Common use of Stock Options; Restricted Stock Clause in Contracts

Stock Options; Restricted Stock. (a) The terms of each outstanding option (a “Company Stock Option”) to purchase shares of Company Stock under any employee stock option or compensation plan or arrangement of Company (a “Company Stock Option Plan”), whether or not exercisable or vested, shall be adjusted as necessary to provide that, at the Effective Time, Parent shall assume each Company Stock Option outstanding immediately prior to the Effective Time and each such Company Stock Option shall constitute an option to acquire on the same terms and conditions as were applicable under such Company Stock Option under the plan pursuant to which it was issued and the terms of the stock option agreement by which it is evidenced, the same number of shares of Parent Stock as the holder of such Company Stock Option would have been entitled to receive pursuant to the Merger had such holder exercised such Company Stock Option in full immediately prior to the Effective Time, at a price per share, rounded up to the nearest whole cent, of Parent Stock equal to (A) the aggregate exercise price for the shares of Company Stock otherwise purchasable pursuant to such Company Stock Option divided by (B) the aggregate number of shares of Parent Stock deemed purchasable pursuant to such Company Stock Option (each, as so adjusted, an “Adjusted Option”), provided that any fractional share of Parent Stock resulting from an aggregation of all the shares of a holder subject to Company Stock Option shall be rounded down to the nearest whole share, and provided further that, for any Company Stock Option intended to be an “incentive stock option” (as defined in Section 422 of the Code), the option price, the number of shares purchasable pursuant to such option and the terms and conditions of exercise of such option shall be determined in order to comply with Section 424 of the Code. (b) Each share of Company Stock which is unvested and has been issued pursuant to a Company Stock Option Plan (“Company Restricted Shares”) shall, at the Effective Time, be converted into the right to receive the number of shares of Parent Stock determined pursuant to the Exchange Ratio and the other provisions set forth in Section 2.02 (each share, as so converted, a “Converted Restricted Share”). Each Converted Restricted Share shall be subject to the same terms and conditions as were applicable under each corresponding Company Restricted Share under the applicable Company Stock Option Plan and the terms of the stock issuance agreement by which it is evidenced. It is acknowledged and agreed that if the employment of any holder of Company Restricted Shares is terminated by Company or Surviving Corporation without cause on or after the date of this Agreement, Company’s forfeiture rights shall immediately terminate automatically with respect to all unvested Restricted Shares then held by such holder and such unvested Restricted Shares held by such holder shall immediately vest in full. (c) Prior to the Effective Time, Company shall (i) use all reasonable efforts to obtain any consents from (A) holders of options to purchase shares of Company Stock granted under Company’s stock option or compensation plans or arrangements and (B) holder of Restricted Shares, (ii) make any amendments to the terms of such stock option, compensation plans, Restricted Shares or arrangements and (iii) take any other actions that are necessary to give effect to the transactions contemplated by this Section 2.04. Notwithstanding any other provision of this Section 2.04, payment may be withheld in respect of any employee stock option or Restricted Share until such necessary consents are obtained. (d) Parent shall take such actions as are necessary for the assumption of the Company Stock Options and Restricted Shares pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall within 10 business days after the Effective Time prepare and file with the SEC a registration statement on Form S-8 or another appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, with respect to the shares of Parent Stock subject to the Adjusted Option and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as is reasonably practicable following the Effective Time and maintain the effectiveness of such registration statement covering such Adjusted Option (and to maintain the current status of the prospectus contained therein) for so long as such Adjusted Option remains outstanding.

