchase the equivalent number of whole shares of Parent Common Series A Preferred Stock equal to the product or Series B Preferred Stock of Immersion Delaware stock determined by multiplying the number of shares of Company Common Stock that were issuable Immersion California subject to such Company Stock Option immediately prior to the Effective Time multiplied warrant by 0.0472, 4.035 rounded down to the nearest whole number of shares of Parent Common Stocknumber, and (ii) the at a price per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time warrant divided by 0.04724.035, rounded down to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for , and upon the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested same terms and subject to the same repurchase optionconditions as set forth in the agreements entered into by Immersion California pertaining to the warrant. A number of shares of Immersion Delaware stock of the relevant class and series shall be reserved for purposes of (i) the options, risk warrants, and rights described in clause (i) of forfeiture or other conditionthe preceding sentence equal to the number of shares of Immersion California stock so reserved as of the Effective Date multiplied by 0.807 and (ii) of the warrants described in clause (ii) of the preceding sentence equal to the number of shares of Immersion California stock of the relevant class and series so reserved as of the Effective Date multiplied by 4.035. As of the Effective Date, Immersion Delaware shall assume all obligations of Immersion California under agreements pertaining to such options, warrants and rights, including the Option Plans, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Timeoutstanding options, Parent shall file a registration statement on Form S-8 (warrants or any successor orother rights, including if Form S-8 is not availableor portions thereof, other appropriate forms) with respect to the shares of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstandinggranted pursuant thereto.
Appears in 1 contract
Options and Warrants. As of (a) At the Effective Time, each Company Option that is outstanding option, warrant or other right and unexercised immediately prior to acquire shares of the Effective Time under the Company Common Stock then outstanding (each, a "Company Stock Option")Incentive Plan, whether or not then exercisablevested, shall be assumed converted into and become an option to purchase Parent Common Stock, and Parent shall assume the Company Incentive Plan (if necessary) and each such Company Option in accordance with the terms (as in effect as of the date of this Agreement) of the Company Incentive Plan and the terms of the stock option agreement by which such Company Option is evidenced (but with changes to such documents as Parent in good faith determines are appropriate to reflect the substitution of the Company Options by Parent and converted into an option, warrant or other right to purchase shares of Parent Common Stock in accordance with this Section 2.01(dStock). Each Company Stock Option so converted shall continue to haveAll rights, terms, and restrictions with respect to Company Common Stock under Company Options assumed by Parent shall thereupon be subject toconverted into rights with respect to Parent Common Stock. Accordingly, the same material terms from and conditions (including vesting schedule) as set forth in the applicable agreement pursuant to which such Company Stock Option was issued immediately prior to after the Effective Time, except that, as of the Effective Time, : (i) each Company Stock Option shall assumed by Parent may be exercisable exercised solely for that number of whole shares of Parent Common Stock equal to the product of Stock; (ii) the number of shares of Company Common Stock that were issuable subject to such Company Stock Option immediately prior to the Effective Time multiplied by 0.0472, rounded to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted assumed by Parent shall be equal to determined in accordance with the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the Company Stock Options Allocation Certificate as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d5.15; (iii) of the Company Disclosure Letter. To per share exercise price for the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued issuable upon exercise of each Company Option assumed by Parent shall be determined in exchange for such shares accordance with the Allocation Certificate as provided in Section 5.15; and (iv) any restriction on the exercise of any Company Common Stock will also be unvested Option assumed by Parent shall continue in full force and subject to effect and the same repurchase optionterm, risk of forfeiture or other conditionexercisability, vesting schedule, and other provisions of such Company Option shall otherwise remain unchanged; provided, however, that: (A) the certificates representing such shares determination in the Allocation Certificate of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing number of its first Annual Report on Form 10-K after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the shares of Parent Common Stock subject to such options each Company Option assumed by Parent shall be based on the same ratio as that applied to the Company Common Stock to determine the number of shares of Parent Common Stock each holder of Company Common Stock shall receive; (B) the determination in the Allocation Certificate of the per share exercise price for the Parent Common Stock issuable upon exercise of each Company Option assumed by Parent shall be adjusted equitably to reflect the ratio described in clause (A); (C) to the extent provided under the terms of the respective stock option agreements governing the Company Options and the Company Incentive Plan, Parent may amend the terms of the Company Options and the Company Incentive Plan, in accordance with the terms thereof, to reflect Parent’s substitution of the Company Options with options to purchase Parent Common Stock (such as by making any change in control or similar definition relate to Parent and having any provision that provides for the adjustment of Company Options upon the occurrence of certain corporate events relate to corporate events that relate to Parent and/or Parent Common Stock), and such Company Options shall be subject to further adjustment as appropriate and necessary to reflect any stock split, division or subdivision of shares, stock dividend, reverse stock split, consolidation of shares, reclassification, recapitalization, or other similar transaction with respect to Parent Common Stock subsequent to the Effective Time; and (D) the Parent Board or a committee thereof shall succeed to the authority and responsibility of the Company Board or any committee thereof with respect to each Company Option assumed by Parent. Each Company Option so assumed by Parent is a nonqualified stock option (that is, an option that is not intended to qualify as an incentive stock option as defined in Section 422 of the Code), and, further, the assumption of such Company Option pursuant to this Section 2.01 (d5.5(a) and shall use commercially reasonable efforts to maintain be effected in a manner that satisfies the effectiveness requirements of such registration statement or registration statements (and maintain the current status Section 409A of the prospectus or prospectuses contained thereinCode and the Treasury Regulations promulgated thereunder (including the applicable portions of Treasury Regulation Section 1.424-1 as applied under Treasury Regulation Section 1.409A-1(b)(5)(v)(D)), and this Section 5.5(a) for so long as such options awards remain outstandingwill be construed consistent with this intent.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (AgeX Therapeutics, Inc.)
