Treatment of Equity Awards. (a) Effective as of the Effective Time, each DISH Option that is outstanding and unexercised, whether vested or unvested, immediately prior to the Effective Time shall cease to represent a right to acquire shares of DISH Common Stock and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments to the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Common Stock subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code. (b) Effective as of the Effective Time, each DISH RSU Award that is outstanding as of immediately prior to the Effective Time shall be converted automatically into an EchoStar RSU Award on substantially the same terms and conditions (including applicable vesting provisions (including, if applicable, vesting acceleration)) that applied to the corresponding DISH RSU Award as of immediately prior to the Effective Time, except that the number of shares of EchoStar Class A Common Stock subject to each such EchoStar RSU Award shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of shares. (c) As soon as practicable following the Effective Time, but in no event later than five (5) Business Days following the Effective Time, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstanding. (d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective Time, (iv) each purchase right issued pursuant to the DISH ESPP shall be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Common Stock so purchased shall be treated the same as shares of DISH Common Stock in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter. (e) Prior to the Effective Time, the DISH Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the DISH Options, DISH RSU Awards and DISH ESPP as contemplated by this Section 1.7. (f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Time, the EchoStar Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (EchoStar CORP), Agreement and Plan of Merger (DISH Network CORP)
Treatment of Equity Awards. (a) Effective as As of the Effective Time, each DISH Option that is outstanding and unexercised, whether vested or unvested, immediately prior to the Effective Time shall cease to represent a right to acquire shares of DISH Common Stock and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments to the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Common Stock subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined in a manner consistent with the requirements of Section 409A virtue of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code.
(b) Effective as occurrence of the Effective TimeTime and without any action on the part of the holder thereof, each DISH Company RSU Award that is outstanding as of immediately prior to the Effective Time shall be converted automatically into an EchoStar award (an “Assumed RSU Award”), with respect to a number of shares of Buyer Common Stock equal to the product obtained by multiplying (i) the applicable number of shares of Company Common Stock subject to such Company RSU Award on substantially immediately prior to the Effective Time by (ii) the Exchange Ratio. For each holder of a Company RSU Award, any fractional shares resulting from the conversion of his or her Company RSU Awards shall be rounded to the nearest whole share. Except as otherwise provided in this Section 2.3(a), each Assumed RSU Award shall continue to have, and shall be subject to, the same terms and conditions (including applicable time vesting provisions (includingconditions and, if applicable, any accelerated vesting acceleration)in connection with a termination of service) that applied to the corresponding DISH underlying Company RSU Award as of immediately prior to the Effective Time, except that Buyer (x) may modify terms rendered inoperative by reason of the transactions contemplated by this Agreement or for such other immaterial administrative or ministerial changes as in the reasonable and good faith determination of the Buyer are appropriate to effectuate the administration of the Assumed RSU Award, and (y) except as provided in Section 2.3(d), may elect to settle the Assumed RSU Award upon vesting in either Buyer Common Stock or cash (the amount of which shall be equal to the fair market value of the Buyer Common Stock otherwise deliverable in settlement of the Assumed RSU Award).
(b) The Company shall take all necessary and appropriate actions so that, prior to the Effective Time, each then outstanding Company PSU Award shall be terminated and vested in accordance with its terms with the number of shares of EchoStar Class A Company Common Stock subject deliverable with respect to each a Company PSU Award in connection with such EchoStar RSU Award shall be termination and vesting determined by multiplying: the Compensation Committee of the Company Board pursuant to the terms of the applicable Company PSU Award, as such terms are in effect on the date hereof. The Company (Aincluding the Company Board and any delegate thereof) shall not use discretion to increase the amount of consideration payable with respect to any Company PSU Award in connection with such termination and vesting, and, except as provided in Section 2.3(d) the Buyer may elect to settle the Company PSU Award in Buyer Common Stock (determined using the vesting determination described above and converted into a number of shares of DISH Buyer Common Stock subject in the same manner described in Section 2.3(a)) or in cash (the amount of which shall be equal to the corresponding DISH RSU fair market value of the Buyer Common Stock otherwise deliverable in settlement of the Company PSU Award immediately prior pursuant to this Section 2.3(b) if the Effective Time; by (B) Buyer had instead elected to settle the Exchange RatioCompany PSU Award in Buyer Common Stock). The Company shall provide the Buyer with an opportunity to review and comment upon any determination of the amount payable in respect of a Company PSU Award in connection with the provisions of this Section 2.3(b), and rounding such product including calculations with respect to the nearest whole number of sharestotal shareholder return, as applicable.