Stock Options; Restricted Stock. (a) The terms of At the Effective Time, each outstanding and unexercised option (a “Company Stock Option”) to purchase shares of Company Common Stock ("Company Options") under any employee stock option or compensation plan or arrangement of the Company's 2000 Equity Compensation Plan (the "Company (a “Company Stock Option Plan”"), whether by virtue of the Merger and without any action on the part of the parties hereto or not exercisable or vestedthe holders thereof, shall be adjusted exchanged for and replaced with an option (the "Corvis Option(s)") to purchase the number of shares of Corvis Common Stock set forth opposite such holder's name on Schedule II hereof ----------- and the exercise price per share of each such Corvis Option shall be as necessary set forth on Schedule II, subject to provide thatany adjustments for subsequent events provided ----------- for in the 2000 Corvis Long Term Incentive Plan (the "Corvis Option Plan") under which those options are to be granted and subject to adjustment in the number of such Corvis Options as provided in Sections 1.12(a) and (b) and 1.13 below. Each Corvis Option granted pursuant to this Section 1.8 and 1.13 shall be substantially similar in form to the form of Corvis Option Agreement attached hereto as Exhibit F, at and shall be subject to all the terms and conditions of the --------- Corvis Option Plan. (b) At the Effective Time, Parent shall assume each Company Stock Option outstanding immediately prior to the Effective Time and each such Company Stock Option shall constitute an option to acquire on the same terms and conditions as were applicable under such Company Stock Option under the plan pursuant to which it was issued and the terms of the stock option agreement by which it is evidenced, the same number of shares of Parent Stock as the holder of such Company Stock Option would have been entitled to receive pursuant to the Merger had such holder exercised such Company Stock Option in full immediately prior to the Effective Time, at a price per share, rounded up to the nearest whole cent, of Parent Stock equal to (A) the aggregate exercise price for the shares share of Company Restricted Stock otherwise purchasable pursuant to such Company Stock Option divided by (B) the aggregate number of shares of Parent Stock deemed purchasable pursuant to such Company Stock Option (each, as so adjusted, an “Adjusted Option”), provided that any fractional share of Parent Stock resulting from an aggregation of all the shares of a holder subject to Company Stock Option shall be rounded down to the nearest whole share, and provided further that, for any Company Stock Option intended to be an “incentive stock option” (as defined in Section 422 1.8(f) below), by virtue of the Code), Merger and without any action on the option price, the number of shares purchasable pursuant to such option and the terms and conditions of exercise of such option shall be determined in order to comply with Section 424 part of the Code. (b) Each share of Company Stock which is unvested and has been issued pursuant to a Company Stock Option Plan (“Company Restricted Shares”) shallholders thereof, at the Effective Time, shall be converted into the right to receive the that number of fully paid and non-assessable shares of Parent Corvis Common Stock determined pursuant to the Exchange Ratio and the other provisions set forth in Section 2.02 (opposite the name of each share, as so converted, a “Converted Restricted Share”). Each Converted Restricted Share shall be subject to the same terms and conditions as were applicable under each corresponding holder of such Company Restricted Share under the applicable Company Stock Option Plan and the terms of the stock issuance agreement by which it is evidencedon Schedule II hereto. It is acknowledged and agreed that if the employment of any holder of Company Restricted Shares is terminated by Company or Surviving Corporation without cause on or after the date of this Agreement, Company’s forfeiture rights shall immediately terminate automatically with respect to all unvested Restricted Shares then held by such holder and such unvested Restricted Shares held by such holder shall immediately vest in full.----------- (c) Prior to At the Effective Time, each share of Company shall Common Stock which is not Company Restricted Stock (i) use all reasonable efforts to obtain any consents from (A) holders exclusive of options to purchase shares of Company Common Stock, if any, held by Company Preferred Stockholders), by virtue of the Merger and without any action on the part of the holders thereof, shall be converted into the right to receive that number of fully paid and non-assessable shares of Corvis Common Stock granted under Company’s stock option or compensation plans or arrangements and (B) set forth opposite the name of each holder of Restricted Shares, (ii) make any amendments to the terms of such stock option, compensation plans, Restricted Shares or arrangements and (iii) take any other actions that are necessary to give effect to the transactions contemplated by this Section 2.04unrestricted Company Common Stock on Schedule II hereto. Notwithstanding any other provision of this Section 2.04, payment may be withheld in respect of any employee stock option or Restricted Share until such necessary consents are obtained.----------- (d) Parent The vesting of Company Options and Company Restricted Stock (as defined below) and any other warrant or right to acquire shares of Company Common Stock shall take such actions not accelerate as are necessary for a result of, or in connection with, the assumption transactions contemplated hereby. (e) At the Effective Time, the Company Option Plan shall be terminated and no further options or other rights to receive any right to acquire the capital stock of the Company Stock Options and Restricted Shares pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall within 10 business days after the Effective Time prepare and file with the SEC a registration statement on Form S-8 or another appropriate form, or a post-effective amendment to a registration statement previously filed be granted under the 1933 Act, with respect to the shares of Parent Stock subject to the Adjusted Company Option and, where applicable, shall use its reasonable best efforts to have such registration statement declared effective as soon as is reasonably practicable Plan following the Effective Time and maintain the effectiveness of such registration statement covering such Adjusted Option (and to maintain the current status of the prospectus contained therein) for so long as such Adjusted Option remains outstandingdate hereof, unless approved by Corvis which approval shall be in its sole discretion.

