Common use of Seller Stock Options and Related Matters Clause in Contracts

Seller Stock Options and Related Matters. (a) As of the Effective Time, all rights with respect to Seller Common Stock issuable pursuant to the exercise of stock options granted by Seller under the 2001 Capital Bancorp, Inc. Stock Option Plan (the “Stock Option Plan”), as well as any shares that are in the process of being purchased through the payroll deduction provisions of the 2005 Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”) but have not yet been delivered (collectively “Outstanding Seller Stock Options,” and the Stock Option Plan and the Employee Stock Purchase Plan, collectively, the “Seller Stock Plans”), which are outstanding at the Effective Time, whether are not such Seller Stock Options are then exercisable, shall, subject to this Section, be assumed by Acquiror in accordance with the terms of the particular Seller Stock Plan under which such Seller Stock Options were issued and the agreement by which such Seller Stock Options are evidenced, except that from and after the Effective Time (i) Acquiror and its Compensation Committee shall be substituted for Seller and the Seller’s Compensation Committee administering the particular Seller Stock Plan, (ii) each Seller Stock Option assumed by Acquiror hereunder may be exercised solely for Acquiror Common Stock, (iii) the number of shares Acquiror Common Stock subject to such Seller Stock Option shall be equal to the number of shares Seller Common Stock subject to such Seller Stock Option immediately prior to the Effective Time multiplied by the Exchange Ratio and (iv) the per share exercise price under each such Seller Stock Option shall be adjusted by dividing the per share exercise price under each such Seller Stock Option by the Exchange Ratio and rounding up to the nearest cent. The parties further agree that Seller shall be permitted, following the date of this Agreement, to amend or terminate the Seller Stock Plans and amend any Nonqualified Stock Option Agreement or similar agreement evidencing the grant or award of equity compensation of a director of Seller or Seller Subsidiary, as contemplated in Section 5.2(vi) herein. (b) At all times after the Effective Time, Acquiror shall reserve for issuance such number of shares of Acquiror Common Stock as shall be necessary to permit the exercise of any converted or substitute Seller Stock Options. As soon as practicable after the Effective Time, if Acquiror has not already done so, and to the extent Seller shall have a registration statement in effect or an obligation to file a registration statement, Acquiror shall file a registration statement on Form S-8 (or any successor or appropriate form), with respect to the Acquiror shares subject to the assumed Seller Stock Options and shall use its reasonable efforts to maintain the effectiveness of such registration statement (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such assumed Seller Stock Options remain outstanding. (c) The number of Acquiror shares subject to the converted or substituted Seller Stock Options and the exercise price therefore shall, from and after the date of this Agreement and the Effective Time, be subject to appropriate adjustment in the event of the occurrence of any transaction described in Section 5.17 hereof if the record date with respect to such transaction is on or after the date of this Agreement or the Effective Time, respectively. (d) Each Seller Stock Option which is an incentive stock option as defined in Section 422 of the Code shall be adjusted as required by Section 424 of the Code, and the Regulations promulgated thereunder, so as to continue as an incentive stock option under Section 424(a) of the Code, and so as not to constitute a modification, extension or renewal of the option within the meaning of Section 424(h) of the Code. Acquiror and Seller agree to take all steps necessary to effectuate the foregoing provisions of this Section 2.8(d).