(c) As The Company shall take all necessary and appropriate actions so that prior to the Effective Time each Company Restricted Stock Award granted to a Company non-employee director shall vest. Shares of Company Common Stock attributable to such Company Restricted Awards shall be treated in the manner set forth in Section 2.1(b) upon the Effective Time.
(d) All payments in settlement of (i) any Assumed RSU Awards that vest immediately prior to or upon the occurrence of the Closing and (ii) the Company PSU Awards pursuant to Section 2.3(b) shall, in each case, be made at or as soon as practicable following the Effective Time, but in no event later more than five (5) Business Days following the Effective Time, EchoStar and shall file be subject to any applicable withholding; provided, however, that to the extent any payment in settlement of all or any portion of a registration statement Company PSU Award or Assumed RSU Award cannot be paid during such period without causing the recipient to incur a penalty tax under Section 409A of the Securities Act on Form S-8Code, Form S-3 or another appropriate form relating to shares of EchoStar then such payment shall be made solely in Buyer Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstanding.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective Time, (iv) each purchase right issued pursuant to the DISH ESPP shall be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Common Stock so purchased shall be treated the same as shares of DISH Common Stock paid in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective Time, the DISH Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment 409A of the DISH Options, DISH RSU Awards Code and DISH ESPP as contemplated by this Section 1.7applicable guidance thereunder.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Time, the EchoStar Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f).
Appears in 2 contracts
Samples: Merger Agreement (Montage Resources Corp), Merger Agreement (Southwestern Energy Co)
Treatment of Equity Awards. (a) Effective as of the Effective Time, each DISH Company Option held by an individual who, as of immediately after the Effective Time, constitutes an “employee” of Parent within the meaning of Form S-8 that is outstanding and unexercised, whether vested or unvested, immediately prior to the Effective Time (each, an “Assumed Company Option”) shall cease to represent a right to acquire shares of DISH Company Common Stock and shall be assumed by Parent and converted automatically into an EchoStar a Parent Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments to the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH such Assumed Company Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Parent Common Stock subject to each EchoStar Assumed Company Option shall be determined by multiplying: (A) the number of shares of DISH Company Common Stock subject to the corresponding DISH such Assumed Company Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of sharesshare; and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Assumed Company Option shall be determined by dividing: (A) the per share exercise price for of the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Assumed Company Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided and (iii) all references to the “Company” in the applicable Company Equity Plans and the Company Option agreements will be references to Parent.
(b) Effective as of the Effective Time, each award of Company RSUs (i) that is held by an individual who, as of immediately after the exercise price Effective Time, constitutes an “employee” of Parent within the meaning of Form S-8, (ii) that is outstanding immediately prior to the Effective Time and (iii) that vests solely on the basis of continued employment or service (as opposed to performance vesting) (each, an “Assumed Company RSU Award”) shall cease to represent a right to acquire shares of Company Common Stock upon vesting and shall be assumed by Parent and converted automatically into a restricted stock unit award with respect to shares of Parent Common Stock and shall otherwise remain subject to the same vesting, settlement and other terms and conditions that applied to the underlying Company RSU immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Parent Common Stock purchasable pursuant subject to the EchoStar Options into which DISH Options are converted each such Assumed Company RSU Award shall be determined by multiplying: (A) the number of shares of Company Common Stock subject to such Assumed Company RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, rounded down to the nearest whole number; and (ii) all references to the “Company” in the applicable Company Equity Plans and the Assumed Company RSU Award agreements will be references to Parent.
