The Option; Exercise; Adjustments. (a) The Stockholder hereby grants to Parent an irrevocable option (the "Option") to purchase from time to time the Subject Shares, upon the terms and subject to the conditions set forth herein (the "Optioned Shares"). The Option may be exercised by Parent in whole or from time to time in part, at any time following the occurrence of a Triggering Event (as defined below) and prior to the termination of the Option in accordance with Section 9. In the event Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one business day from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned Shares. In the event of any change in the number of issued and outstanding shares of Subject Shares by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted. (b) Parent's right to exercise the Option is subject to the following conditions: (i) Neither Parent nor Merger Sub shall have breached any of its material obligations under the Merger Agreement; (ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect; (iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and (iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder. (c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that: (i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect; (ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and (iii) All applicable waiting periods under the HSR Act shall have expired or been terminated. (d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the Stockholder. (e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree. (f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 4 contracts
Samples: Tender and Stockholder Support Agreement (Innoveda Inc), Tender and Stockholder Support Agreement (Innoveda Inc), Tender and Stockholder Support Agreement (Mentor Graphics Corp)
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent Optionee an irrevocable option (the "OptionOPTION") to purchase from time to time up to 14,489,951 authorized but unissued shares of common stock, par value $.0005 per share, of the Subject Shares, Company (the "COMPANY COMMON STOCK") upon the terms and subject to the conditions set forth herein (the "Optioned Shares"OPTIONED SHARES," which represent 19.9% of the issued and outstanding shares of Company Common Stock as of the date hereof). The ; provided, however, that in no event shall the number of shares of Company Common Stock for which the Option is exercisable exceed 19.9% of the issued and outstanding shares of Company Common Stock at the time of exercise (excluding any such shares issued or issuable under the Option).
(b) Subject to the terms and conditions set forth in this Agreement, the Option may be exercised by Parent Optionee in whole or or, from time to time time, in part, at any time following within 270 days after the occurrence of a Triggering Event (as defined belowdate hereof that the conditions in Section 2(a) hereof are satisfied and prior to the termination of the Option in accordance with Section 911 hereof. In the event Parent Optionee wishes to exercise the Option, Parent Optionee shall send a written notice to the Stockholder Company (the "Stock Exercise NoticeSTOCK EXERCISE NOTICE") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one business day from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase purchase, which date shall be not less than five days or more than 60 days after the Company's receipt of the Stock Exercise Notice (the "Closing DateCLOSING DATE"). Parent Optionee may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder Company will deliver to Parent Optionee a certificate or certificates for any shares that are certificated representing the Optioned Shares (which shall be endorsed with appropriate restrictive legends) in the denominations designated by Parent Optionee in its Stock Exercise Notice, free and Parent will clear of all liens and encumbrances and subject to no preemptive rights, as well as an executed new agreement with the same terms as this Agreement evidencing the right to purchase the balance of the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price")purchasable hereunder, payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholderif any. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the StockholderCompany.
(ec) Any closing hereunder shall take place on In the Closing Date specified event of any change in the number of issued and outstanding shares of Company Common Stock by Parent reason of any share dividend, reclassification, consolidation, division, subdivision or cancellation or other similar change in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, the corporate or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office capital structure of the Company, or at such other time the number of Optioned Shares subject to the Option and place the Exercise Price (as the parties hereto may agree.
(fhereinafter defined) per Optioned Share shall be appropriately adjusted. In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate additional shares of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from Company Common Stock are issued after the date of Parent's purchase this Agreement (other than pursuant to an event described in the preceding sentence or pursuant to this Agreement), the number of Optioned Shares subject to the Option shall be adjusted so that, after such issuance, it equals at least 19.9% of the Optioned Share number of shares of Company Common Stock then issued and outstanding (without considering any shares subject to or issued pursuant to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise PriceOption).
Appears in 2 contracts
Samples: Stock Option Agreement (Adc Telecommunications Inc), Stock Option Agreement (Adc Telecommunications Inc)
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent an irrevocable option (the "OptionOPTION") to purchase from time to time the Subject Shares, up to 461,099 authorized and unissued shares of Company Common Stock upon the terms and subject to the conditions set forth herein (the "Optioned SharesOPTIONED SHARES"). The Subject to the conditions set forth in Section 2, the Option may be exercised by Parent in whole or from time to time in part, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes to exercise the Option, Parent shall send deliver a written notice to the Stockholder Company (the "Stock Exercise NoticeSTOCK EXERCISE NOTICE") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 20 business days days, or such later date if a waiting period is applicable under the Hart-Xxxxx-Xxxxxx Xxxitrust Improvements Act of 1976, as amended (the "HSR ACT"), and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing DateCLOSING DATE"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defineddefined in Section 3) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the number of shares of Company Common Stock then issued and outstanding and 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent necessary to comply with the exception to the shareholder approval requirements of the Optioned Shares specified in the American Stock Exercise Notice as of the date such Stock Exercise Notice is given Exchange ("AMEX"), for any shares issued pursuant to the StockholderOption.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 2 contracts
Samples: Merger Agreement (Harris Corp /De/), Stock Option Agreement (Harris Corp /De/)
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent Acquiror an irrevocable option (the "Option") to purchase from time to time up to 484,991 authorized and unissued shares of common stock, par value $1.00 per share, of the Subject SharesCompany (the "Company Common Stock"), upon the terms and subject to the conditions set forth herein (the "Optioned Shares"); provided, however, that in no event shall the number of shares for which this Option is exercisable exceed 19.9% of the then issued and outstanding shares of Company Common Stock. The Subject to the conditions set forth in Section 3(a), the Option may be exercised by Parent Acquiror in whole or from time to time in part, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 9. 20.
(b) In the event Parent Acquiror wishes to exercise the OptionOption (an "Exercise"), Parent Acquiror shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 20 business days and not earlier than one two business day days from the date such notice Exercise Notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing Date"). Parent Acquiror may revoke an exercise of the Option Exercise at any time prior to the Closing Date by written notice to the applicable Stockholder; providedCompany.
(c) Certificates for Company Common Stock delivered at a closing hereunder shall be endorsed with a restrictive legend that shall read substantially as follows: "THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAW, AND MAY BE REOFFERED OR SOLD ONLY IF SO REGISTERED OR IF AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF THE STOCK OPTION AGREEMENT DATED AS OF JUNE 15, 2001, A COPY OF WHICH WILL BE PROVIDED TO THE HOLDER UPON REQUEST. It is understood and agreed that Parent may make no more than a total of one such revocation with respect to any and all exercises relating the reference to the Optioned Sharesresale restrictions of the Securities Act of 1933, as amended (the "1933 Act"), in the above legend shall be removed by delivery of substitute certificate(s) without such reference if Acquiror shall have delivered to the Company a copy of a letter from the staff of the SEC, or an opinion of counsel, in form and substance satisfactory to the Company, to the effect that such legend is not required for purposes of the 1933 Act. In addition, such certificates shall bear any other legend as may be required by law or this Agreement.
