Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following: (a) Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, (x) each then outstanding option granted under any Stock Plan, or granted other than pursuant to such Stock Plans (together, the “Options”), whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes). (b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Plans or anyone other than Parent shall hold or have any right to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereof.
Appears in 2 contracts
Samples: Merger Agreement (Rent a Center Inc De), Merger Agreement (Rent Way Inc)
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior Without limiting the generality or effect of Sections 2.6 or 2.8 and notwithstanding the provisions hereof applicable to the Effective TimeRights, the Company shall take all actions necessary will use its reasonable best efforts (which include satisfying the requirements of Rule 16b-3(e) promulgated under Section 16 of the Exchange Act, without incurring any liability in connection therewith) to provide that, at the Effective Time, (x) each then holder of a then-outstanding option granted to purchase Shares under any Stock Plan, the Company's stock option plans set forth or granted other than pursuant required to such Stock Plans be set forth in Section 2.9 of the Company Disclosure Letter (togethercollectively, the “Options”"STOCK OPTION PLANS") (true and correct copies of which have been delivered or made available by Company to Parent), whether or not then exercisable or vested(the "OPTIONS"), shall be cancelled will, in exchange for the right to settlement thereof, receive from the Surviving Corporation Company for each Share subject to such Option an amount (subject to any applicable withholding tax) in cash in respect thereof equal to the product of (i) difference between the excess, if any, of the Common Stock Merger Consideration over and the per share Share exercise price of such OptionOption to the extent such difference is a positive number (such amount being hereinafter referred to as, multiplied by (ii) the number "OPTION CONSIDERATION"). Notwithstanding anything herein stated, no Option Consideration will be paid with respect to any Option unless, at or prior to the time of shares of Company Common Stock subject to such payment, such Option is canceled and (y) each then outstanding restricted stock unit granted under the holder of such Option has executed and delivered a release of any Stock Plan, whether and all rights the holder had or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash may have had in respect thereof equal to the Common Stock Merger Consideration (of such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes)Option.
(b) Without limiting the generality or effect of Sections 2.6 or 2.8 and notwithstanding the provisions hereof applicable to the Rights, prior to the Effective Time, Company will use its reasonable best efforts to obtain all necessary consents or releases from holders of Options under the Stock Option Plans and take all such other lawful action as may be necessary to give effect to the transactions contemplated by this Section 2.9. Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Option Plans to will terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any other interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect Subsidiary thereof, including the Directors' Retainer Stock Deferral Plan, will be canceled as of the Effective Time and (ii) the Company shall ensure will use its reasonable best efforts to assure that following the Effective Time no holder of Options or other awards or any participant in the Stock Option Plans or anyone such other than Parent shall hold plans, programs or arrangements will have any right thereunder to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereofthereof and to terminate all such plans and any Options or other Rights thereunder. Notwithstanding the foregoing, as requested by Parent, the Company will use its reasonable best efforts to assure that following the date of this Agreement, no participant in the 1994 Employee Stock Purchase Plan will have any right to change any election or increase his contribution thereunder, and the Company will take all such actions as may be available to it to cause such plan to be suspended in respect of equity securities of the Company or the Surviving Corporation(other than as to Shares payment for which was deducted from employees' payroll at or prior to the date hereof).
Appears in 2 contracts
Samples: Merger Agreement (Federated Department Stores Inc /De/), Merger Agreement (Fingerhut Companies Inc)
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the Board of Directors of Company shall adopt appropriate resolutions and take all other actions necessary to provide that, at the Effective Time, (x) cause each then holder of an issued and outstanding option granted under any Stock Plan, or granted other than pursuant similar right to such Stock Plans (together, the “Options”)purchase Common Stock, whether or not then vested or exercisable (an "Option") pursuant to any stock option or vestedsimilar plans, shall be cancelled agreements or arrangements of Company including any related award agreements (collectively, the "Stock Plans"), to enter into an Option Cancellation Agreement, in substantially the form attached to this Agreement as Exhibit A (an "Option Cancellation Agreement"), pursuant to which such holder will agree to cancellation of his or her Options immediately prior to the Effective Time in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the product of (i) the excess, if any, of amount by which the Common Stock Merger Consideration over exceeds the per share applicable exercise price of such Option, multiplied by Option (as provided in the Option Cancellation Agreement) or (ii) such other amount as may be agreed upon with any holder of an Option that is exercisable at a price less than the number Merger Consideration, provided that the aggregate amount payable pursuant to this Section 1.09 shall not exceed the amount set forth in Schedule 1.09 and, in each case, net of shares such amounts as may be required to be deducted and withheld with respect to the making of Company Common Stock subject to such Option payment under the Code or any provision of state, local or foreign tax law. To the extent that any amounts are so deducted and (y) each then outstanding restricted stock unit granted under any Stock Planwithheld, whether or not then vested, those amounts shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal treated as having been paid to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net holder of applicable withholding Taxes).
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the that Option for all purposes under this Agreement. Company shall cause the take all action to ensure that all Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any other interest in respect of the capital stock of the Company or any of its Subsidiaries to Subsidiary, shall automatically terminate and have no further force or effect as of the Effective Time Time, and (ii) that any holder of issued and outstanding awards thereunder will have no rights other than the Company shall ensure that following right to receive the payment in cancellation and settlement thereof as provided in the Option Cancellation Agreement. Prior to the Effective Time no holder Time, the Board of Options Directors, or other awards or any participant in the Stock Plans or anyone other than Parent Option Committee thereof, shall hold or have any right to acquire any equity securities adopt a resolution consistent with the interpretive guidance of the Company, SEC to approve the Surviving Corporation disposition by any officer or any Subsidiary thereofdirector of Company who is a covered person of Company for purposes of Section 16 under the Exchange Act of Shares or Options pursuant to this Agreement and the Merger for purposes of qualifying the disposition as an exempt transaction under Section 16 under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Cpac Inc), Merger Agreement (Cpac Inc)
Stock Plans. The (a) Subject to Sections 2.09(b) through (h) inclusive and except as set forth on Company Disclosure Schedule 2.09(a), prior to the expiration of the Offer, the Company’s Board of Directors (or, if appropriate, any other committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)thereof) shall adopt such appropriate resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the Company shall and take all other actions necessary to provide that, at the Effective Time, (x) each then outstanding option granted under any Stock Plan, or granted other than pursuant to such Stock Plans (together, the “Options”), whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the product of (i) the excesstermination or cancellation, if anyas applicable, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes).
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Plans to terminate effective as of the Effective Time and cause subject to the provisions Purchaser purchasing the requisite shares of Common Stock in any other planthe Offer, program or arrangement providing of all stock options for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any Company Subsidiary (collectively, the “Options”), and stock option plans or any other plan, program or arrangement providing for the issuance or grant of its Subsidiaries any interest in respect of the capital stock of the Company or any Company Subsidiary (the “Stock Plans”). Subject to terminate Sections 2.09(b) through (h) inclusive and have except as set forth on Company Disclosure Schedule 2.09(a), immediately prior to the Effective Time, each such Option (whether vested or unvested) shall no further force longer be exercisable and shall be cancelled or effect as terminated without any payment therefor.
(b) Prior to the expiration of the Offer, the Company’s Board of Directors (or any other committee thereof) shall adopt appropriate resolutions and take all other actions necessary to provide for the automatic acceleration of vesting and the conversion, effective at the Effective Time and subject to the Purchaser purchasing the requisite shares of Common Stock in the Offer, of any options to acquire shares of Common Stock with an exercise price that is less than the Offer Price, both vested and unvested, and which are outstanding at the time of the commencement of the Offer (ii“In-the-Money Option(s)”), into the right, in full settlement thereof, to receive a payment in cash by the Company (subject to any applicable withholding taxes), through the Paying Agent, equal to the product of (a) the total number of shares of Common Stock subject to such In-the-Money Options and (b) the excess, if any, of the Merger Consideration over the exercise price per share of Common Stock subject to such In-the-Money Options (such amounts payable hereunder being referred to as the “In-the-Money Option Cash Payment(s)”), without payment to the Company of the exercise price under such In-the-Money Options. The Company’s obligations with respect to the payment of the In-the-Money Option Cash Payments shall ensure that be conditioned on consummation of the Merger at the Effective Time.
(c) The Surviving Corporation shall, following the Effective Time no Time, make available or cause to be made available to the Paying Agent cash in amounts necessary for the payment of the aggregate In-the-Money Option Cash Payments under Section 2.09(b) to which holders of such rights shall be entitled at the Effective Time. Such funds shall be invested by the Paying Agent as directed by the Surviving Corporation. Any net profits resulting from, or interest or income produced by, such investments shall be payable as directed by the Surviving Corporation.
(d) As soon as reasonably practicable after the Effective Time, the Surviving Corporation shall cause the Paying Agent to mail to each holder of Options record of an In-the-Money Option a copy of an Option Cancellation Agreement, substantially in the form attached hereto as Exhibit A (“Option Cancellation Agreement”), together with a letter (which shall be in a form and have such other provisions as the Surviving Corporation may reasonably specify) including instructions for effecting the surrender of the Option Cancellation Agreements in exchange for the In-the-Money Option Cash Payments pursuant to Section 2.09(b), as applicable. No In-the-Money Option Cash Payment will be made by the Paying Agent on behalf of the Company with respect to an In-the-Money Option, to the holder thereof until receipt by the Company or the Paying Agent, as applicable, of an Option Cancellation Agreement with respect to the related In-the-Money Option, properly completed and signed by the record holder of such In-the-Money Option. The Company (prior to the Effective Time), and the Surviving Corporation (after the Effective Time), shall be required to deliver to the Paying Agent all such executed Option Cancellation Agreements promptly after receipt. Upon proper delivery of an Option Cancellation Agreement to the Paying Agent or to such other agent or agents as may be appointed by the Surviving Corporation, duly executed, and such other documents as may reasonably be required by the Paying Agent, the holder of such Option Cancellation Agreement shall be entitled to receive in exchange therefor the amount of the In-the-Money Option Cash Payment pursuant to Section 2.09(b), without interest.