Seller Stock Options and Related Matters. (a) As of the Effective Time, all rights with respect to Seller Common Stock issuable pursuant to the exercise of stock options granted by Seller under the 2001 Capital Bancorp, Inc. Heritage Financial Holding Corporation Incentive Stock Option Compensation Plan (the “Stock Option Plan”), as well as any shares that are in the process of being purchased through the payroll deduction provisions of the 2005 Heritage Financial Holding Corporation Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”) but have not yet been delivered (collectively “Outstanding Seller Stock Options,” and the Stock Option Plan and the Employee Stock Purchase Plan, collectively, the “Seller Stock Plans”), which are outstanding at the Effective Time, whether are not such Seller Stock Options are then exercisable, shall, subject to this Section, be assumed by Acquiror in accordance with the terms of the particular Seller Stock Plan under which such Seller Stock Options were issued and the agreement by which such Seller Stock Options are evidenced, except that from and after the Effective Time (i) Acquiror and its Compensation Committee shall be substituted for Seller and the Seller’s Compensation Committee administering the particular Seller Stock Plan, (ii) each Seller Stock Option assumed by Acquiror hereunder may be exercised solely for Acquiror Common Stock, (iii) the number of shares Acquiror Common Stock subject to such Seller Stock Option shall be equal to the number of shares Seller Common Stock subject to such Seller Stock Option immediately prior to the Effective Time multiplied by the Exchange Ratio and (iv) the per share exercise price under each such Seller Stock Option shall be adjusted by dividing the per share exercise price under each such Seller Stock Option by the Exchange Ratio and rounding up to the nearest cent. The parties further agree that Seller shall be permitted, following the date of this Agreement, to amend or terminate the Seller Stock Plans Option Plan and amend any Nonqualified Stock Option Agreement or similar agreement evidencing the grant or award of equity compensation of a director of Seller or Seller Subsidiary, as contemplated in Section 5.2(vi) herein. (b) At all times after the Effective Time, Acquiror shall reserve for issuance such number of shares of Acquiror Common Stock as shall be necessary to permit the exercise of any converted or substitute Seller Stock Options. As soon as practicable after the Effective Time, if Acquiror has not already done so, and to the extent Seller shall have a registration statement in effect or an obligation to file a registration statement, Acquiror shall file a registration statement on Form S-8 (or any successor or appropriate form), with respect to the Acquiror shares subject to the assumed Seller Stock Options and shall use its reasonable efforts to maintain the effectiveness of such registration statement (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such assumed Seller Stock Options remain outstanding. (c) The number of Acquiror shares subject to the converted or substituted Seller Stock Options and the exercise price therefore shall, from and after the date of this Agreement and the Effective Time, be subject to appropriate adjustment in the event of the occurrence of any transaction described in Section 5.17 hereof if the record date with respect to such transaction is on or after the date of this Agreement or the Effective Time, respectively. (d) Each Seller Stock Option which is an incentive stock option as defined in Section 422 of the Code shall be adjusted as required by Section 424 of the Code, and the Regulations promulgated thereunder, so as to continue as an incentive stock option under Section 424(a) of the Code, and so as not to constitute a modification, extension or renewal of the option within the meaning of Section 424(h) of the Code. Acquiror and Seller agree to take all steps necessary to effectuate the foregoing provisions of this Section 2.8(d2.4(d).

Seller Stock Options and Related Matters. (ai) As soon as practicable following the date of this Agreement, but in any event prior to the Closing Date, the Board of Directors of Seller (or, if appropriate, any committee administering the Seller Stock Option Plans) shall adopt such resolutions or use its reasonable best effort to take such other actions as are required to provide for the conversion of each Seller Stock Option as provided in this Section 2.1(d). (ii) At the Effective Time, each Seller Stock Option that is outstanding, unexercised, vested and exercisable immediately prior to the Effective Time, after giving effect to any acceleration of vesting applicable to such Seller Stock Option in connection with the Merger (“Vested Options”), shall be cancelled in exchange for the right to receive a portion of the Merger Consideration from Buyer as set forth in Section 2.2(c)(iv). On and after the Effective Time, the Vested Options shall terminate and cease to be outstanding. All amounts payable pursuant to this Section 2.1(d)(ii) shall be subject to any required tax withholding. (iii) At the Effective Time, each Seller Stock Option that is outstanding, unexercised and not vested and exercisable immediately prior to the Effective Time, after giving effect to any acceleration of vesting applicable to such Seller