Options and Warrants. As of (a) At the Effective Time, each outstanding option, warrant HD Option under the HD Stock Option Plan or other right to acquire shares of Company Common Stock then outstanding (each, a "Company Stock Option"), whether or not then exercisableotherwise, shall by virtue of the Merger, be assumed by Parent and converted into an option, warrant or other right to purchase shares of Parent Common Stock in accordance with this Section 2.01(d)Parent. Each Company Stock HD Option so converted shall assumed by Parent under this Agreement will continue to have, and be subject to, the same material terms and conditions (including vesting schedule) as set forth in the applicable agreement pursuant to which such Company HD Stock Option was issued Plan and any other document governing such option immediately prior to the Effective TimeTime (including, without limitation, any repurchase rights or vesting provisions), except that, as of the Effective Time, that (i) each Company Stock HD Option shall will be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Parent Common Stock Shares equal to the product of the number of shares of Company HD Common Stock that were issuable subject to upon exercise of such Company Stock HD Option immediately prior to the Effective Time multiplied by 0.0472, the Exchange Ratio and rounded up to the nearest whole number of shares of Parent Common StockShares, and (ii) the per share exercise price for each share the Parent Shares issuable upon exercise of Parent Common Stock subject to each Company Stock such assumed HD Option so converted (the “Adjusted Option Price”) shall be equal to the quotient determined by dividing of (A) the aggregate exercise price per share for the shares of Company HD Common Stock at which otherwise purchasable pursuant to such Company Stock HD Option was exercisable immediately prior divided by (B) the aggregate number of Parent Shares deemed purchasable pursuant to the Effective Time by 0.0472such HD Option (each, as so adjusted, an “Adjusted Option”); provided that such exercise price shall be rounded down to the nearest whole cent, and (iii) any restriction on the exercisability of such HD Option shall continue in full force and effect, and the term, exercisability, vesting schedule, acceleration provisions and other provisions of such HD Option shall remain unchanged. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for It is the conversion intention of the Company Stock parties that the HD Options so assumed by Parent following the Effective Time will remain incentive stock options as provided in this Section 2.01(d), which consents are set forth defined in Section 2.01(d) 422 of the Company Disclosure Letter. To Code to the extent any shares of Company Common Stock outstanding immediately such options qualified as incentive stock options prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legendsTime. No later than 30 days following the filing of its first Annual Report on Form 10-K As soon as practicable after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor orissue to each Person who, including if Form S-8 is not available, other appropriate forms) with respect immediately prior to the shares Effective Time was a holder of Parent Common an outstanding HD Option under the HD Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain Option Plan or otherwise, a document evidencing the effectiveness foregoing assumption of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstanding.HD Option by Parent. 33
Appears in 1 contract
Samples: Execution Copy Agreement and Plan of Merger by And (Netword Inc)
Options and Warrants. As of the Effective Time, subject to the conditions and limitations hereof, all Options that are not Vested Options shall terminate without any consideration therefor, and each Vested Option (other than the Option Rollover Shares) shall entitle the holder thereof, in cancellation and settlement thereof, to receive from the Paying Agent, following the Effective Time, an amount in cash, without interest (such amount, the "Option Cash Payment") equal to (i) the product of (A) the number of Common Shares subject to such Vested Option, and (B) the amount by which the Common Per Share Amount exceeds the applicable exercise price per Common Share subject to such Vested Option (the amount in (i) being the "Closing Option Payment"), plus (ii) the product of (A) the number of Common Shares subject to such Vested Option, and (B) the sum of (w) Common Per Share Indemnification Escrow Release Amount plus (x) the Common Per Share Working Capital Escrow Release Amount, plus (y) the Common Per Share Supplemental Disclosure Escrow Release Amount, plus (z) the Common Per Share Positive Adjustment. Subject to the foregoing, the Vested Options shall be deemed exercised for cash (such exercise price to be deducted, if necessary, from the proceeds received in connection with the Common Shares deemed received, as provided above) immediately prior to the Effective Time, and the Common Shares that would be received in connection with such deemed exercise shall be deemed surrendered pursuant to this Agreement; provided that such deemed exercise shall be inapplicable with respect to any calculations made or payments due pursuant to this Article II. As of the Effective Time, each outstanding optionWarrant Holder shall, warrant or other right subject to acquire shares the conditions and limitations hereof and in the Warrant Grant, in cancellation and settlement of Company Common Stock then outstanding such Warrant Holder's Warrants, be entitled to receive from the Paying Agent, an amount, in cash, without interest (each, a "Company Stock Option"), whether or not then exercisable, shall be assumed by Parent and converted into an option, warrant or other right to purchase shares of Parent Common Stock in accordance with this Section 2.01(d). Each Company Stock Option so converted shall continue to have, and be subject tosuch amount, the same material terms and conditions "Warrant Payment") equal to the