(e) If any payment pursuant to this Section 2.09 is to be made to a Person other than the Person in whose name an In-the-Money Option is registered, it shall be a condition to such payment that the Option Cancellation Agreement so delivered shall be properly endorsed or shall be otherwise in proper form for transfer and that the Person requesting such payment shall have paid any transfer and other taxes required by reason of such payment in a name other than that of the registered holder of the In-the-Money Option or shall have established to the satisfaction of Parent or the Paying Agent that such tax either has been paid or is not payable.
(f) Promptly following the date which is six months after the Effective Time, the Paying Agent shall deliver to the Surviving Corporation all cash, certificates and other documents in its possession relating to the transactions contemplated by this Section 2.09, and the Paying Agent’s duties shall terminate. Thereafter, each holder of an In-the-Money Option canceled pursuant to this Section 2.09 shall look only to the Surviving Corporation (subject to abandoned property, escheat or other awards or similar Laws) and only as general creditors thereof, with respect to any participant in In-the-Money Option Cash Payment that may be payable upon due surrender of an Option Cancellation Agreement, duly completed and executed. Notwithstanding the Stock Plans or anyone other than Parent shall hold or have any right to acquire any equity securities foregoing, none of Parent, Purchaser, the Company, the Surviving Corporation or the Paying Agent shall be liable to any Subsidiary Person in respect of any cash delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(g) The Surviving Corporation (or any Affiliate thereof) or the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Section 2.09 such amounts as the Surviving Corporation or the Paying Agent is required to deduct and withhold with respect to the making of such payment under the Code, or under any provision of state, local or foreign tax Law. To the extent that amounts are so withheld by Surviving Corporation or the Paying Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the recipient of such payments in respect of which such deduction and withholding was made by the Surviving Corporation or the Paying Agent.
(h) All In-the-Money Option Cash Payments shall be deemed to have been paid in full satisfaction of all rights pertaining to the respective In-the-Money Options.
Appears in 2 contracts
Samples: Merger Agreement (Sunterra Corp), Merger Agreement (Diamond Resorts, LLC)
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the The Company shall take all actions necessary to provide that, at upon consummation of the Effective TimeMerger, (xi) each then outstanding option to purchase shares of Company Common Stock (the "Options") granted under any Stock Planof the Company's stock option plans referred to in Section 4.2, or each as amended (collectively, the "Option Plans), and any and all other outstanding options, stock warrants and stock rights granted other than pursuant to such Stock Plans (togetherstock option plans or otherwise, the “Options”)and in each case, whether or not then exercisable or vested, shall be cancelled canceled and (ii) in exchange for consideration of such cancellation, the right Company shall pay to receive from the Surviving Corporation each such holder of an Option an amount in cash in respect thereof equal to the product of (iA) the excess, if any, of the Common Stock Merger Consideration Per Share Amount over the per share exercise price of such Option, multiplied by thereof and (iiB) the number of shares of Company Common Stock Shares subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration thereto (such payments payment to made by the Company through its customary payroll procedures and be net of applicable withholding Taxestaxes). The Company may elect at any time prior to the consummation of the Offer to have the foregoing actions take effect, with respect to some or all the Options, upon consummation of the Offer, in which case the Company shall provide written notice of such action to Parent. If the Company so elects and if, upon consummation of the Offer, Purchaser shall have acquired at least 50 percent of the outstanding Shares, Parent shall as promptly as practicable following such consummation provide the Company with the funds necessary to satisfy any of the Company's obligations that arise in connection with such acquisition of Shares under (i) this Section 2.9(a), (ii) any severance plans or benefits or change in control or employment agreements between the Company and any of its employees, as set forth in any Schedule attached hereto, (iii) the Amended and Restated Credit Agreement dated as of June 30, 1998 among the Company, the Lenders listed therein, Canadian Imperial Bank of Commerce, as documentation agent, NationsBank, N.A., as syndication agent, and Bankers Trust Company, as administrative agent, as amended, and (iv) the Indenture dated as of March 24, 1997 between the Company and the Bank of New York, as trustee.
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Option Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement arrangement, providing for the issuance or grant by the Company or any of its Subsidiaries of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect shall be deleted as of the Effective Time Time.
(c) The Company represents and (ii) warrants that all the Option Plans provide that the Company shall ensure that following can take the actions described in Section 2.9(a) without obtaining the consent of any holders of Options.
(d) Prior to the Effective Time no holder Time, the Board of Options or other awards or any participant in the Stock Plans or anyone other than Parent Directors shall hold or have any right take all commercially reasonable action to acquire any equity securities of terminate the Company, the Surviving Corporation or any Subsidiary thereof's Employee Stock Purchase Plan and to return all shares of stock and cash accumulated in each participant's account to such participants.
Appears in 2 contracts
Samples: Merger Agreement (Burns International Services Corp), Merger Agreement (Securitas Acquisition Corp)
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to Not later than the Effective Time, the Company shall take all actions necessary to provide that, either (i) at the Effective Time (or to the extent practicable, immediately prior to the time (the “Purchase Time”) at which the Purchaser consummates the purchase of tendered Shares pursuant to the Offer), (x) each then outstanding option granted under any to purchase shares of Company Common Stock Plan, or granted other than pursuant to such Stock Plans (together, the “Options”) granted under any of the Company’s stock option plans listed in Section 4.3 of the Company Disclosure Schedule, each as amended (collectively, the “Option Plans”), or granted otherwise, whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive from Merger Sub or the Surviving Corporation an amount in cash in respect thereof equal to the product of (ix) the excess, if any, of the Common Stock Merger Consideration Offer Price over the per share exercise price of such Option, multiplied by thereof and (iiy) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration thereto (such payments payment to made by the Company through its customary payroll procedures and be net of applicable withholding Taxes)) or (ii) any Option that is not cancelled as described in Section 2.7(a)(i) above shall represent, upon exercise on or after the Effective Time, the right to receive Company Common Stock which has been converted into the right to receive the Merger Consideration.
(b) Except as provided herein or as otherwise agreed to by the partiesparties and to the extent permitted by the Option Plans, (i) the Company shall cause the Stock Option Plans to terminate as of no later than the Effective Time and and, except as set forth in Section 2.7(c), cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Option Plans or anyone other than Parent Purchaser shall hold or have any right to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereof.
(c) Substantially concurrently with the approval of this Agreement, the Compensation Committee of the Company Board will take any and all actions with respect to the Company’s Employee Stock Purchase Plan (the “ESPP”) as are necessary to provide that: (i) all offering periods under the ESPP will be immediately suspended and any contributions made for the current offering periods will be returned to ESPP participants, and (ii) the ESPP will terminate, effective immediately as of the Purchase Time, except that all administrative and other rights and authorities granted under the ESPP to the Company, the Company Board or any committee or designee thereof shall remain in effect and reside with the Company following the Purchase Time.
Appears in 2 contracts
Samples: Merger Agreement (Whole Foods Market Inc), Merger Agreement (Wild Oats Markets Inc)
Stock Plans. The Prior to the mailing of the Proxy Statement, the Board of Directors of the Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each Stock Plans (as amended (collectively, the “Stock Plans”defined below)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior Adjust the terms of all outstanding employee stock options to purchase shares of Company Common Stock ("Company Stock Options") granted under either the Effective TimeCompany's Restated 1982 Incentive Stock Option Plan or the Company's Stock Option Plan of 1993 (collectively, the Company shall take all actions necessary "Option Plans") to provide that, at the Effective Time, (x) each then Company Stock Option outstanding option granted under any Stock Plan, or granted other than pursuant immediately prior to such Stock Plans (together, the “Options”)Effective Time, whether or not then exercisable or vestedexercisable, shall be cancelled in exchange for and thereafter the right former holder thereof shall be entitled by having held such Company Stock Option only to receive a payment from the Surviving Corporation an amount in cash in respect thereof (subject to any applicable withholding taxes) equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option and (yii) each then outstanding restricted stock unit granted under the excess of $27.00 over the exercise price per share of Company Common Stock subject to such Company Stock Option, payable in cash immediately following the Effective Time; provided, however, that, at the request of any Stock Planperson subject to Section 16(a) of the Securities Exchange Act of 1934, whether or not then vestedas amended ("Exchange Act"), any such amount to be paid shall be cancelled in exchange paid as soon as practicable after the first date payment can be made without liability for such person under Section 16(b) of the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes)Exchange Act.
(b) Except as provided herein or as otherwise agreed to in writing by Parent, the partiesOption Plans, the Company's Employee Stock Purchase Plan, as amended (i) the Company shall cause the "Stock Plans to terminate as of the Effective Time Purchase Plan"), and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to subsidiary (collectively, the "Stock Plans") shall terminate and have no further force or effect as of the Effective Time Time, and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or a Company Stock Option nor any participant in any of the Stock Plans or anyone other than Parent shall hold or have any right thereunder to acquire any equity securities of the Company, Company or the Surviving Corporation or any Subsidiary thereofCorporation.