(c) Prior to the Effective Time, the Company shall take all corporate action necessary to provide that (i) each Company Option that does not constitute an Assumed Company Option shall accelerate in full and be terminated for no consideration as of immediately prior to the Effective Time to the extent not exercised prior to such time, (ii) each Company RSU (other than a Deferred RSU) that does not constitute an Assumed Company RSU Award shall accelerate in full and be settled in shares of Company Common Stock as of immediately prior to the Effective Time, (iii) each Deferred Time-Based RSU shall accelerate in full as of immediately prior to the Effective Time and be terminated and settled in shares of Company Common Stock as of immediately prior to the Effective Time in a manner intended to satisfy the plan termination requirements of Treasury Regulation 1.409A-3(j)(4)(ix)(B), and (iv) each Deferred Performance-Based RSU shall, to the extent such Deferred Performance-Based RSU would be vested immediately prior to the Effective Time in accordance with its terms as a result of the consummation of the transactions contemplated by this Agreement, be terminated and settled in shares of Company Common Stock as of immediately prior to the Effective Time in a manner intended to satisfy the plan termination requirements of Treasury Regulation 1.409A-3(j)(4)(ix)(B). With respect to the Deferred Performance-Based RSUs, (x) performance conditions for any performance periods of the Company that have ended before the Effective Time will conclusively be based on the actual performance achieved, and (y) in the case of a performance period in which the last day occurs after the Effective Time, the Compensation Committee of the Company Board shall, in good faith, determine the portion of the award that shall become vested as of immediately prior to the Effective Time based on the relevant terms and conditions of the applicable award agreement, and any unvested portion shall be cancelled for no consideration as of the Effective Time. The Company shall take all actions necessary to ensure that the termination and settlement of the Deferred RSUs in accordance with this Section 1.7(c) satisfies the plan termination requirements of Treasury Regulation 1.409A-3(j)(4)(ix)(B). Notwithstanding anything herein to the contrary, with respect to any Deferred RSU that Parent determines prior to the Effective Time is not eligible to be terminated in accordance with Treasury Regulation Section 1.409A-3(j)(4)(ix)(B), such Deferred RSU will be treated as an Assumed Company RSU Award hereunder and payment of the underlying shares of Parent Common Stock issuable under such award following the Effective Time will be made at the earliest time permitted under the applicable Company Equity Plan that will not trigger a Tax or penalty under Section 409A of the Code.
(d) Notwithstanding the foregoing, the conversions described in this Section 1.7 will be subject to such modifications, if any, as are required to cause the conversion to be made in a manner consistent with the requirements of Section 409A of the Code; provided further thatCode and, in the case of any DISH Company Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Parent Common Stock purchasable pursuant to the EchoStar Option into which issuable upon exercise of such DISH Option is converted option shall be determined subject to such adjustments as are necessary in accordance with the foregoing in a manner that satisfies order to satisfy the requirements of Section 424(a) of the Code.
(b) Effective as of . Following the Effective Time, (i) Parent shall assume sponsorship of the Company Equity Plans; provided that references to the Company therein shall be deemed references to Parent and references to Company Common Stock therein shall be deemed references to Parent Common Stock, (ii) each DISH RSU Company Equity Award that is outstanding as of immediately prior to the Effective Time has been converted in accordance with this Section 1.7 shall be converted automatically into an EchoStar RSU Award on substantially subject to the same terms and conditions (including applicable vesting provisions (conditions, including, if applicablewithout limitation, any vesting acceleration)) that conditions, as had applied to the corresponding DISH RSU Company Equity Award as of immediately prior to the Effective Time, except that for such terms rendered inoperative by reason of the number of shares of EchoStar Class A Common Stock transactions contemplated by this Agreement, subject to each such EchoStar RSU Award shall be adjustments as reasonably determined by multiplying: Parent to be necessary or appropriate to give effect to the conversion or the transactions contemplated by this Agreement, and (Aiii) the number of shares of DISH Parent Common Stock subject available for future issuance under the Company Equity Plans (which shares Parent may instead cause to make available for issuance under the corresponding DISH RSU Award Parent Equity Plan) shall be determined by adjusting the number of shares of Company Common Stock available for future issuance of awards under the Company Equity Plans immediately prior to the Effective Time; by (B) Time in accordance with the Exchange RatioRatio (provided that, and rounding such product to the nearest whole number of shares.