(d) In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number and type of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Option Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivOption Agreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the number of shares of Company Common Stock then issued and outstanding and 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, provided, however, that such percentage (and the corresponding number of shares) shall be reduced to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date necessary (but only to such Stock Exercise Notice is given extent) to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale cause the Company not to such Third Party Purchaser violate (or to have violated) any requirement imposed by NASDAQ (as hereinafter defined) to obtain approval of its shareholders prior to entering into this Option Agreement; and (ii) Parent's cost cause Acquiror not to violate (or to have violated) any requirement imposed by federal or state banking laws to which the Company is subject to obtain approval of investment in such Optioned Sharefederal or state regulators, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share or both, before crossing any threshold ownership level with respect to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise PriceCompany Common Stock.
Appears in 2 contracts
Samples: Merger Agreement (Ledger Capital Corp), Stock Option Agreement (Ledger Capital Corp)
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent an irrevocable option (the "OptionOPTION") to purchase from time to time up to 2,014,067 Common Shares, $0.01 par value per share, of the Subject SharesCompany (the "COMPANY COMMON STOCK"), upon the terms and subject to the conditions set forth herein (the "Optioned SharesOPTIONED SHARES"). The Subject to the conditions set forth in Section 2, the Option may be exercised by Parent in whole or from time to time in part, at any time following the occurrence of a Triggering Event (as defined below) and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder Company (the "Stock Exercise NoticeSTOCK EXERCISE NOTICE") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 20 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing DateCLOSING DATE"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent necessary to comply with the exception to the shareholder approval requirements of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given Nasdaq National Market ("NASDAQ"), for any shares issued pursuant to the StockholderOption.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 2 contracts
Samples: Stock Option Agreement (General Electric Co), Stock Option Agreement (Lunar Corp)
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent Optionee an irrevocable option (the "OptionOPTION") to purchase from time to time the Subject up to 7,799,805 authorized and unissued Ordinary Shares, nominal value $.0025 per share, of the Company (the "COMPANY ORDINARY SHARES") (which shall be evidenced by ADRs) upon the terms and subject to the conditions set forth herein (the "Optioned Shares"OPTIONED SHARES," which represent 19.9% of the issued and outstanding Company Ordinary Shares as of the date hereof). The .
(b) Subject to the terms and conditions set forth in this Agreement, the Option may be exercised by Parent Optionee in whole or or, from time to time time, in part, at any time following after the occurrence of a Triggering Event (as defined belowdate hereof that the conditions in Section 3(a) hereof are satisfied and prior to the termination of the Option in accordance with Section 912 hereof. In the event Parent Optionee wishes to exercise the Option, Parent Optionee shall send a written notice to the Stockholder Company (the "Stock Exercise NoticeSTOCK EXERCISE NOTICE") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one business day from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing DateCLOSING DATE"). Parent Optionee may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder Company will deliver to Parent Optionee a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent Optionee in its Stock Exercise Notice, free and Parent will clear of all liens and encumbrances and subject to no preemptive rights, as well as an executed new agreement with the same terms as this Agreement evidencing the right to purchase the balance of the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price")purchasable hereunder, payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholderif any. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the StockholderCompany.
(ec) Any closing hereunder shall take place on In the Closing Date specified event of any change in the number of issued and outstanding Company Ordinary Shares by Parent reason of any share dividend, reclassification, consolidation, division, subdivision or cancellation or other change in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, the corporate or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office capital structure of the Company, or at such other time the number of Optioned Shares subject to the Option and place the Exercise Price (as the parties hereto may agree.
(fhereinafter defined) per Optioned Share shall be appropriately adjusted. In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from additional Company Ordinary Shares are issued after the date of Parent's purchase this Agreement (other than pursuant to an event described in the preceding sentence or pursuant to this Agreement), the number of Optioned Shares subject to the Option shall be adjusted so that, after such issuance, it equals at least 19.9% of the Optioned Share number of Company Ordinary Shares then issued and outstanding (without considering any shares subject to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise PriceOption).
Appears in 2 contracts
Samples: Stock Option Agreement (Adc Telecommunications Inc), Stock Option Agreement (Adc Telecommunications Inc)
The Option; Exercise; Adjustments. (a) The Stockholder Upon the terms and subject to the conditions herein set forth, the Company hereby grants to Parent an irrevocable option (the "Option") to purchase from time up to time the Subject Shares, upon the terms 3,959,330 authorized and subject to the conditions set forth herein unissued Company Common Shares (the "Optioned Shares")) at the purchase price per Optioned Share specified in Section 3. The Subject to the conditions set forth in Section 2, the Option may be exercised by Parent Parent, in whole at any time or in part from time to time in parttime, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes shall elect to exercise the Option, in whole or in part, Parent shall send a written notice to the Stockholder Company (the an "Stock Option Exercise Notice") specifying the total number of Optioned Shares it wishes Parent elects to purchase and a date (which shall not be later than 10 20 business days and not nor earlier than one business day from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 two business days after the expiration or termination of the tender offerdate such Option Exercise Notice is given) for the closing of such purchase (the a "Closing Date"). Parent may revoke an exercise of the Option any such election at any time prior to the specified Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. 1.
(b) In the event of any change in the number of issued and outstanding shares of Subject Company Common Shares by reason of any stock dividend, stock split, split-upcombination of shares, reclassification, recapitalization, merger merger, consolidation, conversion, exchange of shares or exercise of rights or warrants, or any other change in the corporate or capital structure of the CompanyCompany (including, without limitation, the declaration or distribution of an extraordinary dividend payable in cash or securities) which would have the effect of diluting or otherwise adversely affecting Parent's rights and privileges under this Agreement, the number and kind of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached any consideration payable in respect of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the such Optioned Shares shall be in effect;
(iii) All applicable waiting periods appropriately adjusted to restore to Parent its rights, privileges and economic benefits under this Agreement. Without limiting the HSR Act shall have expired or been terminated; and
(iv) One or more generality of the following events (eachforegoing, a "Triggering Event") in any such event, at the election of Parent, the Option shall represent the right to purchase, in lieu of the Optioned Shares, whatever securities, cash or other property the Optioned Shares would have occurred on been converted into or after the date hereof: (A) the Company Board shall otherwise exchanged for, together with any securities, cash or other property which would have withdrawn or adversely modified (including by amendment been distributed with respect to the Schedule 14D-9)Optioned Shares, or failed upon Parent's request had Parent acquired the Optioned Shares prior to reconfirmsuch event and elected, its approval or recommendation of to the Offer, the Merger or the Merger Agreement (or determined fullest extent that it would have been permitted to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv)receive all such securities, the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereundercash or other property.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to exercises the Option hereunder after the Company has paid Parent a party which is not an affiliate of Parent fee (the "Third Party PurchaserFee") at any time within twelve months under Section 5.7(b), 5.7(c), 5.7(d) or 5.7(e) of Parent's acquisition of such Optioned Sharethe Merger Agreement, Parent shall promptly pay at each closing hereunder, remit to the Stockholder the Company an amount, if anyin cash, equal to the lesser of (i) the dollar amount by which the consideration for average of the per share closing prices on the New York Stock Exchange, Inc. ("NYSE") of the Company Common Shares (as reported in the New York Stock Exchange Composite Transactions) during the 20 consecutive trading days (or such Optioned Share received by Parent from fewer number of trading days after the date hereof, as the case may be) ending on the trading day prior to the date on which the exercise relating to such Third Party Purchaser closing occurs exceeds the Exercise Price less then in effect, multiplied by the number of Optioned Shares as to which the Option was then exercised (iit being understood that the operation of this clause shall not reduce any Stock Option Gain Amount previously paid or credited to the Company) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and or (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate amount of the Bank Fee paid to Parent; provided, however, that in the event of America as measured from time to time from the date of Parent's purchase more than one exercise of the Optioned Share Option, the aggregate amount to be remitted to the date Company pursuant to all exercises of Parent's receipt the Option shall not exceed the amount of such consideration from such Third Party Purchaser, to the Exercise PriceFee received.