Stock Option in connection with the Merger (“Assumed Options”), shall be converted into and become an option to purchase shares of common stock, par value $.01 per share (“Buyer Common Stock”) of Buyer as provided below in this Section 2.1(d)(iii), and Buyer shall assume such Assumed Option in accordance with this Section 2.1(d)(iii) and the terms (as in effect as of the date of this Agreement) of the Seller Stock Option Plans and/or the seller option agreement by which such Assumed Option is evidenced. All rights to purchase Seller Common Stock under Assumed Options shall, effective as of the Effective Time, all thereupon be converted into rights with respect to Seller purchase Buyer Common Stock issuable pursuant to the exercise of stock options granted by Seller under the 2001 Capital BancorpStock. Accordingly, Inc. Stock Option Plan (the “Stock Option Plan”), as well as any shares that are in the process of being purchased through the payroll deduction provisions of the 2005 Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”) but have not yet been delivered (collectively “Outstanding Seller Stock Options,” and the Stock Option Plan and the Employee Stock Purchase Plan, collectively, the “Seller Stock Plans”), which are outstanding at the Effective Time, whether are not such Seller Stock Options are then exercisable, shall, subject to this Section, be assumed by Acquiror in accordance with the terms of the particular Seller Stock Plan under which such Seller Stock Options were issued and the agreement by which such Seller Stock Options are evidenced, except that from and after the Effective Time Time: (i) Acquiror and its Compensation Committee shall be substituted for Seller and the Seller’s Compensation Committee administering the particular Seller Stock Plan, (iiA) each Seller Stock Assumed Option assumed by Acquiror hereunder may be exercised solely for Acquiror Buyer Common Stock, ; (iiiB) the number of shares Acquiror of Buyer Common Stock subject to such Seller Stock each Assumed Option shall be equal to determined by multiplying the number of shares of Seller Common Stock that were subject to such Seller Stock Assumed Option immediately prior to the Effective Time multiplied by the Exchange Ratio Ratio, and rounding the resulting number down to the nearest whole number of shares of Buyer Common Stock; (ivC) the per share exercise price under for the Buyer Common Stock issuable upon exercise of each such Seller Stock Assumed Option shall be adjusted determined by dividing the per share exercise price under each of Seller Common Stock subject to such Seller Stock Option Assumed Option, as in effect immediately prior to the Effective Time, by the Exchange Ratio Ratio, and rounding the resulting exercise price up to the nearest whole cent. The parties further agree that Seller shall be permitted, following the date of this Agreement, to amend or terminate the Seller Stock Plans ; and amend (D) any Nonqualified Stock Option Agreement or similar agreement evidencing the grant or award of equity compensation of a director of Seller or Seller Subsidiary, as contemplated in Section 5.2(vi) herein. (b) At all times after the Effective Time, Acquiror shall reserve for issuance such number of shares of Acquiror Common Stock as shall be necessary to permit restriction on the exercise of any converted Assumed Option shall continue in full force and effect and the term, exercisability, vesting schedule (including acceleration of vesting agreements in existence) and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the conversion of such Assumed Option or substitute Seller Stock Optionsotherwise. As soon as practicable Buyer shall file with the SEC, no later than thirty (30) days after the Effective TimeClosing, if Acquiror has not already done so, and to the extent Seller shall have a registration statement in effect or an obligation to file a registration statement, Acquiror shall file a registration statement on Form S-8 S 8 (or any successor or appropriate form), relating to the shares of Buyer Common Stock issuable with respect to the Acquiror shares subject to the assumed Seller Stock Options and shall use its reasonable efforts to maintain the effectiveness of such registration statement (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such assumed Seller Stock Options remain outstandingAssumed Options. (c) The number of Acquiror shares subject to the converted or substituted Seller Stock Options and the exercise price therefore shall, from and after the date of this Agreement and the Effective Time, be subject to appropriate adjustment in the event of the occurrence of any transaction described in Section 5.17 hereof if the record date with respect to such transaction is on or after the date of this Agreement or the Effective Time, respectively. (d) Each Seller Stock Option which is an incentive stock option as defined in Section 422 of the Code shall be adjusted as required by Section 424 of the Code, and the Regulations promulgated thereunder, so as to continue as an incentive stock option under Section 424(a) of the Code, and so as not to constitute a modification, extension or renewal of the option within the meaning of Section 424(h) of the Code. Acquiror and Seller agree to take all steps necessary to effectuate the foregoing provisions of this Section 2.8(d).