Stock Options; Restricted Stock. (a) The Before the Closing, the Board of Directors of WPC (or, if appropriate, any committee of the Board of Directors of WPC administering the WPC Stock Plans) shall adopt such resolutions or take such other actions as may be required to effect the following: (i) adjust the terms of each all outstanding option options to purchase WPC Common Shares (a the “Company WPC Stock OptionOptions”) to purchase shares of Company granted under the 2003 Management Stock under any employee stock option or compensation plan or arrangement of Company Incentive Plan (a the “Company WPC Stock Option Incentive Plan”), whether vested or not exercisable or vestedunvested, shall be adjusted as necessary to provide that, at the Effective Time, Parent shall assume each Company WPC Stock Option outstanding immediately prior to the Effective Time shall be amended and each such Company Stock Option shall constitute converted into an option to acquire acquire, on the same terms and conditions as were applicable under such Company the WPC Stock Option under the plan pursuant to which it was issued and the terms of the stock option agreement by which it is evidencedOptions, the same number of shares of Parent NewCo Common Stock as (rounded down to the holder nearest whole share) determined by multiplying the number of WPC Common Shares subject to such Company WPC Stock Option would have been entitled to receive pursuant to by the Merger had such holder exercised such Company Stock Option in full immediately prior to the Effective TimeWPC Exchange Ratio, at a price per share, rounded up to the nearest whole cent, share of Parent NewCo Common Stock equal to (A) the aggregate exercise price for the shares of Company Stock WPC Common Shares otherwise purchasable pursuant to such Company WPC Stock Option divided by (B) the aggregate number of shares of Parent NewCo Common Stock deemed purchasable pursuant to such Company WPC Stock Option (each, as so adjusted, a “WPC Adjusted Option”), provided that such exercise price shall be rounded up to the nearest whole cent; (ii) adjust the terms of all outstanding restricted stock unit awards (the “WPC Stock Unit Awards”) granted under the WPC Stock Incentive Plan as necessary to provide that, at the Effective Time, each WPC Stock Unit Award outstanding immediately prior to the Effective Time shall be converted into an award, on the same terms and conditions as were applicable under the WPC Stock Unit Award, of restricted stock units for shares of NewCo Common Stock (rounded down to the nearest whole share) determined by multiplying the number of WPC Common Shares subject to such WPC Stock Unit Award by the WPC Exchange Ratio (each, as so adjusted, an “Adjusted OptionWPC Stock Unit Award”); provided, provided that the Board of Directors of NewCo, or any fractional share applicable committee of Parent such Board, shall, if and to the extent it deems necessary or appropriate, adjust the levels of any performance criteria or goals applicable to vesting or such other terms of the Adjusted WPC Stock resulting from an aggregation Unit Award, in its discretion, to reflect the impact of all the shares of a holder transactions contemplated hereby, if any; and (iii) make such other changes to the WPC Stock Plans as WPC and Esmark may mutually agree are appropriate to give effect to the Combination, subject to Company Stock Option shall be rounded down to the nearest whole share, and provided further that, for any Company Stock Option intended to be an “incentive stock option” (as defined in Section 422 applicable provisions of the Code), the option price, the number of shares purchasable pursuant to such option and the terms and conditions of exercise of such option shall be determined in order to comply with Section 424 of the Coderelevant plan. (b) Each share Before the Closing, the Board of Company Stock which is unvested Directors of Esmark shall adopt such resolutions or take such other actions as may be required to effect the following: (i) adjust the terms of any outstanding rights to receive the Earn-Out Shares and has been issued pursuant warrants to a Company Stock Option Plan purchase shares of Esmark (each an “Company Restricted SharesEsmark Derivative”) shall), whether vested or unvested, as necessary to provide that, at the Effective Time, each Esmark Derivative outstanding immediately prior to the Effective Time shall be amended and converted into the a right to receive the number of shares of Parent Stock determined pursuant to the Exchange Ratio and the other provisions set forth in Section 2.02 (each shareacquire, as so converted, a “Converted Restricted Share”). Each Converted Restricted Share shall be subject to on the same terms and conditions as were applicable under such Esmark Derivative, the number of shares of NewCo