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent an irrevocable option (the "OptionOPTION") to purchase from time to time up to 1,435,843 Common Shares, par value $.001 per share, of the Subject SharesCompany (the "COMPANY COMMON STOCK"), upon the terms and subject to the conditions set forth herein (the "Optioned SharesOPTIONED SHARES"). The Subject to the conditions set forth in Section 2, the Option may be exercised by Parent in whole or from time to time in part, at any time following the occurrence of a Triggering Event (as defined below) and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder Company (the "Stock Exercise NoticeSTOCK EXERCISE NOTICE") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 20 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing DateCLOSING DATE"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent necessary to comply with the exception to the shareholder approval requirements of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given Nasdaq National Market ("NASDAQ"), for any shares issued pursuant to the StockholderOption.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 1 contract
Samples: Stock Option Agreement (Mecon Inc)
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent --------------------------------- an irrevocable option (the "Option") to purchase from time to time up to ------ 1,598,530 authorized and unissued Common Shares, no par value, of the Subject SharesCompany (the "Company Common Stock"), upon the terms and subject to the conditions set -------------------- forth herein (the "Optioned Shares"). The Subject to the conditions set forth in --------------- Section 2, the Option may be exercised by Parent in whole or from time to time in part, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes to exercise the Option, after the satisfaction of the conditions set forth in Section 2 Parent shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") --------------------- specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing ------- Date"). Parent may revoke an exercise of the Option at any time prior to the ---- Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the number of shares of Company Common Stock then issued and outstanding and 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent necessary to comply with the exception to the shareholder approval requirements of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given Nasdaq National Market ("NASDAQ"), for ------ any shares issued pursuant to the StockholderOption.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to --------------------------------- Parent an irrevocable option (the "Option") to purchase from time to time up to ------ 3,643,066 authorized and unissued Common Shares, par value $.10 per share, of the Subject SharesCompany (the "Company Common Stock"), upon the terms and subject to the -------------------- conditions set forth herein (the "Optioned Shares"). The Subject to the conditions --------------- set forth in Section 2, the Option may be exercised by Parent in whole or from time to time in part, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") specifying the total number of Optioned Shares it --------------------- wishes to purchase and a date (not later than 10 20 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option ------------ at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the number of shares of Company Common Stock then issued and outstanding and 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent necessary to comply with the exception to the shareholder approval requirements of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given Nasdaq National Market ("NASDAQ"), for any shares issued pursuant to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.Option. ------
Appears in 1 contract
Samples: Stock Option Agreement (Marquette Medical Systems Inc)
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent an irrevocable option (the "Option") to purchase from time to time up to 1,598,530 authorized and unissued Common Shares, no par value, of the Subject SharesCompany (the "Company Common Stock"), upon the terms and subject to the conditions set forth herein (the "Optioned Shares"). The Subject to the conditions set forth in Section 2, the Option may be exercised by Parent in whole or from time to time in part, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes to exercise the Option, after the satisfaction of the conditions set forth in Section 2 Parent shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the number of shares of Company Common Stock then issued and outstanding and 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent necessary to comply with the exception to the shareholder approval requirements of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given Nasdaq National Market ("NASDAQ"), for any shares issued pursuant to the StockholderOption.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 1 contract
Samples: Stock Option Agreement (Total Control Products Inc)
The Option; Exercise; Adjustments. (a) The Stockholder Contemporaneously herewith the Purchaser and the Company are entering into the Contribution Agreement. Subject to the other terms and conditions set forth herein, the Company hereby grants to Parent the Purchaser an irrevocable option (the "Option") to purchase from time to time the Subject Shares, upon the terms and subject to the conditions set forth herein 2,750,238 shares of Common Stock (the "Optioned Shares"). The purchase price per Share (the "Purchase Price") shall be $13.50 per Share for each Share purchased prior to the Closing (as defined in the Contribution Agreement) and $15.50 per Share for each Share purchased after the Closing (as provided in Section 19 hereof).