sum of (including vesting schedulei) as set forth in the applicable agreement pursuant product of (A) the number of Series A Preferred Shares subject to which the outstanding Warrants owned by such Company Stock Option was issued Warrant Holder immediately prior to before the Effective Time, except thatmultiplied by (B) the Series A Per Share Preference, plus (ii) the product of (A) the number of Common Shares that would be owned by such Warrant Holder if immediately before the Effective Time such Warrant Holder had exercised all Warrants then owned by it and converted into Common Shares the Series A Preferred Shares subject to such Warrants, multiplied by (B) the Common Per Share Amount, minus (iii) the aggregate purchase price for all Series A Preferred Shares subject to the Warrants owned by such Warrant Holder immediately before the Effective Time ((i), (ii) and (iii) collectively, the "Closing Warrant Payment"), plus (iv) the product of (A) the sum of (w) Common Per Share Indemnification Escrow Release Amount plus (x) the Common Per Share Working Capital Escrow Release Amount, plus (y) the Common Per Share Supplemental Disclosure Escrow Release Amount plus (z) the Common Per Share Positive Adjustment, and (B) the number of Common Shares that would be owned by such Warrant Holder if immediately before the Effective Time such Warrant Holder had exercised all Warrants then owned by it and converted into Common Shares the Series A Preferred Shares subject to such Warrants. The Company shall terminate the Stock Plans and the Warrant Grant as of the Effective Time, (i) each Company Stock Option shall be exercisable for that number of whole shares of Parent Common Stock equal to the product of the number of shares of Company Common Stock that were issuable subject to such Company Stock Option immediately prior to the Effective Time multiplied by 0.0472, rounded to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the shares of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement time there will be no Options or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain Warrants outstanding.
Appears in 1 contract
Options and Warrants. As of the Effective Time, each outstanding option, warrant or other right to acquire shares of Company Common Stock then outstanding (each, a "Company Stock Option"), whether or not then exercisable, shall be assumed by Parent and converted into an option, warrant or other right to purchase shares of Parent Common Stock in accordance with this Section 2.01(d). Each Company Stock Option so converted shall continue to have, and be subject to, the same material terms and conditions (including vesting schedulea) as set forth in the applicable agreement pursuant to which such Company Stock Option was issued immediately prior Prior to the Effective Time, except that, as the board of directors of the Effective Time, Company shall take all action necessary under the 2015 Stock Option Plan so that (i) each Company Stock Option shall be exercisable for that number of whole shares of Parent Common Stock equal to the product of the number of shares of Company Common Stock that were issuable subject to such Company Stock Option immediately prior to the Effective Time multiplied by 0.0472each issued and outstanding In-the-Money Option which is unexercisable or otherwise unvested shall automatically be deemed exercisable or otherwise vested, rounded to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent each Option that is not an In-the-Money Option, if any, shall file a registration statement on Form S-8 be automatically canceled and extinguished with no right to receive any consideration or payment and (iii) at the Effective Time all issued and outstanding In-the-Money Options shall be deemed exercised and automatically converted into the right to receive, at such time and in the manner provided in Section 2.10 and subject to adjustment in accordance with this Agreement (including Section 2.12), the applicable Per Option Merger Consideration, subject to any applicable withholding Taxes, in full satisfaction of the rights of such holder with respect thereto. At the Effective Time, the Representative shall pay to (x) the Company for further payment to each Optionholder who is employed or was previously employed by the Company or any of its Subsidiaries through the Company’s (or the applicable Subsidiary’s) payroll system, subject to any successor orapplicable withholding Taxes, including if Form S-8 is not available, other appropriate formsthe applicable Per Option Merger Consideration due under this Section 2.9(a) with respect to each issued and outstanding In-the-Money Option held by such Optionholder and (y) each Optionholder who is not and was not previously employed by the shares Company or any of Parent Common Stock its Subsidiaries, on behalf of the Company and subject to such options assumed by Parent in accordance with any applicable withholding Taxes, the applicable Per Option Merger Consideration due under this Section 2.01 2.9(a) with respect to each issued and outstanding In-the-Money Option held by such Optionholder. Further payments to which each Optionholder is entitled shall be paid by the Representative to the Company for further payment to such Optionholder through the Company’s (dor its applicable Subsidiary’s) payroll system (if such Optionholder is currently or was formerly employed by the Company or any of its Subsidiaries), or to the Optionholder directly (if the Optionholder is not currently or was not formerly employed by the Company or any of its Subsidiaries), in each case, subject to any applicable withholding Taxes, as, if and shall use commercially reasonable efforts when an amount is released or paid to maintain the effectiveness Representative pursuant to the terms of such registration statement or registration statements (this Agreement, the Adjustment Escrow Agreement and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstandingSpecial Escrow Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Franchise Group, Inc.)