Common Stock (rounded down to the nearest whole share) determined by multiplying the number of shares subject to such Esmark Derivative by the Esmark Exchange Amount, at a price per share of NewCo Common Stock equal to (A) the aggregate exercise price for the Esmark Common Shares otherwise purchasable pursuant to such Esmark Derivative divided by (B) the aggregate number of shares of NewCo Common Stock deemed purchasable pursuant to such Esmark Derivative (each, as so adjusted, an “Esmark Adjusted Derivative”), provided that such exercise price shall be rounded to the nearest whole cent; and (ii) make such other changes to the Esmark Derivative(s) as WPC and Esmark may mutually agree are appropriate to give effect to the Combination. (c) The adjustments provided herein with respect to any WPC Stock Options or Esmark Derivatives that are “incentive stock options” as defined in Section 422 of the Code shall be and are intended to be effected in a manner which is consistent with Section 424(a) of the Code. (d) At the Effective Time, by virtue of the Combination and without the need of any further corporate action, NewCo shall assume each corresponding Company Restricted Share under WPC Stock Option, WPC Stock Unit Award, and Esmark Derivative (collectively, the applicable Company Stock Option Plan and “Derivative Securities”) in accordance with the terms of the stock issuance under which it was issued and any applicable agreement by which it is evidenced. It is acknowledged and agreed that if the employment of any holder of Company Restricted Shares is terminated by Company At or Surviving Corporation without cause on or after the date of this Agreement, Company’s forfeiture rights shall immediately terminate automatically with respect to all unvested Restricted Shares then held by such holder and such unvested Restricted Shares held by such holder shall immediately vest in full. (c) Prior prior to the Effective Time, Company NewCo shall (i) use take all reasonable efforts corporate action necessary to obtain any consents from (A) holders reserve for issuance a sufficient number of options to purchase shares of Company NewCo Common Stock granted under Company’s stock option or compensation plans or arrangements and (B) holder for delivery upon exercise of Restricted Shares, (ii) make any amendments to the terms of such stock option, compensation plans, Restricted Shares or arrangements and (iii) take any other actions that are necessary to give effect to the transactions contemplated Derivative Securities assumed by it in accordance with this Section 2.042.8. Notwithstanding any other provision of this Section 2.04, payment may be withheld in respect of any employee stock option or Restricted Share until such necessary consents are obtained. (d) Parent shall take such actions As soon as are necessary for the assumption of the Company Stock Options and Restricted Shares pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall within 10 business days practicable after the Effective Time prepare and Time, NewCo shall file with the SEC a registration statement on Form S-8 S-3 or Form S-8, as the case may be (or any successor or other appropriate forms), or another appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, form with respect to the shares of Parent NewCo Common Stock subject to the Adjusted Option andsuch Derivative Securities, where applicable, and shall use its commercially reasonable best efforts to have such registration statement declared effective as soon as is reasonably practicable following the Effective Time and maintain the effectiveness of such registration statement covering such Adjusted Option (and to maintain the current status of the prospectus or prospectuses contained therein) for so long as such Adjusted Option remains Derivative Securities remain outstanding. (e) As soon as practicable after the Effective Time, NewCo shall deliver to each holder of Derivative Securities appropriate notices setting forth such holder’s rights pursuant thereto and such Derivative Security shall continue in effect on the same terms and conditions, after giving effect to the Combination and subject to the adjustments required by this Section 2.8. (f) Except as otherwise contemplated by this Section 2.8 and except to the extent required under the respective terms of the Derivative Securities, all restrictions or limitations on transfer and vesting with respect to the Derivative Securities awarded under the Stock Plans or any other plan, program or arrangement of WPC or Esmark or any of their respective Subsidiaries, to the extent that such restrictions or limitations shall not have already lapsed, shall remain in full force and effect with respect to such Derivative Securities after giving effect to the Combination and the assumption by NewCo as set forth above.