(b) Subject to the provisions of Section 1(c), the Option may be exercised by Parent Purchaser, in whole or from time to time in part, at any time or from time to time following the occurrence of a Triggering an Exercise Event (as defined below) and prior to the termination of the Option in accordance with Section 918 hereof; provided that any purchase of Shares upon exercise of the Option shall be subject to compliance with applicable law. In Notwithstanding the event Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one business day from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise termination of the Option, Purchaser shall be entitled to purchase the period Shares with respect to which it has exercised the Option in this clause shall not begin before accordance with the expiration or terms hereof prior to the termination of the tender offer and Option. As used herein, an "Exercise Event" shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned Shares. In have occurred in the event of any change in the number of issued and outstanding shares of Subject Shares by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
that (i) Neither Parent nor Merger Sub shall have breached any person (other than Western Resources or any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event"Subsidiaries) shall have occurred on or after commenced (as such term is defined in Rule 14d-2 under the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9Exchange Act), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to filed a registration statement under the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) Securities Act with respect to, a tender offer or exchange offer to purchase any shares of Common Stock such that, if successfulupon consummation of such offer, would result in any such person or group becoming a "group" (as such term is defined under the Exchange Act) of which such person is a member shall have acquired beneficial owner ownership (as such term is defined in rule 13d-3 of 15% the Exchange Act), or the right to acquire beneficial ownership, of 20 percent or more of the then outstanding Shares is commenced Common Stock; (ii) the Company or any of its Subsidiaries shall have authorized, recommended, proposed or publicly announced an intention to authorize, recommend or propose, or entered into, an agreement with any person (other than Purchaser or any of its Subsidiaries) to (A) effect a merger, consolidation or other business combination involving the Company or any of its subsidiaries, (B) sell, lease or otherwise dispose of assets of the company or any of its Subsidiaries aggregating 20 percent or more of the consolidated assets of the Company and its Subsidiaries, taken as a whole, or (C) issue, sell or otherwise dispose of (including by Parent way of merger, consolidation, share exchange or any similar transaction) securities representing 20 percent or more of the voting power of the Company or any of its Subsidiaries (any of the foregoing, an affiliate "Acquisition Transaction"); (iii) any person (other than Purchaser or any of Parent)its Subsidiaries) shall have acquired beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act) or the right to acquire beneficial ownership of, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, shares of Common Stock (other than trust account shares) aggregating 20 percent or more of the then outstanding Common Stock; or (Div) there is the holders of Common Stock shall not have approved the Charter Amendment and the Share Issuance (each as defined in the Contribution Agreement) at the meeting of such shareholder held for the purpose of voting on the Charter Amendment and the Share Issuance, such meeting shall not have been held or shall have been cancelled prior to termination of the Contribution Agreement or the board of directors of the Company shall have withdrawn or modified in a public announcement with respect manner adverse to a plan Purchaser or intention to Purchaser's ability to consummate the transactions contemplated by the Company, other than with respect to Parent or its affiliates, to effect any Contribution Agreement the recommendation of the foregoing transactions. For purposes board of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) directors of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.Company with
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent --------------------------------- an irrevocable option (the "Option") to purchase from time to time up to ------ 2,243,346 Common Shares, par value $.01 per share, of the Subject SharesCompany (the "Company ------- Common Stock"), upon the terms and subject to the conditions set forth herein ------------ (the "Optioned Shares"). The Subject to the conditions set forth in Section 2, the --------------- Option may be exercised by Parent in whole or from time to time in part, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") --------------------- specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 20 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing ------- Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent adjusted so that, after such issuance, it equals (but does not exceed) 15% of the Optioned Shares specified in the number of shares of Company Common Stock Exercise Notice as then issued and outstanding and 15% of the date such Stock Exercise Notice is given to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all voting power of shares of capital stock of the conditions in Section 5(b) Company then issued and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agreeoutstanding.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Contemporaneously herewith, the Grantee and the Grantor are entering into the Merger Agreement. Subject to the other terms and conditions set forth herein, the Grantor hereby grants to Parent the Grantee an irrevocable option (the "Option") to purchase from time up to time 15,673,160 (as adjusted as provided herein) shares of Common Stock (the Subject shares issuable upon exercise of this Option being referred to as the "Shares, upon the terms and subject to the conditions set forth herein ") at a per Share cash purchase price (the "Optioned SharesPurchase Price"). The Option may be exercised by Parent in whole or from time ) equal to time in part, at any time following the occurrence lesser of (i) $28.3125 and (ii) the product of (A) the closing price of a Triggering Event share of the Grantee's common stock, par value $1.00, per share, on the New York Stock Exchange Composite Tape (the "NYSE Composite Tape") on the trading day (the "Prior Trading Day") immediately prior to the day on which the Grantee delivers a Stock Exercise Notice, multiplied by (B) the Exchange Ratio (as defined belowin the Merger Agreement) and prior to in effect on the termination of the Option in accordance with Section 9. Prior
b) In the event Parent the Grantee wishes to exercise the Option, Parent the Grantee shall send a written notice to the Stockholder Grantor (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (subject to the HSR Act (as defined below)) not later than 10 business days and not earlier than one the next business day from following the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) given for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned Sharespurchase. In the event of any change in the number of issued and outstanding shares of Subject Shares Common Stock by reason of any stock dividend, stock split, split-up, reclassification, recapitalization, merger or other change in the corporate or capital structure of the CompanyGrantor, the number of Optioned Shares subject to the this Option and the Exercise Price (as hereinafter defined) purchase price per Optioned Share shall be appropriately adjusted.
(b) Parent's adjusted to restore the Grantee to its rights hereunder, including its right to exercise purchase Shares representing 18% of the Option capital stock of the Grantor entitled to vote generally for the election of the directors of the Grantor which is subject issued and outstanding immediately prior to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve at an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to aggregate purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Purchase Price (the "Exercise Price"), payable in cashmultiplied by 15,673,160. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sellsany additional shares of Common Stock are issued after the date of this Agreement upon (i) the conversion of any currently issued Series A Convertible Participating Preferred Stock, conveyspar value $.01 per share, exchanges of the Grantor, (ii) the exchange of any Exchangeable Non-Voting Shares of SoftKey Software Products Inc., (iii) the conversion of any amount of the 5 1/2% Senior Convertible Notes due 2000 of the Grantor, or otherwise transfers any Optioned Share to a party which is not an affiliate (iv) the issuance of Parent ("Third Party Purchaser") at any time within twelve months 828,054 shares of ParentCommon Stock in connection with the Grantor's acquisition of Palladium Interactive, Inc., the number of Shares subject to this Option shall be increased by 18% of the number of the additional shares of Common Stock so issued (and such Optioned Share, Parent additional Shares shall promptly pay have a purchase price equal to the Stockholder Purchase Price); provided, however, that in no event will the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost number of investment in such Optioned Share, as measured by applying the prime rate shares issued upon exercise of the Bank of America as measured from time Option exceed the maximum amount permitted to time from be issued without shareholder approval under the date of Parent's purchase rules of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise PriceNew York Stock Exchange ("NYSE").
Appears in 1 contract
Samples: Merger Agreement (Learning Co Inc)
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent an irrevocable option (the "OptionOPTION") to purchase from time to time up to a number of shares equal to 19.9% of the Subject Sharesauthorized and issued shares of Common Stock, no par value per share, of the Company (the "COMPANY COMMON STOCK") outstanding at the time of the Stock Exercise Notice (as defined below), upon the terms and subject to the conditions set forth herein (the "Optioned SharesOPTIONED SHARES"). The Subject to the conditions set forth in Section 2, the Option may be exercised by Parent in whole or from time to time in part, at any time following the occurrence of a Triggering Event (as defined below) and prior to the termination of the Option in accordance with Section 919. In the event If Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder Company (the "Stock Exercise NoticeSTOCK EXERCISE NOTICE") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 20 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing DateCLOSING DATE"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of If any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the number of shares of Company Common Stock then issued and outstanding and 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent necessary to comply with the exception to the shareholder approval requirements of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given Nasdaq National Market ("NASDAQ") for any shares issued pursuant to the StockholderOption.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent Optionee an irrevocable option (the "Option") to purchase from time to time up to 14,489,951 authorized but unissued shares of common stock, par value $.0005 per share, of the Subject Shares, Company (the "Company Common Stock") upon the terms and subject to the conditions set forth herein (the "Optioned Shares"," which represent 19.9% of the issued and outstanding shares of Company Common Stock as of the date hereof). The ; provided, however, that in no event shall the number of shares of Company Common Stock for which the Option is exercisable exceed 19.9% of the issued and outstanding shares of Company Common Stock at the time of exercise (excluding any such shares issued or issuable under the Option).