Seller Stock Options and Related Matters. (ai) As soon as practicable following the date of the Effective Timethis Agreement, all rights with respect to Seller Common Stock issuable pursuant but in any event no later than 30 days prior to the exercise Closing Date, the Board of stock options granted by Directors of Seller under (or, if appropriate, any committee administering the 2001 Capital Bancorp, Inc. Seller Stock Option Plan (the “Plans) shall adopt such resolutions and take such other actions as are required to provide that each then outstanding Seller Stock Option heretofore granted under any Seller Stock Option Plan”), as well as any shares that are in the process of being purchased through the payroll deduction provisions of the 2005 Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”) but have not yet been delivered (collectively “Outstanding Seller Stock Options,” and the Stock Option Plan and the Employee Stock Purchase Plan, collectively, the “Seller Stock Plans”), which are outstanding at the Effective Time, whether are or not such Seller Stock Options are then exercisable, shall, subject shall be cancelled immediately prior to this Section, be assumed by Acquiror in accordance with the terms of the particular Seller Stock Plan under which such Seller Stock Options were issued and the agreement by which such Seller Stock Options are evidenced, except that from and after the Effective Time in exchange for payment of an amount in cash equal to the product of (i) Acquiror and its Compensation Committee shall be substituted for Seller and the Seller’s Compensation Committee administering the particular Seller Stock Plan, (ii) each Seller Stock Option assumed by Acquiror hereunder may be exercised solely for Acquiror Common Stock, (iiix) the number of shares Acquiror Common Stock subject to such Seller Stock Option shall be equal to the number of shares Seller Common Stock subject to, and vested under (after giving effect to any accelerating vesting provisions), such Seller Stock Option immediately prior to the Effective Time multiplied by the Exchange Ratio Time, and (ivy) the excess, if any, of the Merger Consideration over the per share exercise price under each of such Seller Stock Option Option. Buyer shall cause the Surviving Corporation to make the foregoing payments to holders of Seller Stock Options on or promptly following the Closing Date. Such cash payments shall be adjusted by dividing the per share exercise price under each such Seller Stock Option by the Exchange Ratio treated as compensation and rounding up to the nearest cent. The parties further agree that Seller shall be permitted, net of any applicable federal or state withholding tax. (ii) As soon as practicable following the date of this Agreement, but in any event no later than 30 days prior to amend or terminate the Closing Date, the Board of Directors of Seller (or, if appropriate, any committee administering the Seller Stock Plans Option Plans) shall adopt such resolutions and amend take such other actions as are required to provide that each then outstanding Seller Restricted Stock Award (which for the avoidance of doubt shall include the Authorized Seller Restricted Stock Awards) heretofore granted under any Nonqualified Seller Stock Option Agreement or similar agreement evidencing Plan shall be cancelled immediately prior to the grant or award Effective Time in exchange for payment of equity compensation an amount in cash equal to the product of a director (x) the number of shares of Seller or Common Stock subject to, and vested under (after giving effect to any accelerating vesting provisions), such Seller Subsidiary, as contemplated in Section 5.2(vi) herein. (b) At all times after Restricted Stock Award immediately prior to the Effective Time, Acquiror and (y) the Merger Consideration. Buyer shall reserve cause the Surviving Corporation to make the foregoing payments to holders of Seller Restricted Stock Awards on or promptly following the Closing Date. Such cash payments shall be treated as compensation and shall be net of any applicable federal or state withholding tax. (iii) As soon as practicable following the date of this Agreement, but in any event no later than 30 days prior to the Closing Date, the Board of Directors of Seller (or, if appropriate, any committee administering the Seller Stock Option Plans) shall adopt such resolutions and take such other actions (including, without limitation, adopting any plan amendments) as are required to provide that each then outstanding and vested Seller Deferred Stock Unit heretofore granted under any Seller Stock Option Plan shall be cancelled immediately prior to the Effective Time in exchange for issuance such payment of an amount in cash equal to the product of (x) the number of shares of Acquiror Seller Common Stock as shall be necessary subject to, and vested under (after giving effect to permit the exercise of any converted or substitute accelerating vesting provisions), such Seller Deferred Stock Options. As soon as practicable after Unit immediately prior to the Effective Time, if Acquiror has not already done so, and (y) the Merger Consideration. Buyer shall cause the Surviving Corporation to make the extent foregoing payments to holders of Seller Deferred Stock Units on or promptly following the Closing Date. Such cash payments shall have a registration statement in effect or an obligation to file a registration statement, Acquiror shall file a registration statement on Form S-8 (or any successor or appropriate form), with respect to the Acquiror shares subject to the assumed Seller Stock Options be treated as compensation and shall use its reasonable efforts to maintain the effectiveness of such registration statement (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such assumed Seller Stock Options remain outstanding. (c) The number of Acquiror shares subject to the converted or substituted Seller Stock Options and the exercise price therefore shall, from and after the date of this Agreement and the Effective Time, be subject to appropriate adjustment in the event of the occurrence net of any transaction described in Section 5.17 hereof if applicable federal or state withholding tax. All such cash payments to be paid pursuant to clauses (i) through (iii) above, the record date with respect to such transaction is on or after the date of this Agreement or the Effective Time, respectively"Option Amounts. (d) Each Seller Stock Option which is an incentive stock option as defined in Section 422 of the Code shall be adjusted as required by Section 424 of the Code, and the Regulations promulgated thereunder, so as to continue as an incentive stock option under Section 424(a) of the Code, and so as not to constitute a modification, extension or renewal of the option within the meaning of Section 424(h) of the Code. Acquiror and Seller agree to take all steps necessary to effectuate the foregoing provisions of this Section 2.8(d)."