Appears in 1 contract
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the The Company shall take all actions necessary to provide that, at upon consummation of the Effective TimeMerger, (xi) each then outstanding option to purchase shares of Company Common Stock (the "Options") granted under any Stock Planof the Company's stock option plans referred to in Section 4.2, or each as amended (collectively, the "Option Plans), and any and all other outstanding options, stock warrants and stock rights granted other than pursuant to such Stock Plans (togetherstock option plans or otherwise, the “Options”)and in each case, whether or not then exercisable or vested, shall be cancelled canceled and (ii) in exchange for consideration of such cancellation, the right Company shall pay to receive from the Surviving Corporation each such holder of an Option an amount in cash in respect thereof equal to the product of (iA) the excess, if any, of the Common Stock Merger Consideration Per Share Amount over the per share exercise price of such Option, multiplied by thereof and (iiB) the number of shares of Company Common Stock Shares subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration thereto (such payments payment to made by the Company through its customary payroll procedures and be net of applicable withholding Taxestaxes). The Company may elect at any time prior to the consummation of the Offer to have the foregoing actions take effect, with respect to some or all the Options, upon consummation of the Offer, in which case the Company shall provide written notice of such action to Parent. If the Company so elects and if, upon consummation of the Offer, Purchaser shall have acquired at least 90 percent of the outstanding Shares, Parent shall as promptly as practicable following such consummation provide the Company with the funds necessary to satisfy its obligations under this Section 2.9(a).
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Option Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement arrangement, providing for the issuance or grant by the Company or any of its subsidiaries of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect shall be deleted as of the Effective Time Time.
(c) The Company represents and (ii) warrants that all the Option Plans provide that the Company shall ensure that following can take the actions described in Section 2.9(a) without obtaining the consent of any holders of Options.
(d) Prior to the Effective Time no holder Time, the Board of Options or other awards or any participant in the Stock Plans or anyone other than Parent Directors shall hold or have any right take all commercially reasonable action to acquire any equity securities of terminate the Company, the Surviving Corporation or any Subsidiary thereof's Employee Stock Purchase Plan and to return all shares of stock and cash accumulated in each participant's account to such participants.
Appears in 1 contract
Stock Plans. The Prior to the mailing of the Proxy Statement, the Board of Directors of Parent and the Board of Directors of the Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each Stock Plans (as amended (collectively, the “Stock Plans”defined below)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior Adjust the terms of all outstanding employee stock options to purchase shares of Company Common Stock ("Compa- ny Stock Options") granted under any of the Effective TimeCompany's 1979 Non- Qualified Stock Option Plan, as amended, 1982 Incentive Stock Option Plan, as amended, and 1992 Stock Option Plan (collective- ly, the Company shall take all actions necessary "Option Plans"), to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall (xexcept to the extent that Parent and the holder of a Company Stock Option otherwise agree in writing prior to the Effective Time): (i) each then outstanding option granted under any if such Company Stock PlanOption is vested before the Merger and exercisable and has an exercise price of less than $50, or granted other than pursuant and the holder of such Company Stock Option shall have elected by written notice to such Stock Plans Parent prior to the date 15 business days prior to the Effective Time to receive the payment contemplated by this clause (together, the “Options”i), whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive a payment from the Surviving Corporation an amount in cash in respect thereof (subject to any applicable withholding taxes) equal to the product of (i1) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option and (y2) each then outstanding restricted stock unit granted under the excess of $50 over the exercise price per share of Company Common Stock subject to such Company Stock Option, payable in cash immediately following the Effective Time; provided, however, that, at the request of any Stock Planperson subject to Section 16(a) of the Securities Exchange Act of 1934, whether or not then vestedas amended ("Exchange Act"), any such amount to be paid shall be paid as soon as practicable after the first date payment can be made without liability for such person under Section 16(b) of the Exchange Act; or (ii) with respect to any Company Stock Option not cancelled in exchange for pursuant to clause (i) above, be deemed to consti- tute an option to acquire, on the right to receive from same terms and conditions as were applicable under such Company Stock Option, the Surviving Corporation an amount in cash in respect thereof number of shares of Class B Stock equal to the product of (1) the number of shares of Company Common Stock Merger Consideration issuable upon exercise of such Option and (2) the Class B Exchange Ratio, provided that any fractional shares of Class B Stock resulting from such payments multipli- cation shall be rounded up or down to made the nearest whole share, at a price per share equal to (1) the exercise price for the shares of Company Common Stock otherwise purchasable pursuant to such Company Stock Option divided by (2) the Company through its customary payroll procedures and net of applicable withholding Taxes)Class B Exchange Ratio, provided that such exercise price shall be rounded up or down to the nearest cent.
(b) Adjust the terms of the Company's 1984 Restricted Stock Compensation Plan, as amended (the "Restricted Stock Plan"), which (or a plan substantially identical thereto) the Surviving Corporation shall adopt, to provide (i) that, at the Effective Time, the Merger Consideration into which each share of Company Common Stock subject at such time to the Restricted Stock Plan is converted shall thereafter be free of the requirement under the Restricted Stock Plan that such shares be held in escrow for the periods set forth therein, and (ii) that, after the Effective Time, no further grants of Company Common Stock or any other interest in the capital stock of the Company shall be made under the Restricted Stock Plan.
(c) Except as provided herein or as otherwise agreed to in writing by the parties, the Option Plans, the Restricted Stock Plan, the Company's Employee Stock Purchase Plan, as amended (ithe "Stock Purchase Plan") and the Company shall cause the Nonemployee Directors Stock Plans to terminate as of the Effective Time Plan, and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to subsidiary (collectively, the "Stock Plans") shall terminate and have no further force or effect as of the Effective Time Time, and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or a Company Stock Option nor any participant in any of the Stock Plans or anyone other than Parent shall hold or have any right thereunder to acquire any equity securities securi- ties of the Company, Company or the Surviving Corporation or any Subsidiary thereofCorporation.
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Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the Company The Board of Directors or any relevant committee thereof shall take all actions necessary to provide such that, at the Effective Time, (x) each then outstanding option granted under any to purchase shares of Company Common Stock Plan, or granted other than pursuant to such Stock Plans (togethercollectively, the “Options”), whether granted under (i) the Amended and Restated Strategic Distribution, Inc. 1996 Non-Employee Director Stock Plan, as amended (the “Non-Employee Director Plan”), (ii) the Strategic Distribution, Inc. Amended and Restated 1990 Incentive Stock Option Plan, as amended (the “1990 Plan”), (iii) the Strategic Distribution, Inc. 1999 Incentive Stock Option Plan, as amended (the “1999 Plan” and, together with the Non-Employee Director Plan and the 1990 Plan, the “Option Plans”), or otherwise, and whether or not then exercisable or vested, (i) shall become exercisable and vested at the Effective Time, (ii) shall be cancelled canceled in exchange for the right payment referred to receive from in the immediately following sentence if the exercise price is less than the Per Share Amount (such Options, “In-the-Money Options”), and (iii) shall be canceled without any payment if the exercise price is less than the Per Share Amount. Promptly following the Effective Time, the Surviving Corporation shall pay to each holder of an Option with respect to each In-the-Money Option an amount in cash in respect thereof equal to the product of obtained by multiplying (ix) the excessamount, if any, of by which the Common Stock Merger Consideration over Per Share Amount exceeds the per share exercise price of relating to such In-the-Money Option, multiplied by (iiy) the number of shares of Company Common Stock subject to such In-the-Money Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments payment to made by the Company through its customary payroll procedures and be net of applicable withholding Taxes).
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Option Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate shall be terminated and shall have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Option Plans or anyone any other than Parent plan, program or arrangement of the Company shall hold or have any right to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereof(as defined in Section 4.3(a)) or subsidiary of the Surviving Corporation.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Strategic Distribution Inc)
Stock Plans. The Prior to the mailing of the Proxy Statement, the Board ----------- of Directors of Parent and the Board of Directors of the Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each Stock Plans (as amended (collectively, the “Stock Plans”defined below)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior Adjust the terms of all outstanding employee stock options to purchase shares of Company Common Stock ("Company Stock Options") granted under any of the Effective TimeCompany's 1979 Non-Qualified Stock Option Plan, as amended, 1982 Incentive Stock Option Plan, as amended, and 1992 Stock Option Plan (collectively, the Company shall take all actions necessary "Option Plans"), to provide that, at the Effective Time, each Company Stock Option outstanding immediately prior to the Effective Time shall (xexcept to the extent that Parent and the holder of a Company Stock Option otherwise agree in writing prior to the Effective Time): (i) each then outstanding option granted under any if such Company Stock PlanOption is vested before the Merger and exercisable and has an exercise price of less than $50, or granted other than pursuant and the holder of such Company Stock Option shall have elected by written notice to such Stock Plans Parent prior to the date 15 business days prior to the Effective Time to receive the payment contemplated by this clause (together, the “Options”i), whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive a payment from the Surviving Corporation an amount in cash in respect thereof (subject to any applicable withholding taxes) equal to the product of (i1) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option and (y2) each then outstanding restricted stock unit granted under the excess of $50 over the exercise price per share of Company Common Stock subject to such Company Stock Option, payable in cash immediately following the Effective Time; provided, however, that, at the request of any Stock Planperson subject to -------- ------- Section 16(a) of the Securities Exchange Act of 1934, whether or not then vestedas amended ("Exchange Act"), any such amount to be paid shall be paid as soon as practicable after the first date payment can be made without liability for such person under Section 16(b) of the Exchange Act; or (ii) with respect to any Company Stock Option not cancelled in exchange for pursuant to clause (i) above, be deemed to constitute an option to acquire, on the right to receive from same terms and conditions as were applicable under such Company Stock Option, the Surviving Corporation an amount in cash in respect thereof number of shares of Class B Stock equal to the product of (1) the number of shares of Company Common Stock Merger Consideration issuable upon exercise of such Option and (2) the Class B Exchange Ratio, provided that any fractional shares of Class B Stock resulting from such payments multiplication shall be rounded up or down to made the nearest whole share, at a price per share equal to (1) the exercise price for the shares of Company Common Stock otherwise purchasable pursuant to such Company Stock Option divided by (2) the Company through its customary payroll procedures and net of applicable withholding Taxes)Class B Exchange Ratio, provided that such exercise price shall be rounded up or down to the nearest cent.