(b) Subject to the terms and conditions set forth in this Agreement, the Option may be exercised by Parent Optionee in whole or or, from time to time time, in part, at any time following within 270 days after the occurrence of a Triggering Event (as defined belowdate hereof that the conditions in Section 2(a) hereof are satisfied and prior to the termination of the Option in accordance with Section 911 hereof. In the event Parent Optionee wishes to exercise the Option, Parent Optionee shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one business day from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase purchase, which date shall be not less than five days or more than 60 days after the Company's receipt of the Stock Exercise Notice (the "Closing Date"). Parent Optionee may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder Company will deliver to Parent Optionee a certificate or certificates for any shares that are certificated representing the Optioned Shares (which shall be endorsed with appropriate restrictive legends) in the denominations designated by Parent Optionee in its Stock Exercise Notice, free and Parent will clear of all liens and encumbrances and subject to no preemptive rights, as well as an executed new agreement with the same terms as this Agreement evidencing the right to purchase the balance of the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price")purchasable hereunder, payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholderif any. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the StockholderCompany.
(ec) Any closing hereunder shall take place on In the Closing Date specified event of any change in the number of issued and outstanding shares of Company Common Stock by Parent reason of any share dividend, reclassification, consolidation, division, subdivision or cancellation or other similar change in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, the corporate or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office capital structure of the Company, or at such other time the number of Optioned Shares subject to the Option and place the Exercise Price (as the parties hereto may agree.
(fhereinafter defined) per Optioned Share shall be appropriately adjusted. In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate additional shares of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from Company Common Stock are issued after the date of Parent's purchase this Agreement (other than pursuant to an event described in the preceding sentence or pursuant to this Agreement), the number of Optioned Shares subject to the Option shall be adjusted so that, after such issuance, it equals at least 19.9% of the Optioned Share number of shares of Company Common Stock then issued and outstanding (without considering any shares subject to or issued pursuant to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise PriceOption).
Appears in 1 contract
Samples: Stock Option Agreement (Pairgain Technologies Inc /Ca/)
The Option; Exercise; Adjustments. (a) The Stockholder Subject to the other terms and conditions set forth herein, the Grantor hereby grants to Parent the Grantee an irrevocable option (the "Option") to purchase from time up to time the Subject Shares, upon the terms and subject to the conditions set forth herein [ ] shares of Common Stock (the "Optioned Shares")) at an initial cash purchase price of $[ *] * The amount of the equity contribution made by International Mezzaine Investment N.V. to the Grantor used by Footnote continued on next page. per share. The Option may be exercised by Parent the Grantee, in whole or from time to time in part, at any time, or from time to time, (i) prior to the Merger and following the occurrence sale by the Grantor of all or a Triggering Event majority of its interest in IAC or (as defined belowii) after the Merger and following the sale by IMI of all or a majority of its interest in IAC and, in the case of clause (i) or (ii), prior to the termination of the Option in accordance with Section 9. the terms of this Agreement.
(b) In the event Parent the Grantee wishes to exercise the Option, Parent the Grantee shall send a written notice to the Stockholder Grantor (the "Stock Exercise Notice") specifying its intention to exercise the Option, the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one the next business day from following the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) given for the closing of such purchase purchase.
(the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned Shares. c) In the event of any change in the number of issued and outstanding shares of Subject Shares Common Stock of the Grantor by reason of any stock dividend, stock split, split-up, recapitalization, merger (including the Merger), rights offering, share exchange or other change in the corporate or capital structure of the CompanyGrantor, the number Grantee shall receive, upon exercise of Optioned the Option, the stock or other securities, cash or property to which the Grantee would have been entitled if the Grantee had exercised the Option and had been a holder of record of shares of Common Stock of the Grantor on the record date fixed for determination of holders of shares of Common Stock of the Grantor entitled to receive such stock or other securities, cash or property and the purchase price per Share shall be increased or decreased proportionately so that the aggregate purchase price for the Shares subject to the Option and shall remain the Exercise Price (same as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right immediately prior to exercise such event. In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced hereof (other than by Parent or pursuant to an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by event described in the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes preceding sentence of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise shares of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are Common Stock subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted (but not decreased) so that, after such issuance, the number of shares of the Grantor to acquire stock of the Grantee in the intitial acquisition and the subsequent merger divided by the aggregate number of outstanding shares of Common Stock of IAC. Common Stock subject to the extent Option equals at least ten percent (10%) of the Optioned Shares specified in the number of shares of Common Stock Exercise Notice as of the date such Stock Exercise Notice is given to the StockholderIAC then issued and outstanding on a fully diluted basis.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 1 contract
Samples: Stock Option Agreement (Industrial Acoustics Co Inc)
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to --------------------------------- Parent an irrevocable option (the "Option") to purchase from time to time up to ------ 3,406,530 authorized and unissued shares of Common Stock, par value $0.001 per share, of the Subject SharesCompany (the "Company Common Stock"), upon the terms and subject -------------------- to the conditions set forth herein (the "Optioned Shares"). The Subject to the --------------- conditions set forth in Section 2, the Option may be exercised by Parent in whole or from time to time in part, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 919. In the event If Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") specifying the total number of Optioned Shares it --------------------- wishes to purchase and a date (not later than 10 20 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option ------------ at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of If there is any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached . If any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the number of shares of Company Common Stock then issued and outstanding and 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent necessary to comply with the exception to the stockholder approval requirements of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given Nasdaq National Market ("NASDAQ"), for any shares issued pursuant to the Stockholder------ Option.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent an irrevocable option (the "Option") to purchase from time to time up to 20,200,000 authorized and unissued shares of common stock, par value $.01 per share, of the Subject SharesCompany (the "Company Common Stock"), upon the terms and subject to the conditions set forth herein (the "Optioned Shares"). The Subject to the conditions set forth in Section 2(a), the Option may be exercised by Parent in whole or from time to time in part, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 20 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number and type of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the 2 Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the number of shares of Company Common Stock then issued and outstanding and 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent of necessary to comply with the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given exception to the Stockholder.
shareholder approval requirements of NASDAQ (e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice as hereinafter defined), for any shares issued pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agreeOption.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 1 contract
Samples: Stock Option Agreement (Ciena Corp)
The Option; Exercise; Adjustments. (a) The Stockholder Contemporaneously herewith, the Grantee and the Grantor are entering into the Merger Agreement. Subject to the other terms and conditions set forth herein, the Grantor hereby grants to Parent the Grantee an irrevocable option (the "Option") to purchase from time up to time 15,673,160 (as adjusted as provided herein) shares of Common Stock (the Subject shares issuable upon exercise of this Option being referred to as the "Shares, upon the terms and subject to the conditions set forth herein ") at a per Share cash purchase price (the "Optioned SharesPurchase Price")) equal to the lesser of (i) $28.3125 and (ii) the product of (A) the closing price of a share of the Grantee's common stock, par value $1.00, per share, on the New York Stock Exchange Composite Tape (the "NYSE Composite Tape") on the trading day (the "Prior Trading Day") immediately prior to the day on which the Grantee delivers a Stock Exercise Notice, multiplied by (B) the Exchange Ratio (as defined in the Merger Agreement) in effect on the Prior 2 Trading Day. The Option may be exercised by Parent the Grantee, in whole or from time to time in part, at any time, or from time to time, following the occurrence of a Triggering Event (as defined below) and prior to the termination of the Option in accordance with Section 9. the terms of this Agreement.
b) In the event Parent the Grantee wishes to exercise the Option, Parent the Grantee shall send a written notice to the Stockholder Grantor (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (subject to the HSR Act (as defined below)) not later than 10 business days and not earlier than one the next business day from following the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) given for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned Sharespurchase. In the event of any change in the number of issued and outstanding shares of Subject Shares Common Stock by reason of any stock dividend, stock split, split-up, reclassification, recapitalization, merger or other change in the corporate or capital structure of the CompanyGrantor, the number of Optioned Shares subject to the this Option and the Exercise Price (as hereinafter defined) purchase price per Optioned Share shall be appropriately adjusted.