Seller Stock Options and Related Matters. (a) As of the Effective Time, all rights with respect to the Seller Common Stock issuable pursuant to the exercise of stock options ("Seller Options") granted by Seller under stock option plans or agreements of Seller (the 2001 Capital Bancorp, Inc. "Seller Stock Option Plan (the “Stock Option Plan”Plans"), as well as any shares that and held by each participant thereunder, which Seller Options are listed and described in the process of being purchased through the payroll deduction provisions of the 2005 Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”) but have not yet been delivered (collectively “Outstanding Seller Stock Options,” Disclosure Schedule 1.04 hereof and the Stock Option Plan and the Employee Stock Purchase Plan, collectively, the “Seller Stock Plans”), which are outstanding at the Effective Time, whether are not such Seller Stock Options are then exercisable, Time shall, subject to this SectionSection 1.04(c), be assumed by Acquiror ST-Sub in accordance with the terms of the particular Seller Stock Option Plan or agreements under which such Seller Stock Options were issued and issued. At the agreement Effective Time, SouthTrust will make available to ST-Sub (or ST-Sub will purchase from SouthTrust) sufficient SouthTrust Shares to fund the Seller Options so assumed by which such Seller Stock Options are evidenced, except that from ST-Sub. From and after the Effective Time Time, (i) Acquiror and its Compensation Committee shall be substituted for Seller and the Seller’s Compensation Committee administering the particular Seller Stock Plan, (ii) each Seller Stock Option assumed by Acquiror ST-Sub hereunder may be exercised solely for Acquiror Common Stockshares of SouthTrust, (iiiii) the number of shares Acquiror Common Stock of SouthTrust subject to such Seller Stock Option shall be equal to the number of shares Seller Common Stock of Seller subject to such Seller Stock Option immediately prior to the Effective Time multiplied by the Exchange Ratio and (iviii) the per share exercise price under each such Seller Stock Option under each such Seller Option shall be adjusted by dividing the per share exercise price under each such Seller Stock Option by the Exchange Ratio and rounding up down to the nearest cent. The parties further agree that Seller shall be permitted, following the date of this Agreement, to amend or terminate the Seller Stock Plans and amend any Nonqualified Stock Option Agreement or similar agreement evidencing the grant or award of equity compensation of a director of Seller or Seller Subsidiary, as contemplated in Section 5.2(vi) herein. (b) At all times after the Effective Time, Acquiror SouthTrust shall reserve for issuance such number of shares of Acquiror Common Stock SouthTrust as shall be necessary to permit the exercise of any converted the Seller Options in the manner contemplated by this Agreement. At or substitute Seller Stock Options. As soon as practicable after prior to, or (at the election of SouthTrust) promptly after, the Effective Time, if Acquiror has not already done so, and to the extent Seller shall have a registration statement in effect or an obligation to file a registration statement, Acquiror SouthTrust shall file a registration statement Registration Statement on Form S-8 (or any successor or other appropriate form), ) with respect to the Acquiror shares of SouthTrust subject to the assumed Seller Stock Options and shall use its reasonable best 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 assumed any of the Seller Stock Options remain outstanding. SouthTrust shall make any filings required under any applicable state securities laws to qualify the shares of SouthTrust subject to such Seller Options for resale thereunder, and cause such SouthTrust shares to be listed on The Nasdaq Stock Market. (c) The number of Acquiror shares SouthTrust Shares subject to the converted or substituted Seller Stock Options to be assumed by SouthTrust hereunder and the exercise price therefore thereof shall, from and after the date of this Agreement and the Effective Time, be subject to appropriate adjustment in the event of the occurrence of any transaction described in Section 5.17 1.02 hereof if the record date with respect to such transaction is on or after prior to the date exercise of this Agreement or the Effective Time, respectivelySeller options. (d) Each Without limiting the foregoing, each holder of a Seller Option shall