Options and Warrants. On the Closing Date, the Parent shall deliver to the Exchange Agent or its nominee option agreements and warrants to purchase Parent Common Stock and Class B Warrants (the "Merger Options and Warrants") in an amount equal to the Merger Consideration attributable to each share of PSI Common Stock underlying each outstanding Option (other than options described in Section 2.2(c)) and Warrant, and otherwise containing substantially the same terms as are contained in the applicable option agreement or warrant. As of soon as practicable after the Effective Time, Parent shall cause the Exchange Agent to send a notice and transmittal form to each outstanding option, warrant or holder of Options and Warrants (other right to acquire shares than holders of Company Common Stock then outstanding (each, a "Company Stock Option"Options described in Section 2.2(c)), whether advising such holder of the effectiveness of the Merger and the procedure for surrendering to the Exchange Agent such Options or not then exercisableWarrants in exchange for the Merger Options and Warrants. ARTICLE III OTHER AGREEMENTS Section 3.1. Preparation of Form S-4 and the Proxy Statements; Stockholder Meetings; Other Filings. (a) PSI will, shall be assumed by Parent and converted into an optionas soon as reasonably practicable following the date of this Agreement, warrant or other right to purchase shares of Parent Common Stock take all action necessary in accordance with applicable law and its Certificate of Incorporation and By-laws to convene a meeting of its stockholders (the "PSI Stockholder Meeting") for the purpose of obtaining the affirmative vote to approve and adopt this Section 2.01(dAgreement and the transactions contemplated hereby at the PSI Stockholder Meeting of the holders of a majority of the votes represented by the outstanding PSI Common Stock ("PSI Stockholder Approval"). Each Company Stock Option so converted The proxy statement for such meeting shall continue contain the recommendation of PSI's Board of Directors that the stockholders vote to haveapprove and adopt this Agreement and the transactions contemplated hereby, and such recommendation shall not be withdrawn; provided, however, that such recommendation is subject to, the same material terms and conditions (including vesting schedule) as set forth in the applicable agreement pursuant to which such Company Stock Option was issued immediately prior to the Effective Time, except that, as exercise of the Effective Time, (i) each Company Stock Option shall be exercisable for that number discretion of whole shares PSI's Board of Parent Common Stock equal Directors of its fiduciary duties to the product of the number of shares of Company Common Stock that were issuable subject to such Company Stock Option immediately prior to the Effective Time multiplied by 0.0472, rounded to the nearest whole number of shares of Parent Common Stock, and (ii) the per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole centPSI's shareholders. The Company PSI shall use its reasonable best efforts to obtain solicit from its stockholders proxies in favor of such adoption and approval and shall take all consents other action necessary to allow for secure the conversion vote of stockholders required by DGCL to effect the transactions contemplated hereby. (b) As soon as practicable after execution and delivery of this Agreement, PSI shall prepare in accordance with the applicable requirements of the Company Stock Options Securities Exchange Act of 1934, as provided in this Section 2.01(damended ("Exchange Act"), which consents are set forth and DGCL, a proxy statement in Section 2.01(d) connection with the PSI Stockholder Meeting (the "Proxy Statement"). Parent shall cooperate with PSI in the preparation and filing of the Company Disclosure LetterProxy Statement, including any and all amendments and supplements thereto. To the extent any shares of Company Common Stock outstanding immediately prior Parent and PSI will cooperate in order for Parent to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement prepare and file with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested United States Securities and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent shall file Exchange Commission ("SEC") a registration statement on Form S-8 S-4 in connection with the issuance of the Access Merger Securities (the "Form S-4"), in which the Proxy Statement will be included as a part of a proxy statement/prospectus. PSI and Parent shall each use all reasonable efforts to have the Form S-4 declared effective under the Securities Act of 1933, as amended ("Securities Act") as soon as practicable after such filing. PSI will use all reasonable efforts to cause the Proxy Statement to be mailed to each of PSI's stockholders and, if Parent elects or is required to do so, Parent will use all reasonable efforts to cause the Proxy Statement to be mailed to Parent's stockholders, in each case as promptly as reasonably practicable after the Form S-4 is declared effective under the Securities Act. Parent will also take any action (other than qualifying to do business in any jurisdiction in which it is not now so qualified or filing a general consent to service of process) required to be taken under any applicable state securities or blue sky laws in connection with the issuance of the Access Merger Securities and PSI shall furnish all information concerning PSI and its stockholders as may be reasonably requested in connection with any such action. (c) If the Board of Directors of Parent determines that it is necessary or desirable to do so, Parent will, as soon as reasonably practicable following the date of this Agreement, take all action necessary in accordance with applicable law and its Restated Certificate of Incorporation and By-laws to convene a meeting of its stockholders (the "Access Stockholder Meeting") for the purpose