Stock Options; Restricted Stock. (a) The terms of each outstanding Each option to purchase Target Common Shares (each, a “Company Stock Target Option”) to purchase shares granted under the employee and director stock plans and agreements of Company Target (the “Target Stock under any employee stock option or compensation plan or arrangement of Company (a “Company Stock Option PlanPlans”), whether vested or not exercisable or vestedunvested, shall be adjusted as necessary to provide that, at the Effective Time, Parent shall assume each Company Stock Option that is outstanding immediately prior to the Effective Time shall, as of the Effective Time and each such Company Stock Option shall constitute an option to acquire in accordance with its terms, automatically and without any action on the part of the holders thereof, be converted into a vested Parent Option, on the same terms and conditions (except as provided in this Section 3.2) as were applicable under such Company Stock Target Option under the plan pursuant to which it was issued and the terms of the stock option agreement by which it is evidenced, the same number of shares of Parent Stock as the holder of such Company Stock Option would have been entitled to receive pursuant to the Merger had such holder exercised such Company Stock Option in full immediately prior to the Effective Time, at a to purchase that number of Parent Common Shares equal to the product of (i) the total number of Target Common Shares subject to such Target Option and (ii) the Exchange Ratio, rounded down to the nearest whole number of Parent Common Shares; provided that, in the event of rounding down of any fractional Parent Common Shares, Parent shall pay an amount in cash (without interest) in accordance with Section 3.2(a). The per-share exercise price for the Parent Common Shares issuable upon exercise of such Parent Options will be equal to the quotient determined by dividing (A) the exercise price per shareshare of the Target Common Shares at which the Target Options were exercisable immediately prior to the Effective Time by (B) the Exchange Ratio, rounded and rounding to the resulting per-share exercise price up to the nearest whole cent. Notwithstanding the foregoing, (x) in no event shall the per-share exercise price be less than the par value of Parent Stock equal to (A) the aggregate exercise price for the shares of Company Stock otherwise purchasable pursuant to such Company Stock Option divided by (B) the aggregate number of shares of Parent Stock deemed purchasable pursuant to such Company Stock Option (each, as so adjusted, an “Adjusted Option”), provided that any fractional share of Parent Stock resulting from an aggregation of all the shares of a holder subject to Company Stock Option shall be rounded down to the nearest whole shareCommon Shares, and provided further that, for (y) in any Company Stock Option intended to be an “incentive stock option” (as defined in Section 422 of event the Code), the option exercise price, the number of shares Parent Common Shares purchasable pursuant to such option Target Option and the terms and conditions of exercise of such option Target Option shall be determined in order accordance with the requirements of Section 424(a) of the Code and in a manner that does not cause any Target Option to comply with be deferred compensation subject to Section 424 409A of the Code. Prior to Closing, (1) Parent will take all corporate actions necessary to reserve for issuance a sufficient number of Parent Common Shares for delivery upon exercise of Target Options assumed by Parent under this Section 3.2(a) and (2) Target shall pass such resolutions as necessary to approve the terms of this Section 3.2(a). (b) Each share award of Company restricted Target Common Shares granted under a Target Stock which Plan that is unvested and has been issued pursuant outstanding immediately prior to a Company Stock Option Plan the Effective Time (the “Company Target Restricted Shares”) shall, at as of the Effective Time and in accordance with its terms, automatically and without any action on the part of the holders thereof, vest and be converted, on the same terms and