have the right (which right shall be exercised at least five (5) days prior to the Closing Date by written notice to SouthTrust) to elect, in lieu of the provisions of Section 1.04(a), to convert, at the Effective Time, all or a portion of his or her Seller Options which have not expired prior to the Effective Time into the right to receive such number of shares (rounded to the nearest whole share) of SouthTrust Common Stock as are equal to the result produced by the following calculation: (i) the product of the number of shares of Seller Common Stock subject to such Seller Option, the Exchange Ratio and the SouthTrust Share Price of the SouthTrust Common Stock less (ii) the aggregate exercise price of such Seller Option as to which such holder makes the election described above, divided by the SouthTrust Share Price. The Registration Statement (as defined below) or the Post-Effective Registration Statement (as defined below) shall cover the number of shares of SouthTrust for which holders of Seller Options may elect to be converted into SouthTrust shares. (e) It is intended that the foregoing assumption of Seller Options shall be undertaken in a manner that will not constitute a "modification" as defined in Section 424 of the Code as to any stock option which is an incentive stock option as defined in Section 422 of the Code Code. All restrictions or limitations on transfer with respect to shares of Seller awarded under a Seller Stock Option Plan ("Restricted Stock"), to the extent that such restrictions or limitations shall not have already lapsed, shall remain in full force and effect with respect to the shares of SouthTrust into which such Restricted Stock is converted pursuant to this Agreement. Except as otherwise provided herein, (i) the provisions of the Seller Stock Option Plans that provide for the issuance or grant of any other interest in respect of the capital stock of Seller shall be adjusted deleted as required by Section 424 of the Code, Effective Time and the Regulations promulgated thereunder, so as to continue as an incentive stock option under Section 424(a(ii) of the Code, and so as not to constitute a modification, extension or renewal of the option within the meaning of Section 424(h) of the Code. Acquiror and Seller agree to shall take all reasonable steps necessary to effectuate ensure that following the foregoing provisions Effective Time no holder of this Section 2.8(d)Seller Options shall have any right thereunder to acquire any equity securities of Seller.

Seller Stock Options and Related Matters. (ai) As soon as practicable following the date of this Agreement, the Board of Directors of Seller (or, if appropriate, any committee administering the Seller Stock Option Plans) shall adopt such resolutions or use its reasonable best effort to take such other actions as are required to provide for the conversion of each Seller Stock Option as provided in this Section 2.1(d). (ii) At the Effective Time, each Seller Stock Option that is outstanding and unexercised immediately prior to the Effective Time (“Assumed Options”), whether or not vested, shall be converted into and become an option to purchase Buyer Common Stock as provided below in this Section 2.1(d)(ii), and Buyer shall assume such Seller Stock Option in accordance with this Section 2.1(d)(ii) and the terms (as in effect as of the date of this Agreement) of the Seller Stock Option Plans and/or the seller option agreement by which such Option is evidenced. All rights to purchase Seller Common Stock under Assumed Options shall, effective as of the Effective Time, all thereupon be converted into rights with respect to Seller purchase Buyer Common Stock issuable pursuant to the exercise of stock options granted by Seller under the 2001 Capital BancorpStock. Accordingly, Inc. Stock Option Plan (the “Stock Option Plan”), as well as any shares that are in the process of being purchased through the payroll deduction provisions of the 2005 Employee Stock Purchase Plan (the “Employee Stock Purchase Plan”) but have not yet been delivered (collectively “Outstanding Seller Stock Options,” and the Stock Option Plan and the Employee Stock Purchase Plan, collectively, the “Seller Stock Plans”), which are outstanding at the Effective Time, whether are not such Seller Stock Options are then exercisable, shall, subject to this Section, be assumed by Acquiror in accordance with the terms of the particular Seller Stock Plan under which such Seller Stock Options were