(b) Adjust the terms of the Company's 1984 Restricted Stock Compensation Plan, as amended (the "Restricted Stock Plan"), which (or a plan substantially identical thereto) the Surviving Corporation shall adopt, to provide (i) that, at the Effective Time, the Merger Consideration into which each share of Company Common Stock subject at such time to the Restricted Stock Plan is converted shall thereafter be free of the requirement under the Restricted Stock Plan that such shares be held in escrow for the periods set forth therein, and (ii) that, after the Effective Time, no further grants of Company Common Stock or any other interest in the capital stock of the Company shall be made under the Restricted Stock Plan.
(c) Except as provided herein or as otherwise agreed to in writing by the parties, the Option Plans, the Restricted Stock Plan, the Company's Employee Stock Purchase Plan, as amended (ithe "Stock Purchase Plan") and the Company shall cause the Nonemployee Directors Stock Plans to terminate as of the Effective Time Plan, and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to subsidiary (collectively, the "Stock Plans") shall terminate and have no further force or effect as of the Effective Time Time, and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or a Company Stock Option nor any participant in any of the Stock Plans or anyone other than Parent shall hold or have any right thereunder to acquire any equity securities of the Company, Company or the Surviving Corporation or any Subsidiary thereofCorporation.
Appears in 1 contract
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the The Company shall take all actions necessary use reasonable efforts (without incurring any liability in connection therewith) to provide that, at the Effective Time, (xi) each then outstanding option to purchase shares of Company Common Stock (the "Options") granted under any Stock Planof the Company's stock option plans referred to in Section 4.2 hereof, or granted other than pursuant to such Stock Plans each as amended (togethercollectively, the “Options”"Option Plans"), whether or not then exercisable or vested, shall be cancelled and (ii) in exchange consideration of such cancellation, such holders of Options shall receive for the right each Share subject to receive from the Surviving Corporation such Option an amount (subject to any applicable withholding tax) in cash in respect thereof equal to the product of (iA) the excess, if any, of the Common Stock Merger Consideration Per Share Amount over the per share exercise price of such Option, multiplied by Option and (iiB) the number of shares of Company Common Stock Shares subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plansuch amount being herein referred to as, whether the "Option Price"); PROVIDED that the Company shall obtain all necessary consents or not then vestedreleases from holders of Options to effect the foregoing. Upon receipt of the Option Price, the Option shall be cancelled in exchange for cancelled. The surrender of an Option to the right to receive from Company shall be deemed a release of any and all rights the Surviving Corporation an amount in cash holder had or may have had in respect thereof equal to of such Option. As promptly as practicable following the Common Stock Merger Consideration (such payments to made by consummation of the Merger, the Purchaser shall provide the Company through with the funds necessary to satisfy its customary payroll procedures and net of applicable withholding Taxesobligations under this Section 2.12(a).
(b) Except as provided herein or as otherwise agreed to by the partiesparties and to the extent permitted by the Option Plans, (i) the Company shall cause the Stock Option Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing provide for the issuance or grant by the Company of any interest in respect payment of the capital stock of the Company or any of its Subsidiaries Option Price pursuant to terminate and have no further force or effect as of the Effective Time Section 2.12(a) hereof, and (ii) the Company shall take all action necessary to ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Option Plans or anyone other than Parent shall hold or have any right thereunder to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary subsidiary thereof.
(c) None of the parties to this Agreement shall take any action to deprive any employee or director of the Company of the benefits of (i) the consideration payable with respect to Options in accordance with Section 2.12(a) or (ii) the consideration that would have been payable with respect to any other equity-based compensation in accordance with the terms and conditions of the applicable Other Stock Plan, but for the amendment set forth in Section 2.12(b) above, such consideration to be determined by valuing any right to equity-based compensation by reference to the Common Per Share Amount. Without limiting the generality of the foregoing, if any of the transactions contemplated hereby would cause any individual subject to Section 16 of the Exchange Act to become subject to the profit recovery provisions thereof, to the extent permitted by applicable law neither the Surviving Corporation nor the Purchaser (nor any affiliate of the Purchaser) shall assert any claims against any such individual arising out of the foregoing or relating thereto, based directly or indirectly, on Section 16. ARTICLE III.
Appears in 1 contract
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock equity incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, (x) each then outstanding option granted under any Stock Plan, or granted other than pursuant to such Stock Plans (together, the “Options”), whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock PlanPlan (“Restricted Stock Units”), whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes).
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Plans or anyone other than Parent shall hold or have any right to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereof.
Appears in 1 contract
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior Without limiting the generality or effect of Section 2.6 or 2.7 and notwithstanding the provisions hereof applicable to the Effective TimeRights, the Company shall take all actions necessary will use its reasonable best efforts (which include satisfying the requirements of Rule 16b-3(e) promulgated under Section 16 of the Exchange Act, without incurring any liability in connection therewith) to provide that, at the Effective Time, (x) each then holder of a then-outstanding option granted to purchase Shares under any Stock Plan, or granted other than pursuant to such Stock Plans of the Company's stock option plans described in Section 3.3 (together, the “Options”"STOCK OPTION PLANS"), whether or not then exercisable or vested(the "OPTIONS"), shall will, in settlement thereof, receive from the Company for each Share subject to such Option an amount (subject to any applicable withholding tax) in cash equal to the difference between the Merger Consideration and the per Share exercise price of such Option to the extent such difference is a positive number (such amount being hereinafter referred to as, the "OPTION CONSIDERATION") and that all Options will be cancelled in exchange for terminated and thereafter represent only the right to receive from the Surviving Corporation an Option Consideration; PROVIDED, HOWEVER, that with respect to any Person subject to Section 16(a) of the Exchange Act, any such amount in cash will be paid as soon as practicable after the first date payment can be made without liability to such Person under Section 16(b) of the Exchange Act. Notwithstanding anything herein stated, no Option Consideration will be paid with respect to any Option unless, at or prior to the time of such payment, such Option is canceled and the holder of such Option has executed and delivered a release of any and all rights the holder had or may have had in respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied . The Company will cooperate with Parent in developing and taking any actions reasonably designed to minimize the exercise of Options by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect holders thereof equal prior to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes)Offer Completion Date.
(b) Without limiting the generality or effect of Sections 2.6 or 2.7 and notwithstanding the provisions hereof applicable to Rights, prior to the Effective Time, the Company will use its reasonable best efforts to obtain all necessary consents or releases from holders of Options under the Stock Option Plans and take all such other lawful action as may be necessary to give effect to the transactions contemplated by this Section 2.8. Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Option Plans to will terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any other interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect Subsidiary thereof will be canceled as of the Effective Time and (ii) the Company shall ensure use its best efforts to assure that following the Effective Time no holder of Options or other awards or any participant in the Stock Option Plans or anyone other than Parent plans, programs or arrangements shall hold or have any right thereunder to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereofthereof and to terminate all such plans and any Options or other Rights thereunder.
Appears in 1 contract
Samples: Merger Agreement (Tech Sym Corp)
Stock Plans. The Prior to the mailing of the Proxy Statement, the Board ----------- of Directors of the Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each Stock Plans (as amended (collectively, the “Stock Plans”defined below)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior Adjust the terms of all outstanding employee stock options to purchase shares of Company Common Stock ("Company Stock Options") granted under either the Effective TimeCompany's Restated 1982 Incentive Stock Option Plan or the Company's Stock Option Plan of 1993 (collectively, the Company shall take all actions necessary "Option Plans") to provide that, at the Effective Time, (x) each then Company Stock Option outstanding option granted under any Stock Plan, or granted other than pursuant immediately prior to such Stock Plans (together, the “Options”)Effective Time, whether or not then exercisable or vestedexercisable, shall be cancelled in exchange for and thereafter the right former holder thereof shall be entitled by having held such Company Stock Option only to receive a payment from the Surviving Corporation an amount in cash in respect thereof (subject to any applicable withholding taxes) equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the total number of shares of Company Common Stock subject to such Company Stock Option and (yii) each then outstanding restricted stock unit granted under the excess of $27.00 over the exercise price per share of Company Common Stock subject to such Company Stock Option, payable in cash immediately following the Effective Time; provided, however, that, at the request of any Stock Plan-------- ------- person subject to Section 16(a) of the Securities Exchange Act of 1934, whether or not then vestedas amended ("Exchange Act"), any such amount to be paid shall be cancelled in exchange paid as soon as practicable after the first date payment can be made without liability for such person under Section 16(b) of the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes)Exchange Act.
(b) Except as provided herein or as otherwise agreed to in writing by Parent, the partiesOption Plans, the Company's Employee Stock Purchase Plan, as amended (i) the Company shall cause the "Stock Plans to terminate as of the Effective Time Purchase Plan"), and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to subsidiary (collectively, the "Stock Plans") shall terminate and have no further force or effect as of the Effective Time Time, and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or a Company Stock Option nor any participant in any of the Stock Plans or anyone other than Parent shall hold or have any right thereunder to acquire any equity securities of the Company, Company or the Surviving Corporation or any Subsidiary thereofCorporation.