conditions (except as provided in this Section 3.2(b)) as were applicable under such Target Restricted Shares immediately prior to the Effective Time, into a number of Parent Common Shares equal to the product of (i) the total number of Target Common Shares subject to such grant of Target Restricted Shares and (ii) the Exchange Ratio; provided that, in lieu of any fractional Parent Common Shares, Parent shall pay an amount in cash (without interest) in accordance with Section 3.4. Prior to the Closing Date, Target shall take all action necessary to ensure that each holder of Target Restricted Shares that will be converted into the right to receive Parent Common Shares executes an Orderly Marketing Deed, substantially in the number of shares of Parent Stock determined pursuant to the Exchange Ratio and the other provisions set forth in Section 2.02 (each share, form attached hereto as so converted, a “Converted Restricted Share”Exhibit 3.2(b). Each Converted Restricted Share shall be subject to the same terms and conditions as were applicable under each corresponding Company Restricted Share under the applicable Company Stock Option Plan and the terms of the stock issuance agreement by which it is evidenced. It is acknowledged and agreed that if the employment of any holder of Company Restricted Shares is terminated by Company or Surviving Corporation without cause on or after the date of this Agreement, Company’s forfeiture rights shall immediately terminate automatically with respect to all unvested Restricted Shares then held by such holder and such unvested Restricted Shares held by such holder shall immediately vest in full. (c) Prior to As soon as practicable after the Effective Time, Company shall (i) use all reasonable efforts to obtain any consents from (A) holders of options to purchase shares of Company Stock granted under Company’s stock option or compensation plans or arrangements and (B) holder of Restricted Shares, (ii) make any amendments to the terms of such stock option, compensation plans, Restricted Shares or arrangements and (iii) take any other actions that are necessary to give effect to the transactions contemplated by this Section 2.04. Notwithstanding any other provision of this Section 2.04, payment may be withheld in respect of any employee stock option or Restricted Share until such necessary consents are obtained. (d) Parent shall take such actions as are necessary for the assumption of the Company Stock Options and Restricted Shares pursuant to this Section 2.04, including the reservation, issuance and listing of Parent Stock as is necessary to effectuate the transactions contemplated by this Section 2.04. Parent shall within 10 business days after the Effective Time prepare and will file with the SEC Securities and Exchange Commission a registration statement on Form S-8 (or another any successor or other appropriate form, or a post-effective amendment to a registration statement previously filed under the 1933 Act, forms) with respect to the shares of Parent Stock Common Shares subject to stock options and the Adjusted Option and, where applicable, shall restricted Parent Common Shares and will use its reasonable best efforts to have such registration statement declared effective as soon as is reasonably practicable following the Effective Time and maintain the effectiveness of such registration statement covering such Adjusted Option (and to maintain the current status of the prospectus or prospectuses contained therein) for so as long as such Adjusted Option remains options remain outstanding. (d) Prior to the Closing Date, Parent’s Board of Directors shall take all action necessary to declare that the Transactions shall not constitute a “change in control” with respect to (i) the options to purchase Parent Common Shares (the “Parent Options”) and (ii) the outstanding awards of restricted stock issued by Parent pursuant to Parent’s stock incentive or other equity award plans (the “Parent Restricted Shares”). In connection with the Transactions, Parent’s Board of Directors shall not exercise any suspension or other remedial measures that may be available to it under Section 8 of the Bylaws of Parent.