issued and the agreement by which such Seller Stock Options are evidenced, except that from and after the Effective Time Time: (i) Acquiror and its Compensation Committee shall be substituted for Seller and the Seller’s Compensation Committee administering the particular Seller Stock Plan, (iiA) each Seller Stock Assumed Option assumed by Acquiror hereunder may be exercised solely for Acquiror Buyer Common Stock, ; (iiiB) the number of shares Acquiror of Buyer Common Stock subject to such Seller Stock each Assumed Option shall be equal to determined by multiplying the number of shares of Seller Common Stock that were subject to such Seller Stock Assumed Option immediately prior to the Effective Time multiplied by the Option Exchange Ratio Ratio, and rounding the resulting number down to the nearest whole number of Buyer Common Stock; (ivC) the per share exercise price under for the Buyer Common Stock issuable upon exercise of each such Seller Stock Assumed Option shall be adjusted determined by dividing the per share exercise price under each of Seller Common Stock subject to such Seller Stock Option Assumed Option, as in effect immediately prior to the Effective Time, by the Option Exchange Ratio Ratio, and rounding the resulting exercise price up to the nearest whole cent. The parties further agree ; and (D) after giving effect to any acceleration of vesting of any Assumed Option that Seller shall be permittedwill occur as a result of the Merger pursuant to the terms of any such Assumed Option, following the date of this Agreement, to amend or terminate the Seller Stock Plans and amend any Nonqualified Stock Option Agreement or similar agreement evidencing the grant or award of equity compensation of a director of Seller or Seller Subsidiary, as contemplated in Section 5.2(vi) herein. (b) At all times after the Effective Time, Acquiror shall reserve for issuance such number of shares of Acquiror Common Stock as shall be necessary to permit remaining restriction on the exercise of any converted or substitute Seller Stock OptionsAssumed Option shall continue in full force and effect and the term, exercisability, remaining vesting schedule and other provisions of such Assumed Option shall otherwise remain unchanged as a result of the conversion of such Assumed Option. As soon as practicable Buyer shall file with the SEC, no later than three (3) Business Days after the Effective TimeClosing, if Acquiror has not already done so, and to the extent Seller shall have a registration statement in effect or an obligation to file a registration statement, Acquiror shall file a registration statement on Form S-8 (or any successor or appropriate form), if available for use by Seller, relating to the Buyer Shares issuable with respect to the Acquiror shares subject Assumed Options. “Option Exchange Ratio” is the quotient of (x) $16.25, plus (A) the Exchange Ratio multiplied by (B) the average of the closing prices of Buyer Common Stock for the thirty (30) trading days ending one (1) day prior to the assumed Seller Stock Options and shall use its reasonable efforts to maintain Closing, divided by (y) the effectiveness of such registration statement (and maintain the current status average of the prospectus or prospectuses contained thereinclosing prices of Buyer Common Stock for the thirty (30) for so long as such assumed Seller Stock Options remain outstanding. trading days ending one (c1) The number of Acquiror shares subject day prior to the converted or substituted Seller Stock Options and Closing, rounded to the exercise price therefore shallnearest one-hundred thousandth of a cent, from and after the date of this Agreement and the Effective Time, be subject to appropriate adjustment in the event of the occurrence of any transaction described in Section 5.17 hereof if the record date with respect to such transaction is on or after the date of this Agreement or the Effective Time, respectively$.000005 rounded down. (d) Each Seller Stock Option which is an incentive stock option as defined in Section 422 of the Code shall be adjusted as required by Section 424 of the Code, and the Regulations promulgated thereunder, so as to continue as an incentive stock option under Section 424(a) of the Code, and so as not to constitute a modification, extension or renewal of the option within the meaning of Section 424(h) of the Code. Acquiror and Seller agree to take all steps necessary to effectuate the foregoing provisions of this Section 2.8(d).