Appears in 1 contract
Stock Plans. The Prior to the mailing of the Proxy Statement, the Board of Directors of Parent and the Board of Directors of the Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each Stock Plans (as amended (collectively, the “Stock Plans”defined below)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior Adjust the terms of all outstanding employee and director stock options to purchase Shares ("COMPANY STOCK OPTIONS") granted under any of the Company's 1996 Stock Option Plan, 1997 Stock Plan or 1997 Director Option Plan (collectively, the "OPTION PLANS"), to provide that each Company Stock Option outstanding immediately prior to the Effective Time shall (except to the extent that Parent and the holder of a Company Stock Option otherwise agree in writing prior to the Effective Time, the Company shall take all actions necessary to provide that, ): (i) at the Effective Time, if such Company Stock Option is vested before the Merger and exercisable and has an exercise price of less than $7.00, and the holder of such Company Stock Option shall have elected by written notice to Parent prior to the date 15 business days prior to the Effective Time to receive the payment contemplated by this clause (x) each then outstanding option granted under any Stock Plan, or granted other than pursuant to such Stock Plans (together, the “Options”i), whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive a payment from the Surviving Corporation an amount in cash in respect thereof (subject to any applicable withholding taxes) equal to the product of (1) the total number of Shares subject to such Company Stock Option and (2) the excess of $7.00 over the exercise price per Share subject to such Company Stock Option, payable in cash immediately following the Effective Time; provided, however, that at the request of any person subject to Section 16(a) of the Securities Exchange Act of 1934, as amended ("EXCHANGE ACT"), any such amount to be paid shall be paid as soon as practicable after the first date payment can be made without liability for such person under Section 16(b) of the Exchange Act; or (ii) immediately prior to the Effective Time, with respect to any Company Stock Option not to be cancelled pursuant to clause (i) above, be assumed by the excessParent (on the then existing terms other than as provided herein) if permissible under applicable law and stock exchange rules, or, if anysuch option assumption is not permitted under applicable law or stock exchange rules, Parent shall issue an option to acquire (on substantially the same terms and conditions as were applicable under such Company Stock Option), the number of Subordinate Shares equal to the Common Stock Merger Consideration over the per share exercise price product of such Option, multiplied by (ii1) the number of shares Shares issuable upon exercise of Company Common Stock subject to such Option and (2) the Subordinate Shares Ratio, provided that any fractional Subordinate Shares resulting from such multiplication shall be rounded up or down to the nearest whole share, and (x) with respect to any Company Stock Option that has an exercise price of less than $7.00, at a price per share equal to (A) the exercise price for Shares otherwise purchasable pursuant to such Company Stock Option divided by (B) the Subordinate Shares Ratio, provided that such exercise price shall be rounded up or down to the nearest cent; and (y) each then outstanding restricted stock unit granted under any with respect to all other Company Stock PlanOptions, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof at a price per share equal to $17.50, provided, that if the Common Toronto Stock Merger Consideration (such payments to made by Exchange or the Company through its customary payroll procedures and net of applicable withholding Taxes).
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Montreal Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for Exchange prohibits the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries such options at a price per share equal to terminate and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Plans or anyone other than Parent shall hold or have any right to acquire any equity securities of the Company$17.50, the Surviving Corporation or any Subsidiary thereof.then
Appears in 1 contract
Samples: Merger Agreement (Onex Corp)
Stock Plans. The Company Board (ora) At the Effective Time, if appropriate, any committee thereof administering any of Parent shall assume the Company’s stock option rights and stock incentive plans listed in Section 3.2 obligations of the Company Disclosure Schedulewith respect to the 2000 Plan as well as the duties of the Company with respect to the administration of such plan.
(b) At the Effective Time, each as amended Company Stock Option (collectivelyother than phantom units of Company Common Stock) that has an exercise price equal to or less than $26.93 (the "Merger Consideration Value"), the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior and is outstanding immediately prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, (x) each then outstanding option granted under any Stock Plan, or granted other than pursuant to such Stock Plans (together, the “Options”), whether or not then vested or exercisable or vested(each, an "Assumed Option"), shall be cancelled in exchange for the right fully vested and immediately exercisable and assumed by Parent. In accordance with its terms, each Assumed Option shall be converted into an option to receive from the Surviving Corporation an amount in cash in respect thereof acquire that number of shares of Parent Common Stock equal to the sum of (x) the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Assumed Option immediately prior to the Effective Time and the Exchange Ratio and (y) the quotient of the Cash Merger Consideration divided by the Parent Closing Price (which sum shall be rounded down to the nearest whole share), at a price per share equal to the aggregate exercise price of Company Common Stock subject to such Assumed Option divided by the number of shares determined under (x) and (y) above (which price per share shall be rounded up to the nearest whole cent). The Assumed Option shall otherwise be subject to the same terms and conditions as were applicable under the respective Company Stock Option immediately prior to the Effective Time. It is the intention of the parties that each then Assumed Option that qualified as an incentive stock option (as defined in Section 422 of the Code) shall continue to so qualify, to the maximum extent permissible, following the Effective Time.
(c) Prior to the Closing Date, (i) each Company Stock Option that has an exercise price in excess of the Merger Consideration Value and is outstanding restricted stock unit granted under any Stock Planon the date hereof, whether or not then vestedvested or exercisable (each, a "Cancelled Option"), shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures fully vested and net of applicable withholding Taxes).
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and immediately exercisable; (ii) the Company shall ensure notify the holders of each such Cancelled Option that if such options are not exercised within the period ending fifteen (15) days (thirty (30) days in the case of Company Stock Options granted under the 1995 Director Plan) from the date of such notice, such Cancelled Option shall expire as of the last day of such period and be of no further force or effect.
(d) At the Effective Time, each Phantom Unit Account that contains phantom units of Company Common Stock ("Phantom Units") immediately prior to the Effective Time, whether or not then vested (each, an "Assumed Phantom Unit Account"), shall be fully vested and assumed by Parent. Each Assumed Phantom Unit Account shall be converted into a deferral account under the 1995 Director Plan with respect to the phantom units of Parent Common Stock equal to the sum of (i) the product of the number of Phantom Units in such Assumed Phantom Unit Account immediately prior to the Effective Time and the Exchange Ratio and (ii) the quotient of the Cash Merger Consideration divided by the Parent Closing Price (which sum shall be rounded down to the nearest whole share). The Assumed Phantom Unit Account and phantom units of Parent Common Stock held therein shall otherwise be subject to the same terms and conditions as were applicable to such Phantom Unit Account immediately prior to the Effective Time.
(e) If and to the extent necessary or required by the terms of any Company Stock Plan or any Company Stock Option, the Company shall, prior to the Effective Time, amend the terms of its equity incentive plans or arrangements, to give effect to the provisions of Sections 6.10(b) and 6.10(c).
(f) As soon as practicable following the Effective Time no holder Time, but in any event within five (5) business days thereafter (to the extent Parent has received the most recent copies of Options or other awards or any participant in the relevant Company Stock Plans or anyone other than Plans), Parent shall hold or have any right prepare and file with the SEC a registration statement on Form S-8 covering the shares of Parent Common Stock issuable pursuant to acquire any equity securities the outstanding Assumed Options and Assumed Phantom Unit Accounts, Parent shall cause the same to become effective, and Parent shall take such further actions as may be reasonably necessary to cover under such registration statement shares of Parent Common Stock held by those persons eligible immediately prior to the Company, Closing Date pursuant to the Surviving Corporation or any Subsidiary thereof1995 Director Plan.
Appears in 1 contract
Stock Plans. The Company Board (ora) At the Effective Time, if appropriate, any committee thereof administering any of Parent shall assume the Company’s stock option rights and stock incentive plans listed in Section 3.2 obligations of the Company Disclosure Schedulewith respect to the 2000 Plan as well as the duties of the Company with respect to the administration of such plan.
(b) At the Effective Time, each as amended Company Stock Option (collectivelyother than phantom units of Company Common Stock) that has an exercise price equal to or less than $26.93 (the "Merger Consideration Value"), the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior and is outstanding immediately prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, (x) each then outstanding option granted under any Stock Plan, or granted other than pursuant to such Stock Plans (together, the “Options”), whether or not then vested or exercisable or vested(each, an "Assumed Option"), shall be cancelled in exchange for the right fully vested and immediately exercisable and assumed by Parent. In accordance with its terms, each Assumed Option shall be converted into an option to receive from the Surviving Corporation an amount in cash in respect thereof acquire that number of shares of Parent Common Stock equal to the sum of (x) the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Assumed Option immediately prior to the Effective Time and the Exchange Ratio and (y) the quotient of the Cash Merger Consideration divided by the Parent Closing Price (which sum shall be rounded down to the nearest whole share), at a price per share equal to the aggregate exercise price of Company Common Stock subject to such Assumed Option divided by the number of shares determined under (x) and (y) above (which price per share shall be rounded up to the nearest whole cent). The Assumed Option shall otherwise be subject to the same terms and conditions as were applicable under the respective Company Stock Option immediately prior to the Effective Time. It is the intention of the parties that each then Assumed Option that qualified as an incentive stock option (as defined in Section 422 of the Code) shall continue to so qualify, to the maximum extent permissible, following the Effective Time.
(c) Prior to the Closing Date, (i) each Company Stock Option that has an exercise price in excess of the Merger Consideration Value and is outstanding restricted stock unit granted under any Stock Planon the date hereof, whether or not then vestedvested or exercisable (each, a "Cancelled Option"), shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures fully vested and net of applicable withholding Taxes).