of obtaining the affirmative vote at the Access Stockholder Meeting of the holders of a majority of the votes represented by the outstanding Parent Common Stock ("Access Stockholder Approval"). The proxy statement for such meeting (which shall be part of the proxy statement/prospectus contained in the Form S-4) shall contain the recommendation of Parent's Board of Directors that the stockholders vote to approve and adopt this Agreement and the transactions contemplated hereby, and such recommendation shall not be withdrawn; provided, however, that such recommendation is subject to the exercise of the discretion of Parent's Board of Directors of its fiduciary duties to Parent's shareholders. Parent shall use its reasonable best efforts to solicit from its stockholders proxies in favor of such adoption and approval and shall take all other action necessary to secure the vote of stockholders required by DGCL to effect the transactions contemplated hereby. (d) As soon as practicable after the execution and delivery of this Agreement, PSI and Parent shall promptly and properly prepare and file any other schedules, statements, reports, or other documents required (if any) under the Exchange Act, the Securities Act, or any successor orother federal or state securities laws relating to the transactions contemplated hereby (the "Other Filings"). Each party shall notify the other party hereto promptly of the receipt by such party of any stop order, including if Form S-8 is not available, other appropriate forms) comments or requests for additional information from any governmental official with respect to the shares Proxy Statement, the Form S-4 or any Other Filing made by such party and will supply the other party with copies of Parent Common Stock subject all correspondence between such party and its representatives, on the one hand, and the appropriate government official, on the other hand, with respect to the Proxy Statement, Form S-4 and Other Filings made by such options assumed by Parent in accordance with this Section 2.01 (d) party. Each of PSI and Access shall use commercially reasonable efforts to maintain obtain and furnish the effectiveness information required to be included in the Form S-4, the Proxy Statement and any Other Filing and, after consultation with the other party, to respond promptly to any comments made by any government official with respect to any filing. (e) PSI shall use all reasonable efforts to cause to be delivered to Parent a so-called "cold comfort" letter of Xxxxxx Xxxxxxxx LLP, PSI's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective, addressed to Parent, in form reasonably satisfactory to Parent and customary in scope and substance for letters delivered by independent public accountants in connection with registration statements similar to the Form S-4. (f) Parent shall use all reasonable efforts to cause to be delivered to PSI a so-called "cold comfort" letter of Price Waterhouse LLP, Parent's independent public accountants, dated a date within two business days before the date on which the Form S-4 shall become effective, addressed to PSI, in form reasonably satisfactory to PSI and customary in scope and substance for letters delivered by independent public accountants in connection with the registration statements similar to the Form S-4. (g) Parent agrees to use reasonable efforts to effect, prior to the Closing Date, the listing on the NASDAQ Small Cap market, upon official notice of issuance, of the Access Merger Shares and the Access Merger Warrants to be issued hereunder. (h) PSI hereby agrees to indemnify and hold harmless Parent and its directors, officers, advisors and agents and Parent hereby agrees to indemnify and holds harmless PSI and its directors, officers, advisors and agents, from and against any loss, claim, damage, cost, liability, obligation or expense (including reasonable attorney's fees and costs of investigation) to which any indemnified party may become subject under the Securities Act, Exchange Act, or otherwise, insofar as such registration loss, claim, damage, cost, liability, obligation or expense or actions in respect thereof: (i) relates solely to a claim brought against such indemnified party by a third party who is not affiliated with either the indemnified party or the indemnifying party; and (ii) arises out of or is based upon any untrue statement or registration alleged untrue statement of a material fact contained in the Form S-4 or the Proxy Statement or arises out of or is based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein with respect to such indemnifying party not misleading; and (and maintain iii) such untrue statement or omission or alleged omission is made in any information with respect to the current status of indemnifying party furnished in writing by such indemnifying party specifically for inclusion in the prospectus Proxy Statement, Form S-4 or prospectuses contained therein) for so long as such options awards remain outstandingany Other Filing. Section 3.2.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Paperclip Imaging Software Inc/De)