(b) Parent's adjusted to restore the Grantee to its rights hereunder, including its right to exercise purchase Shares representing 18% of the Option capital stock of the Grantor entitled to vote generally for the election of the directors of the Grantor which is subject issued and outstanding immediately prior to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve at an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to aggregate purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Purchase Price (the "Exercise Price"), payable in cashmultiplied by 15,673,160. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sellsany additional shares of Common Stock are issued after the date of this Agreement upon (i) the conversion of any currently issued Series A Convertible Participating Preferred Stock, conveyspar value $.01 per share, exchanges of the Grantor, (ii) the exchange of any Exchangeable Non-Voting Shares of SoftKey Software Products Inc., (iii) the conversion of any amount of the 5 1/2% Senior Convertible Notes due 2000 of the Grantor, or otherwise transfers any Optioned Share to a party which is not an affiliate (iv) the issuance of Parent ("Third Party Purchaser") at any time within twelve months 828,054 shares of ParentCommon Stock in connection with the Grantor's acquisition of Palladium Interactive, Inc., the number of Shares subject to this Option shall be increased by 18% of the number of the additional shares of Common Stock so issued (and such Optioned Share, Parent additional Shares shall promptly pay have a purchase price equal to the Stockholder Purchase Price); provided, however, that in no event will the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost number of investment in such Optioned Share, as measured by applying the prime rate shares issued upon exercise of the Bank of America as measured from time Option exceed the maximum amount permitted to time from be issued without shareholder approval under the date of Parent's purchase rules of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise PriceNew York Stock Exchange ("NYSE").
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Contemporaneously herewith, the Grantee and the Grantor are entering into the Merger Agreement. Subject to the other terms and conditions set forth herein, the Grantor hereby grants to Parent the Grantee an irrevocable option (the "Option") to purchase from time up to time 15,673,160 (as adjusted as provided herein) ------ shares of Common Stock (the Subject shares issuable upon exercise of this Option being referred to as the "Shares, upon the terms and subject to the conditions set forth herein ") at a per Share cash purchase price (the "Optioned SharesPurchase ----- -------- Price")) equal to the lesser of (i) $28.3125 and (ii) the product of (A) the ----- closing price of a share of the Grantee's common stock, par value $1.00, per share, on the New York Stock Exchange Composite Tape (the "NYSE Composite Tape") ------------------- on the trading day (the "Prior Trading Day") immediately prior to the day on ----------------- which the Grantee delivers a Stock Exercise Notice, multiplied by (B) the Exchange Ratio (as defined in the Merger Agreement) in effect on the Prior Trading Day. The Option may be exercised by Parent the Grantee, in whole or from time to time in part, at any time, or from time to time, following the occurrence of a Triggering Event (as defined below) and prior to the termination of the Option in accordance with Section 9. the terms of this Agreement.
(b) In the event Parent the Grantee wishes to exercise the Option, Parent the Grantee shall send a written notice to the Stockholder Grantor (the "Stock Exercise Notice") --------------------- specifying the total number of Optioned Shares it wishes to purchase and a date (subject to the HSR Act (as defined below)) not later than 10 business days and not earlier than one the next business day from following the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) given for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned Sharespurchase. In the event of any change in the number of issued and outstanding shares of Subject Shares by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.the
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent --------------------------------- an irrevocable option (the "Option") to purchase from time to time up to ------ 1,598,530 authorized and unissued Common Shares, no par value, of the Subject SharesCompany (the "Company Common Stock"), upon the terms and subject to the conditions set -------------------- forth herein (the "Optioned Shares"). The Subject to the conditions set forth in --------------- Section 2, the Option may be exercised by Parent in whole or from time to time in part, at any time following after the occurrence of a Triggering Event (as defined below) date hereof and prior to the termination of the Option in accordance with Section 919. In the event Parent wishes to exercise the Option, after the satisfaction of the conditions set forth in Section 2 Parent shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") --------------------- specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one two business day days from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing ------- Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares Company Common Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise . In the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached event that any additional shares of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order Company Common Stock are issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger this Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent pursuant to an event described in the preceding sentence or an affiliate of Parent); or (D) there is a public announcement with respect pursuant to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (ivAgreement), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) number of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised adjusted so that, after such issuance, it equals (but does not exceed) 19.9% of the number of shares of Company Common Stock then issued and outstanding and 19.9% of the voting power of shares of capital stock of the Company then issued and outstanding, after reduction, to the extent necessary to comply with the exception to the shareholder approval requirements of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given Nasdaq National Market ("NASDAQ"), for ------ any shares issued pursuant to the StockholderOption.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Contemporaneously herewith the Purchaser and the Company are entering into the Contribution Agreement. Subject to the other terms and conditions set forth herein, the Company hereby grants to Parent the Purchaser an irrevocable option (the "Option") to purchase from time to time the Subject Shares, upon the terms and subject to the conditions set forth herein 2,750,238 shares of Common Stock (the "Optioned Shares"). The purchase price per Share (the "Purchase Price") shall be $13.50 per Share for each Share purchased prior to the Closing (as defined in the Contribution Agreement) and $15.50 per Share for each Share purchased after the Closing (as provided in Section 19 hereof).