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and immediately exercisable; (ii) the Company shall ensure notify the holders of each such Cancelled Option that if such options are not exercised within the period ending fifteen (15) days (thirty (30) days in the case of Company Stock Options granted under the 1995 Director Plan) from the date of such notice, such Cancelled Option shall expire as of the last day of such period and be of no further force or effect.
(d) At the Effective Time, each Phantom Unit Account that contains phantom units of Company Common Stock ("Phantom Units") immediately prior to the Effective Time, whether or not then vested (each, an "Assumed Phantom Unit Account"), shall be fully vested and assumed by Parent. Each Assumed Phantom Unit Account shall be converted into a deferral account under the 1995 Director Plan with respect to the phantom units of Parent Common Stock equal to the sum of (i) the product of the number of Phantom Units in such Assumed Phantom Unit Account immediately prior to the Effective Time and the Exchange Ratio and (ii) the quotient of the Cash Merger Consideration divided by the Parent Closing Price (which sum shall be rounded down to the nearest whole share). The Assumed Phantom Unit Account and phantom units of Parent Common Stock held therein shall otherwise be subject to the same terms and conditions as were applicable to such Phantom Unit Account immediately prior to the Effective Time.
(e) If and to the extent necessary or required by the terms of any Company Stock Plan or any Company Stock Option, the Company shall, prior to the Effective Time, amend the terms of its equity incentive plans or arrangements, to give effect to the provisions of Sections 6.10(b) and 6.10(c).
(f) As soon as practicable following the Effective Time no holder Time, but in any event within five (5) business days thereafter (to the extent Parent has received the most recent copies of Options or other awards or any participant in the relevant Company Stock Plans or anyone other than Plans), Parent shall hold or have any right prepare and file with the SEC a registration statement on Form S-8 covering the shares of Parent Common Stock issuable pursuant to acquire any equity securities the outstanding Assumed Options and Assumed Phantom Unit Accounts, Parent shall cause the same to become effective, and Parent shall take such further EXECUTION COPY actions as may be reasonably necessary to cover under such registration statement shares of Parent Common Stock held by those persons eligible immediately prior to the Company, Closing Date pursuant to the Surviving Corporation or any Subsidiary thereof1995 Director Plan.
Appears in 1 contract
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, (x) each then outstanding option to purchase shares of Company Common Stock (the “Options”) granted under any Stock Planof the Company’s stock option plans listed in Section 3.9 of the Company Disclosure Letter, each as amended (collectively, the “Option Plans”), or granted other than pursuant to such Stock Plans (together, the “Options”)Option Plans, whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive receive, promptly following the Effective Time, from Parent, Merger Sub and the Surviving Corporation an amount in cash in respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments payment to made by the Company through its customary payroll procedures and be net of applicable withholding Taxes, if any).
(b) Except as provided herein or as otherwise agreed to by the partiesparties and to the extent permitted by the Option Plans, (i) the Company shall cause the Stock Option Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Option Plans or anyone other than Parent shall hold or have any right to acquire any equity securities of the CompanyCompany or the Surviving Corporation.
(c) Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, all shares of Company Common Stock subject to vesting and transfer or other restrictions (the “Restricted Stock”) in accordance with the terms of the applicable Restricted Stock award agreement, shall become fully vested and all restrictions on such shares shall lapse. Pursuant to Section 1.6(a), such shares shall be cancelled, retired and shall cease to exist, and shall be converted into the right to receive from the Surviving Corporation or any Subsidiary thereofthe Merger Consideration.
Appears in 1 contract
Samples: Merger Agreement (Ablest Inc)
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the The Company shall take all actions necessary to provide that, at the Effective Time, (xi) each then outstanding option to purchase shares of Company Common Stock (a "Company Option"), whether granted under any of the Company's stock option plans referred to in Section 3.14, each as amended (collectively, the "Stock PlanPlans"), or granted other than pursuant to such Stock Plans (togetherotherwise, the “Options”), and whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive from canceled and (ii) the Surviving Corporation Entity shall pay to such holders of Company Options an amount in cash in with respect thereof to each such Company Option equal to the product of obtained by multiplying (iA) the excessamount, if any, of by which the Common Stock Merger Consideration over exceeds the per share exercise price of relating to such Company Option, multiplied by (iiB) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration thereto (such payments payment to made by the Company through its customary payroll procedures and be net of applicable withholding Taxestaxes). The aggregate amount to be paid pursuant to clause (ii) with respect to all Company Options (assuming that the Merger Consideration is $12.50) is $1,132,774. Prior to the Effective Time and contingent upon the consummation of the Merger, the Company shall notify each holder of a Company Option that (i) all outstanding Company Options that have not become fully vested prior to the Effective Time shall become fully vested immediately prior to the Effective Time and (ii) each such holder may exercise his or her Company Options prior to the Effective Time or such Company Options shall be canceled and cashed out in the manner set forth in clause (ii) above.
(b) The Company shall take all actions necessary to provide that, at the Effective Time, (i) each then outstanding right that entitles the recipient to receive credits based on a cash distribution that would have been paid on Company Common Stock specified in such right, or other award to which it relates (a "Distribution Equivalent Right"), whether granted under any of the Company's Stock Plans or otherwise, shall be canceled and (ii) the Surviving Entity shall pay to the holders of Distribution Equivalent Rights an amount in cash equal to their accrued and unpaid distribution equivalents as of the Effective Time (such payment to be net of applicable withholding taxes). The Company represents and warrants that the total amount of shares of Company Common Stock specified in the Distribution Equivalent Rights is 74,000 and, as of November 30, 2003, the total unpaid and unreinvested distribution equivalents credited to the holders of Distribution Equivalent Rights shall be $22,147.
(c) Prior to the Effective Time, the Company shall cause any restrictions imposed pursuant to any stock plan on any outstanding shares of Company Common Stock (such shares, "Company Restricted Shares") to lapse and each Company Restricted Share shall be subject to the same terms and conditions of this Agreement as other shares of Company Common Stock, including, but not limited to, Section 2.1(c) herein.
(d) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement arrangement, providing for the issuance or grant by the Company of any interest in respect of the capital stock shares of beneficial interest of the Company or any of its Subsidiaries to terminate shall be terminated and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Company Options or other awards or any participant in the Stock Plans or anyone other than Parent otherwise shall hold or have any right to acquire any equity securities or other interest in respect of the capital stock of the Company, the Surviving Corporation Entity or any Company Subsidiary thereof(as defined herein).
Appears in 1 contract
Samples: Merger Agreement (Eldertrust)
Stock Plans. The Company Prior to the Effective Time, the Board of Directors (or, if appropriate, the Stock Option Committee thereof) of Company shall adopt appropriate resolutions and take all other actions necessary to cause each holder of an issued and outstanding option or similar right to purchase Common Stock, whether or not then vested or exercisable (an “Option”) pursuant to any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 or similar plans, agreements or arrangements of the Company Disclosure Schedule, each as amended including any related award agreements (collectively, the “Stock Plans”)) shall adopt , to enter into an Option Cancellation Agreement, in substantially the form attached hereto as Exhibit A (an “Option Cancellation Agreement”), pursuant to which such resolutions holder will agree to cancellation of his or take her Options immediately prior to the Effective Time in exchange for the consideration provided therein, net of such other actions amounts as may be required to effect the following:
(a) Prior be deducted and withheld with respect to the Effective Timemaking of such payment under the Code or any provision of state, local or foreign tax law. To the extent that any amounts are so deducted and withheld, those amounts shall be treated as having been paid to the holder of that Option for all purposes under this Agreement. Company shall take all actions necessary action to provide that, at the Effective Time, (x) each then outstanding option granted under any Stock Plan, or granted other than pursuant to such ensure that all Stock Plans (together, the “Options”), whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes).
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any other interest in respect of the capital stock of the Company or any of its Subsidiaries to Subsidiary, shall automatically terminate and have no further force or effect as of the Effective Time Time, and (ii) that any holder of issued and outstanding awards thereunder will have no rights other than the Company shall ensure that following right to receive the payment in cancellation and settlement thereof as provided in the Option Cancellation Agreements. Prior to the Effective Time no holder Time, the Board of Options Directors, or other awards or any participant in the Stock Plans or anyone other than Parent Option Committee thereof, shall hold or have any right to acquire any equity securities adopt a resolution consistent with the interpretive guidance of the Company, SEC to approve the Surviving Corporation disposition by any officer or any Subsidiary thereofdirector of Company who is a covered person of Company for purposes of Section 16 under the Exchange Act of Shares or Options pursuant to this Agreement and the Merger for purposes of qualifying the disposition as an exempt transaction under Section 16 under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Fresh Brands Inc)
Stock Plans. The (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Option Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(ai) no later than ten (10) days prior to the Effective Time, each then outstanding option to purchase shares of Company Common Stock (the “Options”) shall become vested and exercisable with respect to all of the shares of Company Common Stock subject thereto;
(ii) adjust the terms of each share of Company Common Stock subject to vesting and transfer or other restrictions (“Restricted Stock”) as necessary to provide that, in accordance with the terms of the applicable Restricted Stock award agreement, at the Effective Time, such shares shall become fully vested and all restrictions on such shares shall lapse and pursuant to Section 1.6(a), such shares shall be canceled, retired and shall cease to exist, and shall be converted into the right to receive from the Surviving Corporation the Merger Consideration (it being understood that restricted stock awards set forth on Schedule 1.8 which in accordance with their original terms are to be granted only upon achievement of specified performance-based goals that have not been achieved prior to the Effective Time shall not be granted in connection with the Merger nor shall they vest or be converted into the right to receive the Merger Consideration; provided, however, that any such shares that, by their original terms are granted upon a change of control shall be granted and shall vest and be converted at the Effective Time into the right to receive the Merger Consideration); and
(iii) make such other changes to the Option Plans as Parent and the Company may agree are appropriate to give effect to the Merger.