(c) As soon as practicable following the Effective Time, but awards may only be granted with respect to such shares described in this clause (iii) to individuals who were not employees or consultants of Parent or its Subsidiaries or members of the Parent Board prior to the Effective Time). Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery with respect to all Assumed Company Options and Assumed Company RSU Awards. Parent shall file and cause to be effective as of no event later than five two (52) Business Days following the Effective Time, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 S-8 or another other appropriate form under the Securities Act, relating to shares of EchoStar Parent Common Stock issuable with respect to all EchoStar Assumed Company Options and EchoStar Assumed Company RSU Awards delivered pursuant to this Section 1.7Awards, and Parent shall use its reasonable best efforts to cause such registration statement to remain in effect effective for so long as such EchoStar Assumed Company Options and EchoStar Assumed Company RSU Awards remain outstanding.
(de) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, As soon as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through practicable after the Effective Time, (iv) each purchase right issued pursuant Parent shall deliver to the DISH ESPP shall be fully exercised not later than five business days prior to holders of the Effective Time, in which case any shares Assumed Company Options and Assumed Company RSU Awards notices setting forth the effect of DISH Common Stock so purchased shall be treated the same as shares Merger on such holders’ rights and describing the treatment of DISH Common Stock such awards in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective Time, the DISH Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the DISH Options, DISH RSU Awards and DISH ESPP as contemplated by this Section 1.7.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Time, the EchoStar Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f).
Appears in 2 contracts
Samples: Merger Agreement (Viasat Inc), Merger Agreement (RigNet, Inc.)
Treatment of Equity Awards. (a) Effective as Each option that represents the right to acquire shares of the Effective TimeCompany Common Stock issued pursuant to any Company Stock Plan (each, each DISH Option a “Company Option”) that is outstanding and unexercised, whether vested or unvested, immediately prior to the Effective Time (whether or not then vested or exercisable) shall cease to represent a at the Effective Time automatically (and without any further action being required on the part of the holders thereof) be canceled and terminated at the Effective Time in exchange for the right to acquire shares of DISH Common Stock receive an amount in cash (without interest, and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments applicable withholding in accordance with Section 2.3(g)) equal to the extent necessary to reflect product of (x) the consummation total number of the Merger and the other transactions contemplated by this Agreement, shares of Company Common Stock subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Company Option immediately prior to the Effective Time, except that: multiplied by (iy) the number excess, if any, of shares the Merger Consideration over the exercise price per share of EchoStar Class A Company Common Stock subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH such Company Option immediately prior to the Effective Time; by (B) provided, that if the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the exercise price per share exercise price for of any such Company Option is equal to or greater than the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Merger Consideration, such Company Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined canceled without any cash payment being made in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Coderespect thereof.
(b) Effective as Each share of the Effective TimeCompany Common Stock issued pursuant to any Company Stock Plan that is subject to specified vesting criteria (each, each DISH RSU Award a share of “Restricted Stock”) and that is outstanding as of immediately prior to the Effective Time shall shall, at the Effective Time, become fully vested and be converted automatically into an EchoStar RSU Award on substantially treated in accordance with Section 2.1. In addition to any other withholding rights of the same terms and conditions Company, any withholding Taxes arising from such vesting may be withheld from the consideration otherwise payable with respect to such shares pursuant to Section 2.3(g).
(including applicable vesting provisions c) Each restricted stock unit with respect to shares of Company Common Stock (includingeach, if applicable, vesting acceleration)a “Company RSU”) that applied to the corresponding DISH RSU Award as of is outstanding immediately prior to the Effective TimeTime shall, except that the number of shares of EchoStar Class A Common Stock subject to each such EchoStar RSU Award shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of shares.