(b) Subject to the provisions of Section 1(c), the Option may be exercised by Parent Purchaser, in whole or from time to time in part, at any time or from time to time following the occurrence of a Triggering an Exercise Event (as defined below) and prior to the termination of the Option in accordance with Section 918 hereof; provided that any purchase of Shares upon exercise of the Option shall be subject to compliance with applicable law. In Notwithstanding the event Parent wishes to exercise the Option, Parent shall send a written notice to the Stockholder (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one business day from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise termination of the Option, Purchaser shall be entitled to purchase the period Shares with respect to which it has exercised the Option in this clause shall not begin before 2 accordance with the expiration or terms hereof prior to the termination of the tender offer and Option. As used herein, an "Exercise Event" shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned Shares. In have occurred in the event of any change in the number of issued and outstanding shares of Subject Shares by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
that (i) Neither Parent nor Merger Sub shall have breached any person (other than Western Resources or any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event"Subsidiaries) shall have occurred on or after commenced (as such term is defined in Rule 14d-2 under the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9Exchange Act), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to filed a registration statement under the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) Securities Act with respect to, a tender offer or exchange offer to purchase any shares of Common Stock such that, if successfulupon consummation of such offer, would result in any such person or group becoming a "group" (as such term is defined under the Exchange Act) of which such person is a member shall have acquired beneficial owner ownership (as such term is defined in rule 13d-3 of 15% the Exchange Act), or the right to acquire beneficial ownership, of 20 percent or more of the then outstanding Shares is commenced Common Stock; (ii) the Company or any of its Subsidiaries shall have authorized, recommended, proposed or publicly announced an intention to authorize, recommend or propose, or entered into, an agreement with any person (other than Purchaser or any of its Subsidiaries) to (A) effect a merger, consolidation or other business combination involving the Company or any of its subsidiaries, (B) sell, lease or otherwise dispose of assets of the company or any of its Subsidiaries aggregating 20 percent or more of the consolidated assets of the Company and its Subsidiaries, taken as a whole, or (C) issue, sell or otherwise dispose of (including by Parent way of merger, consolidation, share exchange or any similar transaction) securities representing 20 percent or more of the voting power of the Company or any of its Subsidiaries (any of the foregoing, an affiliate "Acquisition Transaction"); (iii) any person (other than Purchaser or any of Parent)its Subsidiaries) shall have acquired beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange Act) or the right to acquire beneficial ownership of, or any "group" (as such term is defined under the Exchange Act) shall have been formed which beneficially owns or has the right to acquire beneficial ownership of, shares of Common Stock (other than trust account shares) aggregating 20 percent or more of the then outstanding Common Stock; or (Div) there is the holders of Common Stock shall not have approved the Charter Amendment and the Share Issuance (each as defined in the Contribution Agreement) at the meeting of such shareholder held for the purpose of voting on the Charter Amendment and the Share Issuance, such meeting shall not have been held or shall have been cancelled prior to termination of the Contribution Agreement or the board of directors of the Company shall have withdrawn or modified in a public announcement with respect manner adverse to a plan Purchaser or intention to Purchaser's ability to consummate the transactions contemplated by the Company, other than with respect to Parent or its affiliates, to effect any Contribution Agreement the recommendation of the foregoing transactions. For purposes board of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) directors of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from the date of Parent's purchase of the Optioned Share to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise Price.Company with
Appears in 1 contract
Samples: Stock Option Agreement (Protection One Alarm Monitoring Inc)
The Option; Exercise; Adjustments. (a) The Stockholder Contemporaneously herewith the Parent and the Company are entering into the Merger Agreement. Subject to the other terms and conditions set forth herein, the Company hereby grants to the Parent an irrevocable option (the "Option") to purchase from time up to time the Subject Shares, upon the terms and subject to the conditions set forth herein 1,159,410 shares of Common Stock (the "Optioned Shares"). The purchase price per Share (the "Purchase Price") shall be $29.00.
(b) Subject to the provisions of Section 1(c), the Option may be exercised by Parent the Parent, in whole or from time to time in part, at any time following or from time to time after (i) (A) the termination of the Merger Agreement and (B) the occurrence of a Triggering Event any circumstance that would entitle the Parent to receive the fee provided for pursuant to Section 6.3(b) or (ii) the commencement of any Acquisition Proposal as defined belowin Section 6.5(a)(i) of the Merger Agreement and prior to the termination of the Option in accordance with Section 918 hereof; provided that any purchase of Shares upon exercise of the Option shall be subject to compliance with applicable law. Notwithstanding the termination of the Option, Parent shall be entitled to purchase the Shares with respect to which it has exercised the Option in accordance with the terms hereof prior to the termination of the Option.
(c) In the event the Parent wishes to exercise the Option, the Parent shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (subject to the HSR Act (as defined below) not later than 10 20 business days and not earlier than one three business day from days following the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase (the "Closing Date"). Parent may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned Sharespurchase. In the event of any change in the number of issued and outstanding shares of Subject Shares Common DA1:\55191\02\16L302!.DOC Stock by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to this Option and the purchase price per Share shall be appropriately adjusted to restore the Parent to its rights hereunder, including its right to purchase Shares representing approximately 19.9% of the capital stock of the Company entitled to vote generally for the election of the directors of the Company which are issued and outstanding immediately prior to the exercise of the Option at an aggregate purchase price equal to the Purchase Price multiplied by 1,159,410; provided, however, that in no event shall any adjustment be made under this Section 1(c) with respect to any transaction contemplated or permitted by the Merger Agreement.
(d) If at any time the Option is then exercisable pursuant to the terms of Section 1(b)(i) hereof, the Parent may elect, in lieu of exercising the Option to purchase Shares provided in Section 1(a) hereof, to send a written notice to the Company (the "Cash Exercise Notice") specifying a date not later than 20 business days and not earlier than 10 business days following the date such notice is given on which date the Company shall pay to the Parent an amount in cash equal to the Spread (as hereinafter defined) multiplied by all or such portion of the Shares subject to the Option as Parent shall specify. As used herein "Spread" shall mean the excess, if any, over the Purchase Price of the higher of (x) if applicable, the highest price per share of Common Stock (including any brokerage commissions, transfer taxes and the Exercise Price soliciting dealers' fees) paid by any person pursuant to an Acquisition Proposal (as hereinafter defineddefined in the Merger Agreement) per Optioned Share (the "Alternative Purchase Price") or (y) the closing price of the shares of Common Stock on the Nasdaq Stock Market on the last trading day immediately prior to the date of the Cash Exercise Notice (the "Closing Price"). If the Alternative Purchase Price includes any property other than cash, the Alternative Purchase Price shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
sum of (i) Neither Parent nor Merger Sub shall have breached any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder will deliver to Parent a certificate or certificates for any shares that are certificated representing the Optioned Shares in the denominations designated by Parent in its Stock Exercise Notice, and Parent will purchase the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price"), payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholder. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the Stockholder.
(e) Any closing hereunder shall take place on the Closing Date specified by Parent in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office of the Company, or at such other time and place as the parties hereto may agree.
(f) In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the fixed cash amount, if any, by which included in the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Alternative Purchase Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and plus (ii) Parent's cost the fair market value of investment in such Optioned Shareother property. If such other property consists of securities with an existing public trading market, as measured by applying the prime rate average of the Bank of America as measured from time to time from closing prices (or the date of Parent's purchase average of the Optioned Share closing bid and asked prices if closing prices are unavailable) for such securities in their principal public trading market on the five trading days ending two trading days prior to the date of Parent's receipt the Cash Exercise Notice shall be deemed to equal the fair market value of such consideration from property. If such Third Party Purchaserother property consists of something other than cash or securities with an existing public trading market and, as of the payment date for the Spread, agreement on the value of such other property has not been reached, the Alternative Purchase Price shall be deemed to equal the Exercise Closing Price. Upon exercise of its right to receive cash pursuant to this Section 1(c), the obligations of the Company to deliver Shares pursuant to Section 3 shall be terminated with respect to such number of Shares for which the Parent shall have elected to be paid the Spread.