(b) Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, (x) each then outstanding option Option granted under any Stock Option Plan, or granted other than pursuant to such Stock Plans (together, the “Options”)Option Plans, whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive from Merger Sub or the Surviving Corporation an amount in cash in respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments payment to made by the Company through its customary payroll procedures and net of applicable withholding Taxes).
(bc) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Option Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Option Plans or anyone other than Parent shall hold or have any right to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereof.
Appears in 1 contract
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior Without limiting the generality or effect of Sections 2.6 or 2.8 and notwithstanding the provisions hereof applicable to the Effective TimeRights, the Company shall take all actions necessary will use its reasonable best efforts (which include satisfying the requirements of Rule 16b-3(e) promulgated under Section 16 of the Exchange Act, without incurring any liability in connection therewith) to provide that, at the Effective Time, (x) each then holder of a then-outstanding option granted to purchase Shares under any Stock Plan, the Company's stock option plans set forth or granted other than pursuant required to such Stock Plans be set forth in Section 2.9 of the Company Disclosure Letter (togethercollectively, the “Options”"Stock Option Plans") (true and correct copies of which have been delivered or made available by Company to Parent), whether or not then exercisable or vested(the "Options"), shall be cancelled will, in exchange for the right to settlement thereof, receive from the Surviving Corporation Company for each Share subject to such Option an amount (subject to any applicable withholding tax) in cash in respect thereof equal to the product of (i) difference between the excess, if any, of the Common Stock Merger Consideration over and the per share Share exercise price of such OptionOption to the extent such difference is a positive number (such amount being hereinafter referred to as, multiplied by (ii) the number "Option Consideration"). Notwithstanding anything herein stated, no Option Consideration will be paid with respect to any Option unless, at or prior to the time of shares of Company Common Stock subject to such payment, such Option is canceled and (y) each then outstanding restricted stock unit granted under the holder of such Option has executed and delivered a release of any Stock Plan, whether and all rights the holder had or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash may have had in respect thereof equal to the Common Stock Merger Consideration (of such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes)Option.
(b) Without limiting the generality or effect of Sections 2.6 or 2.8 and notwithstanding the provisions hereof applicable to the Rights, prior to the Effective Time, Company will use its reasonable best efforts to obtain all necessary consents or releases from holders of Options under the Stock Option Plans and take all such other lawful action as may be necessary to give effect to the transactions contemplated by this Section 2.9. Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Option Plans to will terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any other interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect Subsidiary thereof, including the Directors' Retainer Stock Deferral Plan, will be canceled as of the Effective Time and (ii) the Company shall ensure will use its reasonable best efforts to assure that following the Effective Time no holder of Options or other awards or any participant in the Stock Option Plans or anyone such other than Parent shall hold plans, programs or arrangements will have any right thereunder to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereofthereof and to terminate all such plans and any Options or other Rights thereunder. Notwithstanding the foregoing, as requested by Parent, the Company will use its reasonable best efforts to assure that following the date of this Agreement, no participant in the 1994 Employee Stock Purchase Plan will have any right to change any election or increase his contribution thereunder, and the Company will take all such actions as may be available to it to cause such plan to be suspended in respect of equity securities of the Company or the Surviving Corporation(other than as to Shares payment for which was deducted from employees' payroll at or prior to the date hereof).
Appears in 1 contract
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior Without limiting the generality or effect of Section 2.6 or 2.7 and notwithstanding the provisions hereof applicable to the Effective TimeRights, the Company shall take all actions necessary will use its reasonable best efforts (which include satisfying the requirements of Rule 16b-3(e) promulgated under Section 16 of the Exchange Act, without incurring any liability in connection therewith) to provide that, at the Effective Time, (x) each then holder of a then-outstanding option granted to purchase Shares under any of the Company's stock option plans described in Section 3.3 (the "Stock Plan, or granted other than pursuant to such Stock Plans (together, the “Options”Option Plans"), whether or not then exercisable or vested(the "Options"), shall will, in settlement thereof, receive from the Company for each Share subject to such Option an amount (subject to any applicable withholding tax) in cash equal to the difference between the Merger Consideration and the per Share exercise price of such Option to the extent such difference is a positive number (such amount being hereinafter referred to as, the "Option Consideration") and that all Options will be cancelled in exchange for terminated and thereafter represent only the right to receive from the Surviving Corporation an Option Consideration; provided, however, that with respect to any Person subject to Section 16(a) of the Exchange Act, any such amount in cash will be paid as soon as practicable after the first date payment can be made without liability to such Person under Section 16(b) of the Exchange Act. Notwithstanding anything herein stated, no Option Consideration will be paid with respect to any Option unless, at or prior to the time of such payment, such Option is canceled and the holder of such Option has executed and delivered a release of any and all rights the holder had or may have had in respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied . The Company will cooperate with Parent in developing and taking any actions reasonably designed to minimize the exercise of Options by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect holders thereof equal prior to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes)Offer Completion Date.
(b) Without limiting the generality or effect of Sections 2.6 or 2.7 and notwithstanding the provisions hereof applicable to Rights, prior to the Effective Time, the Company will use its reasonable best efforts to obtain all necessary consents or releases from holders of Options under the Stock Option Plans and take all such other lawful action as may be necessary to give effect to the transactions contemplated by this Section 2.8. Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Option Plans to will terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any other interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect Subsidiary thereof will be canceled as of the Effective Time and (ii) the Company shall ensure use its best efforts to assure that following the Effective Time no holder of Options or other awards or any participant in the Stock Option Plans or anyone other than Parent plans, programs or arrangements shall hold or have any right thereunder to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereofthereof and to terminate all such plans and any Options or other Rights thereunder.
Appears in 1 contract
Stock Plans. The Company Prior to the Effective Time, the Board of Directors shall adopt appropriate resolutions and take all other actions necessary and appropriate to provide that, immediately prior to the Effective Time, each then outstanding option to purchase Shares (or, if appropriate, an "OPTION") granted under any committee thereof administering any stock option plans or agreements of the Company’s stock option and stock incentive plans listed in Company (all of which are set forth on Section 3.2 of the Company Disclosure ScheduleLetter, each as amended (collectively, the “Stock Plans”"STOCK PLANS")) shall adopt such resolutions , will be exercisable in full and, to the extent not so exercised or validly canceled, be forfeited as of the Effective Time. The Board of Directors may take such other actions action as may be required necessary or desirable to effect permit any holder of an Option to, in lieu of exercise, elect to have the following:
Option canceled (aa "CANCELED OPTION") at the Effective Time and to receive, in exchange and full settlement therefor and in consideration of the cancellation of such Option, (i) a payment in cash (subject to any applicable withholding tax) equal to the product of (x) the excess, if any, of the Cash Consideration over the per Share exercise price of such Option, and (y) the number of Shares subject to such Option and (ii) only if cash is paid pursuant to clause (i) above, one CVR for each Share subject to such Option (together, the "OPTION CONSIDERATION"). Any such election to receive the Option Consideration will be conditioned upon the Option holder providing to the Company prior to the Effective Time a consent to cancellation and release in such form as is approved by Parent. From and after the Effective Time, such Canceled Options shall no longer be exercisable by the former holder thereof, but shall only entitle such holder to the delivery of the Option Consideration. At, or as soon as practicable after, the Effective Time, Parent shall or shall cause the Surviving Corporation to provide each holder of a Canceled Option which is validly canceled pursuant to this Section 2.4 with a lump-sum cash payment equal to the Cash Consideration payable to such holder hereunder. The holders of Options which are "out of the money" (I.E., having a per Share exercise price equal to or in excess of the Cash Consideration) shall not receive any consideration with respect to the forfeiture of such Options as of the Effective Time. Prior to the Effective Time, the Company shall take all actions necessary use its reasonable best efforts to provide that, at the Effective Time, (x) each then outstanding option granted under any Stock Plan, or granted other than pursuant to such Stock Plans (together, the “Options”), whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in ensure that holders of Options that are neither exercised nor canceled will have no rights with respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes)Options.
(b) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Plans or anyone other than Parent shall hold or have any right to acquire any equity securities of the Company, the Surviving Corporation or any Subsidiary thereof.
Appears in 1 contract
Samples: Merger Agreement (Miltope Group Inc)
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, (x) each then outstanding option to purchase shares of Company Common Stock (the "Options") granted under any Stock Planof the Company's stock option or incentive plans listed in Section 3.2 of the Company Disclosure Letter, each as amended (collectively, the "Incentive Plans"), or granted other than pursuant to such Stock Plans (together, the “Options”)Incentive Plans, whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive receive, within ten (10) business days following the Effective Time, from the Surviving Corporation Corporation, an amount in cash in respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments payment to made by the Company through its customary payroll procedures and be net of applicable withholding Taxes, if any).
(b) Except as provided herein or as otherwise agreed to by the partiesparties and to the extent permitted by the Incentive Plans, (i) the Company shall cause the Stock Incentive Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Incentive Plans or anyone other than Parent shall hold or have any right to acquire any equity securities of the CompanyCompany or the Surviving Corporation.