Options and Warrants. As In the event that the Company shall at any time issue rights, options or warrants to all holders of the Effective Time, each outstanding option, warrant or other right to acquire shares of Company its Common Stock then outstanding (each, a "Company Stock Option"), whether generally entitling them to subscribe for or not then exercisable, shall be assumed by Parent and converted into an option, warrant or other right to purchase shares of Parent Common Stock in accordance with this Section 2.01(d). Each Company or any security convertible into or exchangeable for shares of Common Stock Option so converted shall continue (such rights, options or warrants not being available on an equivalent basis to havethe Holder of the Warrant upon exercise) at a price per share less than the Current Market Price of the Common Stock on the date fixed for determination of stockholders entitled to receive such rights, and be subject to, the same material terms and conditions options or warrants (including vesting schedule) as set forth in the applicable agreement other than pursuant to a dividend reinvestment plan), (a) the Exercise Price in effect at the close of business on the date fixed for such determination shall be reduced by multiplying such Exercise Price by a fraction of which such Company Stock Option was issued immediately prior to the Effective Time, except that, as of the Effective Time, (i) each Company Stock Option the numerator shall be exercisable for that number of whole shares of Parent Common Stock equal to the product of the number of shares of Company Common Stock that were issuable subject to outstanding at the close of business on the date fixed for such Company Stock Option immediately prior to determination plus the Effective Time multiplied by 0.0472, rounded to the nearest whole number of shares of Parent Common Stock, Stock that the aggregate of the offering price of the total number of shares of Common Stock so offered for subscription or purchase would purchase at such Current Market Price and (ii) the per share exercise price for each share denominator shall be the number of Parent shares of Common Stock subject outstanding at the close of business on the date fixed for such determination plus the number of shares of Common Stock so offered for subscription or purchase (or such number of shares of Common Stock underlying any convertible securities so offered for subscription or purchase), such reduction to each Company Stock Option so converted become effective at the close of business on the date fixed for such determination, and (b) if any such rights, options or warrants expire or terminate without having been exercised or are exercised for consideration different from that utilized in the computation of any adjustment or adjustments on account of the issuance of such rights, options or warrants, the Exercise Price with respect to any portion of the Warrant not theretofore exercised shall be equal readjusted such that the Exercise Price would be the same as would have resulted had such adjustment been made without regard to the quotient determined by dividing issuance of such expired or terminated rights, options or warrants or based upon the actual consideration received upon exercise price per share thereof, as the case may be, which readjustment shall become effective upon such expiration, termination or exercise, as applicable; provided, however, that all readjustments in the Exercise Price based upon any expiration, termination or exercise for a different consideration of Company Common Stock at which any such Company Stock Option was exercisable right, option or warrant, in the aggregate, shall not cause the Exercise Price to exceed the Exercise Price in effect immediately prior to the Effective Time by 0.0472time such rights, rounded options or warrants were initially issued (without regard to any other adjustments of such number under this Section 3.3 that may have been made since the nearest whole centdate of the issuance of such rights, options or warrants). The Company shall use its reasonable best efforts For the purposes of this Section 3.3, the issuance of any options, rights or warrants or any shares of Common Stock (whether treasury shares or newly issued shares) pursuant to obtain all consents necessary to allow for the conversion any employee (including consultants and directors) benefit or stock option or purchase plan or program of the Company shall not be deemed to constitute an issuance of Common Stock Options as provided in or options, rights or warrants to which this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the shares of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstanding.3.3
Appears in 1 contract
Samples: Common Stock Purchase Warrant (Wink Communications Inc)
Options and Warrants. As (a) At the Closing, the terms of each outstanding option granted by the Company to purchase an aggregate of 2,457,422 Common Membership Units (a “Company Option”) under the Long-Term Incentive Plan of the Effective Time, each outstanding option, warrant or other right to acquire shares of Company Common Stock then outstanding (each, a "the “Company Stock Option"Incentive Plan”), whether vested or not then exercisableunvested, shall be assumed amended by action of the Board of Directors of the Company to provide that, at the Closing, each Company Option outstanding immediately prior to the Closing shall be deemed to constitute and shall become an option to acquire, on the same terms and conditions as were applicable under such Company Option, the same number of shares of Parent Common Stock (the “Parent Stock Options”) as the holder of such Company Option would have been entitled to receive pursuant to the Exchange had such holder exercised such Company Option in full immediately prior to the Closing, at a price per share of Parent Common Stock equal to (i) the aggregate exercise price for the Common Membership Units otherwise purchasable pursuant to such Company Option divided by (ii) the aggregate number of shares of Parent Common Stock deemed purchasable pursuant to such Company Option; provided, however, that, after aggregating all the shares of a holder subject to Company Options, any fractional share of Parent Common Stock resulting from such calculation for such holder shall be rounded up to the nearest whole share. Schedule 1.5(a) attached hereto sets forth the name of each holder of Company Options, the aggregate number of shares of Common Membership Units which each such person may purchase pursuant to his or her Company Options and converted into an optionthe aggregate number of shares of Parent Common Stock which each such person may purchase pursuant to the operation of this Section 