Appears in 1 contract
The Option; Exercise; Adjustments. (a) The Stockholder Company hereby grants to Parent Optionee an irrevocable option (the "Option") to purchase from time to time up to 5,828,667 authorized but unissued shares of common stock, par value $.01 per share, of the Subject Shares, Company (the "Company Common Stock") upon the terms and subject to the conditions set forth herein (the "Optioned Shares"," which represent 19.9% of the issued and outstanding shares of Company Common Stock as of the date hereof). The ; provided, however, that in no event shall the number of shares of Company Common Stock for which the Option is exercisable exceed 19.9% of the issued and outstanding shares of Company Common Stock at the time of exercise (excluding any such shares issued or issuable under the Option).
(b) Subject to the terms and conditions set forth in this Agreement, the Option may be exercised by Parent Optionee in whole or or, from time to time time, in part, at any time following within 270 days after the occurrence of a Triggering Event (as defined belowdate hereof that the conditions in Section 2(a) hereof are satisfied and prior to the termination of the Option in accordance with Section 911 hereof. In the event Parent Optionee wishes to exercise the Option, Parent Optionee shall send a written notice to the Stockholder Company (the "Stock Exercise Notice") specifying the total number of Optioned Shares it wishes to purchase and a date (not later than 10 business days and not earlier than one business day from the date such notice is given; provided, however, that if Rule 14e-5 under the Exchange Act is applicable at the time of exercise of the Option, the period in this clause shall not begin before the expiration or termination of the tender offer and shall extend for 10 business days after the expiration or termination of the tender offer) for the closing of such purchase purchase, which date shall be not less than five days or more than 60 days after the Company's receipt of the Stock Exercise Notice (the "Closing Date"). Parent Optionee may revoke an exercise of the Option at any time prior to the Closing Date by written notice to the applicable Stockholder; provided, that Parent may make no more than a total of one such revocation with respect to any and all exercises relating to the Optioned SharesCompany. In the event of any change in the number of issued and outstanding shares of Subject Shares by reason of any stock dividend, stock split, split-up, recapitalization, merger or other change in the corporate or capital structure of the Company, the number of Optioned Shares subject to the Option and the Exercise Price (as hereinafter defined) per Optioned Share shall be appropriately adjusted.
(b) Parent's right to exercise the Option is subject to the following conditions:
(i) Neither Parent nor Merger Sub shall have breached any of its material obligations under the Merger Agreement;
(ii) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States invalidating the grant or prohibiting the exercise of the Option or the delivery of the Optioned Shares shall be in effect;
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated; and
(iv) One or more of the following events (each, a "Triggering Event") shall have occurred on or after the date hereof: (A) the Company Board shall have withdrawn or adversely modified (including by amendment to the Schedule 14D-9), or failed upon Parent's request to reconfirm, its approval or recommendation of the Offer, the Merger or the Merger Agreement (or determined to do so); (B) the Company Board shall have determined to recommend to the Company's stockholders that they approve an Acquisition Proposal other than the Offer and the Merger or shall have determined to accept a Superior Proposal; (C) a tender offer or exchange offer that, if successful, would result in any person or group becoming a beneficial owner of 15% or more of the outstanding Shares is commenced (other than by Parent or an affiliate of Parent); or (D) there is a public announcement with respect to a plan or intention by the Company, other than with respect to Parent or its affiliates, to effect any of the foregoing transactions. For purposes of this subparagraph (iv), the terms "group" and "beneficial owner" shall be defined by reference to Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder.
(c) Parent's obligation to purchase the Optioned Shares following the exercise of the Option, and the Stockholder's obligation to deliver the Optioned Shares, are subject to the conditions that:
(i) No preliminary or permanent injunction or other order issued by any federal or state court of competent jurisdiction in the United States prohibiting the delivery of the Optioned Shares shall be in effect;
(ii) The purchase of the Optioned Shares will not violate any material law, rule or regulation; and
(iii) All applicable waiting periods under the HSR Act shall have expired or been terminated.
(d) At any Closing Date, the applicable Stockholder Company will deliver to Parent Optionee a certificate or certificates for any shares that are certificated representing the Optioned Shares (which shall be endorsed with appropriate restrictive legends) in the denominations designated by Parent Optionee in its Stock Exercise Notice, free and Parent will clear of all liens and encumbrances and subject to no preemptive rights, as well as an executed new agreement with the same terms as this Agreement evidencing the right to purchase the balance of the Optioned Shares from the Stockholder at a price per Optioned Share equal to the Offer Price (the "Exercise Price")purchasable hereunder, payable in cash. Payment made by Parent to the Stockholder pursuant to this Agreement shall be made by wire transfer of federal funds to a bank designated by the Stockholderif any. After payment of the Exercise Price for the Optioned Shares covered by the Stock Exercise Notice, the Option shall be deemed exercised to the extent of the Optioned Shares specified in the Stock Exercise Notice as of the date such Stock Exercise Notice is given to the StockholderCompany.
(ec) Any closing hereunder shall take place on In the Closing Date specified event of any change in the number of issued and outstanding shares of Company Common Stock by Parent reason of any share dividend, reclassification, consolidation, division, subdivision or cancellation or other similar change in its Stock Exercise Notice pursuant to Section 5(a) at 10:00 a.m., local time, the corporate or the first business day thereafter on which all of the conditions in Section 5(b) and 5(c) are met, at the principal executive office capital structure of the Company, or at such other time the number of Optioned Shares subject to the Option and place the Exercise Price (as the parties hereto may agree.
(fhereinafter defined) per Optioned Share shall be appropriately adjusted. In the event that Parent sells, conveys, exchanges or otherwise transfers any Optioned Share to a party which is not an affiliate additional shares of Parent ("Third Party Purchaser") at any time within twelve months of Parent's acquisition of such Optioned Share, Parent shall promptly pay to the Stockholder the amount, if any, by which the consideration for such Optioned Share received by Parent from such Third Party Purchaser exceeds the Exercise Price less (i) Parent's cost per share, including without limitation applicable brokerage commissions and other actual transaction costs, associated solely with such sale to such Third Party Purchaser and (ii) Parent's cost of investment in such Optioned Share, as measured by applying the prime rate of the Bank of America as measured from time to time from Company Common Stock are issued after the date of Parent's purchase this Agreement (other than pursuant to an event described in the preceding sentence or pursuant to this Agreement), the number of Optioned Shares subject to the Option shall be adjusted so that, after such issuance, it equals at least 19.9% of the Optioned Share number of shares of Company Common Stock then issued and outstanding (without considering any shares subject to or issued pursuant to the date of Parent's receipt of such consideration from such Third Party Purchaser, to the Exercise PriceOption).
Appears in 1 contract
Samples: Stock Option Agreement (Qlogic Corp)