(c) Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, all shares of Company Common Stock subject to vesting and transfer or other restrictions ("Restricted Stock") shall become fully vested and all restrictions on such shares shall lapse. Pursuant to Section 1.6(a), such shares shall be cancelled, retired and shall cease to exist, and shall be converted into the right to receive from the Surviving Corporation the Merger Consideration.
(d) Prior to the Effective Time, each outstanding right to receive Company Common Stock pursuant to a restricted stock unit, stock unit award or stock appreciation right granted under any Subsidiary thereofIncentive Plans that is subject to restrictions (whether performance-based, time-based, or otherwise) (each, a "Restricted Stock Unit Award") shall terminate and be of no further value unless all applicable performance or vesting criteria with respect to such Restricted Stock Unit has been satisfied prior to the Effective Time. As of the Effective Time, each such Restricted Stock Unit Award which has not lapsed immediately prior to the Effective Time and for which all applicable performance or vesting criteria has been satisfied, shall be settled in shares of Company Common Stock in accordance with the terms of such Restricted Stock Unit Award.
Appears in 1 contract
Samples: Merger Agreement (Sorensen Trust)
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the The Company shall take all actions necessary to provide that, at the Effective Time, (xi) each then outstanding option to purchase shares of Company Common Stock (a “Company Option”), whether granted under any Stock Planof the Company’s stock option plans referred to in Section 3.14, or granted other than pursuant to such Stock Plans each as amended (togethercollectively, the “OptionsStock Plans”), or otherwise, and whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive from canceled and (ii) the Surviving Corporation Entity shall pay to such holders of Company Options an amount in cash in with respect thereof to each such Company Option equal to the product of obtained by multiplying (iA) the excessamount, if any, of by which the Common Stock Merger Consideration over exceeds the per share exercise price of relating to such Company Option, multiplied by (iiB) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration thereto (such payments payment to made by the Company through its customary payroll procedures and be net of applicable withholding Taxestaxes). The aggregate amount to be paid pursuant to clause (ii) with respect to all Company Options (assuming that the Merger Consideration is $12.50) is $1,132,774. Prior to the Effective Time and contingent upon the consummation of the Merger, the Company shall notify each holder of a Company Option that (i) all outstanding Company Options that have not become fully vested prior to the Effective Time shall become fully vested immediately prior to the Effective Time and (ii) each such holder may exercise his or her Company Options prior to the Effective Time or such Company Options shall be canceled and cashed out in the manner set forth in clause (ii) above.
(b) The Company shall take all actions necessary to provide that, at the Effective Time, (i) each then outstanding right that entitles the recipient to receive credits based on a cash distribution that would have been paid on Company Common Stock specified in such right, or other award to which it relates (a “Distribution Equivalent Right”), whether granted under any of the Company’s Stock Plans or otherwise, shall be canceled and (ii) the Surviving Entity shall pay to the holders of Distribution Equivalent Rights an amount in cash equal to their accrued and unpaid distribution equivalents as of the Effective Time (such payment to be net of applicable withholding taxes). The Company represents and warrants that the total amount of shares of Company Common Stock specified in the Distribution Equivalent Rights is 74,000 and, as of November 30, 2003, the total unpaid and unreinvested distribution equivalents credited to the holders of Distribution Equivalent Rights shall be $22,147.
(c) Prior to the Effective Time, the Company shall cause any restrictions imposed pursuant to any stock plan on any outstanding shares of Company Common Stock (such shares, “Company Restricted Shares”) to lapse and each Company Restricted Share shall be subject to the same terms and conditions of this Agreement as other shares of Company Common Stock, including, but not limited to, Section 2.1(c) herein.
(d) Except as provided herein or as otherwise agreed to by the parties, (i) the Company shall cause the Stock Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement arrangement, providing for the issuance or grant by the Company of any interest in respect of the capital stock shares of beneficial interest of the Company or any of its Subsidiaries to terminate shall be terminated and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Company Options or other awards or any participant in the Stock Plans or anyone other than Parent otherwise shall hold or have any right to acquire any equity securities or other interest in respect of the capital stock of the Company, the Surviving Corporation Entity or any Company Subsidiary thereof(as defined herein).
Appears in 1 contract
Samples: Merger Agreement (Ventas Inc)
Stock Plans. The (a) As soon as practicable following the date of this Agreement, the Board of Directors of the Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) , shall adopt such resolutions or take such other actions as may be are required to effect adjust the following:
terms of all outstanding stock options to purchase shares of Common Stock (a"Stock Options") Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, (x) each then outstanding option heretofore granted under any stock option, program or arrangement of the Company (collectively, the "Stock Plan, or granted other than Plans") to provide that each Stock Option outstanding immediately prior to the acceptance for payment of shares of Common Stock pursuant to such Stock Plans (together, the “Options”)Offer, whether or not then exercisable or vested, shall be cancelled canceled in exchange for a cash payment by Sub within five business days of the right day shares of Common Stock are purchased pursuant to receive from the Surviving Corporation Offer, an amount in cash in respect thereof equal to the product of (i) the excess, if any, of (x) the price per share of Common Stock Merger Consideration to be paid pursuant to the Offer over (y) the exercise price per share exercise price of Common Stock subject to such Stock Option, multiplied by (ii) the number of shares of Company Common Stock subject to for which such Stock Option and may then be exercised (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments to made by the Company through its customary payroll procedures and net of applicable withholding Taxes"Option Consideration").
(b) Except as provided herein or as otherwise agreed All amounts payable pursuant to by the parties, (i) the this Section 6.04 shall be subject to any required withholding of taxes and shall be paid without interest. The Company shall cause use its best efforts to obtain all consents of the holders of the Stock Options as shall be necessary to effectuate the foregoing. Notwithstanding anything to the contrary contained in this Agreement, payment shall, at Parent's request, be withheld in respect of any Stock Option with respect to any holder until all necessary consents with respect to such holder are obtained.
(c) The Stock Plans to shall terminate as of the Effective Time of the Merger, and cause the provisions in any other planemployee benefit, program stock or arrangement other plan of the Company providing for the issuance issuance, transfer or grant by of any capital stock of the Company of Company, any interest in respect of any capital stock of the Company, or any amounts derived from the value of any capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect shall be deleted as of the Effective Time of the Merger, and (ii) the Company shall ensure that following the Effective Time of the Merger no holder of Options or other awards a Stock Option or any participant in the any Stock Plans Plan or anyone other than Parent Company Plan shall hold or have any right thereunder to acquire any equity securities capital stock of the Company, Company or the Surviving Corporation or any Subsidiary thereofCorporation.
Appears in 1 contract
Stock Plans. The Company Board (or, if appropriate, any committee thereof administering any of the Company’s stock option and stock incentive plans listed in Section 3.2 of the Company Disclosure Schedule, each as amended (collectively, the “Stock Plans”)) shall adopt such resolutions or take such other actions as may be required to effect the following:
(a) Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, (x) each then outstanding option to purchase shares of Company Common Stock (the “Options”) granted under any Stock Planof the Company’s stock option or incentive plans listed in Section 3.2 of the Company Disclosure Letter, each as amended (collectively, the “Incentive Plans”), or granted other than pursuant to such Stock Plans (together, the “Options”)Incentive Plans, whether or not then exercisable or vested, shall be cancelled in exchange for the right to receive receive, within ten (10) business days following the Effective Time, from the Surviving Corporation Corporation, an amount in cash in respect thereof equal to the product of (i) the excess, if any, of the Common Stock Merger Consideration over the per share exercise price of such Option, multiplied by (ii) the number of shares of Company Common Stock subject to such Option and (y) each then outstanding restricted stock unit granted under any Stock Plan, whether or not then vested, shall be cancelled in exchange for the right to receive from the Surviving Corporation an amount in cash in respect thereof equal to the Common Stock Merger Consideration (such payments payment to made by the Company through its customary payroll procedures and be net of applicable withholding Taxes, if any).
(b) Except as provided herein or as otherwise agreed to by the partiesparties and to the extent permitted by the Incentive Plans, (i) the Company shall cause the Stock Incentive Plans to terminate as of the Effective Time and cause the provisions in any other plan, program or arrangement providing for the issuance or grant by the Company of any interest in respect of the capital stock of the Company or any of its Subsidiaries to terminate and have no further force or effect as of the Effective Time and (ii) the Company shall ensure that following the Effective Time no holder of Options or other awards or any participant in the Stock Incentive Plans or anyone other than Parent shall hold or have any right to acquire any equity securities of the CompanyCompany or the Surviving Corporation.
(c) Prior to the Effective Time, the Company shall take all actions necessary to provide that, at the Effective Time, all shares of Company Common Stock subject to vesting and transfer or other restrictions (“Restricted Stock”) shall become fully vested and all restrictions on such shares shall lapse. Pursuant to Section 1.6(a), such shares shall be cancelled, retired and shall cease to exist, and shall be converted into the right to receive from the Surviving Corporation the Merger Consideration.
(d) Prior to the Effective Time, each outstanding right to receive Company Common Stock pursuant to a restricted stock unit, stock unit award or stock appreciation right granted under any Subsidiary thereofIncentive Plans that is subject to restrictions (whether performance-based, time-based, or otherwise) (each, a “Restricted Stock Unit Award”) shall terminate and be of no further value unless all applicable performance or vesting criteria with respect to such Restricted Stock Unit has been satisfied prior to the Effective Time. As of the Effective Time, each such Restricted Stock Unit Award which has not lapsed immediately prior to the Effective Time and for which all applicable performance or vesting criteria has been satisfied, shall be settled in shares of Company Common Stock in accordance with the terms of such Restricted Stock Unit Award.
Appears in 1 contract
Samples: Merger Agreement (Westaff Inc)