1.5(a). In connection with the implementation of this Section 1.5(a), warrant or other right prior to purchase the Closing, the Board of Directors of the Company has, pursuant to authority granted to it under the Company Incentive Plan, adopted a resolution modifying the terms and conditions of the Company Options to provide that, following the Closing, such options shall be exercisable for shares of Parent Common Stock in accordance with the provisions of this Section 2.01(d1.5(a). Each In furtherance of the foregoing, Parent agrees to assume at the Closing all the obligations of the Company Stock Option so converted shall continue to haveunder the Company Incentive Plan, and be subject toincluding, without limitation, the same material terms outstanding Company Options and conditions (including vesting schedule) as set forth in the applicable agreement pursuant obligation to which such Company Stock Option was issued immediately prior to issue the Effective Time, except that, as of the Effective Time, (i) each Company Stock Option shall be exercisable for that number of whole shares of Parent Common Stock equal to the product of the number of shares of Company Common Stock that were issuable subject to such Company Stock Option immediately prior to the Effective Time multiplied by 0.0472, rounded to the nearest whole number of shares of Parent Common Stock, and (iiStock set forth on Schedule 1.5(a) the per share exercise price for each share of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing upon the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent shall file a registration statement on Form S-8 (or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the shares of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstandingOptions.
Appears in 1 contract
Samples: Securities Exchange Agreement (VirtualScopics, Inc.)
Options and Warrants. (a) As of the Effective Time, each outstanding option, warrant or other right to acquire shares of Company Common Stock then outstanding (each, a "Company Stock Option"), whether or not then exercisable, all unvested I-B Options shall be assumed by Parent and converted into an option, warrant or other right to purchase shares terminated as of Parent Common Stock in accordance with this Section 2.01(d). Each Company Stock Option so converted shall continue to have, and be subject to, the same material terms and conditions (including vesting schedule) as set forth in the applicable agreement pursuant to which such Company Stock Option was issued immediately prior to the Effective Time, except that, as . As of the Effective Time, all unvested A-C Options and any Option Plan, insofar as it relates to unvested A-C Options outstanding under such Option Plan as of the Closing, shall be assumed by the Buyer, in such manner that the Buyer (i) is a corporation “assuming a stock option in a transaction to which Section 424(a) applies” within the meaning of Section 424 of the Code and the regulations thereunder or (ii) to the extent Section 424 of the Code does not apply to any such A-C Options, would be such a corporation were Section 424 of the Code applicable to such A-C Options, and in accordance with the provisions set forth below. Immediately after the Effective Time, each Company unvested A-C Option outstanding immediately prior to the Effective Time shall be deemed to constitute an option to acquire, on the same terms and conditions as were applicable under such A-C Option at the Effective Time, such number of Buyer Common Shares as is equal to the result obtained by dividing (i) the product of (A) the Per Share Participating Initial Consideration and (B) number of Common Shares subject to the unvested portion of such A-C Option by (ii) the Buyer Stock Price (with any fraction resulting from such multiplication to be rounded down to the nearest whole number). The exercise price per share of each such assumed unvested Option shall be exercisable for that number of whole shares of Parent Common Stock equal to the product of (i) the number result obtained by dividing (X) the exercise price of shares of Company Common Stock that were issuable subject to such Company Stock Option immediately prior to the Effective Time multiplied by 0.0472, rounded to (Y) the nearest whole number of shares of Parent Common Stock, Per Share Participating Initial Consideration and (ii) the per share exercise price for each share of Parent Common Buyer Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, Price (rounded up to the nearest whole cent). The Company shall use its reasonable best efforts to obtain term, exercisability, vesting schedule and all consents necessary to allow for the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) other terms of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares of Company Common Stock will also be unvested and subject to the same repurchase option, risk of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Time, Parent Options shall file a registration statement on Form S-8 (or any successor or, including if Form S-8 is not available, other appropriate forms) with respect to the shares of Parent Common Stock subject to such options assumed by Parent in accordance with this Section 2.01 (d) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards otherwise remain outstandingunchanged.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Akamai Technologies Inc)
Options and Warrants. (a) As of the Effective Time, each outstanding optionall stock options to purchase Company Shares issued by the Company, warrant whether vested or other right unvested (the “Company Options”), shall automatically become Parent Options without further action by the holder thereof. Each Parent Option shall constitute an option to acquire shares such number of Company Common Stock then outstanding (each, a "Company Stock Option"), whether or not then exercisable, shall be assumed by Parent and converted into an option, warrant or other right to purchase shares of Parent Common Stock as is equal to the number of Company Shares subject to the unexercised portion of the Company Option multiplied by the Common Conversion Ratio (with any fraction resulting from such multiplication to be rounded to the nearest whole number, and with 0.5 shares rounded upward to the nearest whole number). The exercise price per share of each Parent Option shall be equal to the exercise price of the Company Option divided by the Common Conversion Ratio and the terms of such Parent Options shall otherwise remain the same. The Parent Options shall be granted under the Company's 2008 Equity Incentive Plan (the “2008 Plan”), which shall be adopted and assumed in writing by the Parent in connection with the Merger, and under the 2008 Plan’s terms, exercisability, vesting schedule, and status as an “incentive stock option” under Section 422 of the Code, if applicable. It is the intention of the Parties that any Company Options intended to be “incentive stock options” under Section 422 of the Code shall remain incentive stock options as Parent Options. (b) As soon as practicable after the Effective Time, the Parent or the Surviving Corporation shall take appropriate actions to collect the Company Options and the agreements evidencing the Company Options, which shall be deemed to be canceled and shall entitle the holder to exchange the Company Options for Parent Options. (c) 896,256 shares of Parent Common Stock shall be reserved for issuance under the 2008 Plan being assumed by Parent at Closing, and shall be issued upon the exercise of the Parent Options in accordance with this Section 2.01(d)1.11. Each No additional Options shall at any time hereafter be granted under the 2008 Plan. (d) Upon the Closing of the Merger, (i) Parent Bridge Warrants to purchase an aggregate of 1,500,000 shares of Parent Common Stock at a price of $1.00 per share will be granted to the holders of Bridge Warrants; (ii) Placement Agent Parent Bridge Warrants to purchase an aggregate of 610,155 shares of Parent Common Stock at a price of $1.00 per share will be granted to the holders of Placement Agent Bridge Warrants; and (iii) Parent Exchange Warrants to purchase an aggregate of 1,409,750 shares of Parent Common Stock at a price of $1.00 per share will be granted to the holders of Exchange Warrants. An aggregate of 3,509,750 shares of Parent Common Stock shall be reserved for issuance upon the exercise of the Parent Bridge Warrants, Placement Parent Agent Bridge Warrants and the Parent Exchange Warrants. As of the Effective Time, any and all outstanding Company Stock Option so converted Warrants to purchase capital stock of the Company, whether vested or unvested, shall continue to have, be canceled. 6 (e) In the event that any issued and be subject to, the same material terms and conditions (including vesting schedule) as set forth in the applicable agreement pursuant to which such outstanding Company Stock Option was issued immediately Options or Company Warrants are exercised prior to the Effective Time, except that, as of the Effective Time, (i) each Company Stock Option shall be exercisable for that number of whole shares of Parent Common Stock equal to the product of the number of shares outstanding Company Shares shall be increased by the number of Company Common Stock that were issuable subject to such Shares issued upon exercise of Company Stock Option immediately prior to Options and Company Warrants, and the Effective Time multiplied number of outstanding Company Options and Company Warrants shall be reduced by 0.0472the same number, rounded to as applicable. This will result in a decrease in the nearest whole aggregate number of shares of Parent Common StockStock reserved for issuance upon exercise of the Parent Options, Parent Bridge Warrants, Placement Agent Bridge Warrants and Parent Exchange Warrants, and (ii) an increase in the per share exercise price for each share number of Parent Common Stock subject to each Company Stock Option so converted shall be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Company Stock Option was exercisable immediately prior to the Effective Time by 0.0472, rounded to the nearest whole cent. The Company shall use its reasonable best efforts to obtain all consents necessary to allow for the conversion of the Company Stock Options as provided in this Section 2.01(d), which consents are set forth in Section 2.01(d) of the Company Disclosure Letter. To the extent any shares of Company Common Stock outstanding immediately prior to the Effective Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted stock purchase agreement or other agreement with the Company or under which the Company has any rights, then the shares of Parent Common Stock issued in exchange for such shares issuable to Company Stockholders at the Effective Time. Accordingly, regardless of the exercise of any Company Common Stock will also be unvested and subject to Warrants, the same repurchase option, risk total number of forfeiture or other condition, and the certificates representing such shares of Parent Common Stock may accordingly be marked with appropriate legends. No later than 30 days following the filing of its first Annual Report on Form 10-K after the Effective Timeissuable to Company Stockholders, Parent shall file a registration statement on Form S-8 (or any successor orand, including if Form S-8 is not availableupon exercise, other appropriate forms) with respect to the shares holders of Parent Common Stock subject to such options assumed by Options and Parent Warrants, in connection with the Merger (in accordance with Section 1.5 and this Section 2.01 (d1.11) and shall use commercially reasonable efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options awards remain outstanding.constant. 1.12 [Intentionally Omitted]. 1.13
Appears in 1 contract
Samples: HTM Merger Agreement