(c) As soon as practicable following at the Effective Time, but be converted into a vested right to receive cash in no event later than five an amount equal to the Merger Consideration (5) Business Days following the Effective Time, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7without interest, and subject to any withholding in accordance with Section 2.3(g)) and shall cause be paid in accordance with the award agreement governing such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstandingCompany RSU.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective Time, (iv) each purchase right issued pursuant to the DISH ESPP shall be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Common Stock so purchased shall be treated the same as shares of DISH Common Stock in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective Time, the DISH Board or the compensation committee thereof, as applicable, Company shall adopt take all resolutions as are necessary actions to authorize and approve permit the treatment of the DISH Company Options, DISH RSU Awards Restricted Stock and DISH ESPP as Company RSUs contemplated by the foregoing provisions of this Section 1.7.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not 2.5. No later than five business days prior to the Effective Time. Prior to the Effective Time, Parent shall provide, or shall cause to be provided, to the EchoStar Board or the compensation committee thereof, as applicable, shall adopt Surviving Corporation all resolutions as are funds necessary to authorize and approve fulfill the treatment of the EchoStar ESPP as contemplated by payment obligations under this Section 1.7(f)2.5. All payments required under this Section 2.5 shall be made by the Surviving Corporation to the individual recipients through its payroll processing system as soon as reasonably practicable following the Closing.
Appears in 2 contracts
Samples: Merger Agreement (Horizon Lines, Inc.), Merger Agreement (Matson, Inc.)
Treatment of Equity Awards. (a) Effective as of the Effective Time, each DISH Company Option that is outstanding and unexercised, whether vested or unvested, immediately prior to the Effective Time shall cease to represent a right to acquire shares of DISH Company Common Stock and shall be converted automatically into an EchoStar a Parent Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments to the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Company Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Parent Class A Common Stock subject to each EchoStar Parent Option shall be determined by multiplying: (A) the number of shares of DISH Company Common Stock subject to the corresponding DISH Company Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the per share exercise price for the shares of EchoStar Parent Class A Common Stock issuable upon exercise of each EchoStar Parent Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Company Common Stock otherwise purchasable pursuant to the corresponding DISH Company Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Parent Class A Common Stock purchasable pursuant to the EchoStar Parent Options into which DISH the Company Options are converted shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Company Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Parent Class A Common Stock purchasable pursuant to the EchoStar Parent Option into which such DISH Company Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code.
(b) Effective as of the Effective Time, each DISH Company RSU Award that is outstanding as of immediately prior to the Effective Time shall be treated as follows:
(i) if such Company RSU Award becomes vested upon the Effective Time pursuant to its terms, then it shall be cancelled and converted into the right to receive, within five (5) Business Days after the Effective Time, a number of fully vested shares of Parent Class A Common Stock (subject to the satisfaction of applicable Tax withholding as specified by the chief executive officer of the Company, in consultation with Parent, which may be in any manner not prohibited by the award agreement evidencing such Company RSU Award) equal to the product determined by multiplying: (A) the number of shares of Company Class A Common Stock subject to such Company RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of shares;
(ii) if such Company RSU Award is not covered by Section 1.7(b)(i), then, at the Effective Time, unless otherwise agreed to between Parent and the holder of the applicable Company RSU Award, it shall be converted automatically into an EchoStar a Parent RSU Award on substantially the same terms and conditions (including applicable vesting provisions (including, if applicable, vesting acceleration)) that applied to the corresponding DISH Company RSU Award as of immediately prior to the Effective Time, except that the number of shares of EchoStar Parent Class A Common Stock subject to each such EchoStar Parent RSU Award shall be determined by multiplying: (A) the number of shares of DISH Company Common Stock subject to the corresponding DISH Company RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of shares.
(c) As soon as practicable following the Effective Time, but in no event later than five (5) Business Days following the Effective Time, EchoStar Parent shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Parent Common Stock issuable with respect to all EchoStar Parent Options and EchoStar Parent RSU Awards delivered pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Parent Options and EchoStar Parent RSU Awards remain outstanding.
(d) DISH The Company shall take the necessary actions with respect to DISHthe Company’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH Company ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH Company ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH Company ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH Company ESPP during the period from the date hereof through the Effective Time, (iv) each purchase right issued pursuant to the DISH Company ESPP shall be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Company Common Stock so purchased shall be treated the same as shares of DISH Company Common Stock in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH Company ESPP shall terminate and no further rights shall be granted or exercised under the DISH Company ESPP thereafter.
(e) Prior to the Effective Time, the DISH Company Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the DISH Company Options, DISH Company RSU Awards and DISH the Company ESPP as contemplated by this Section 1.7.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Time, the EchoStar Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f).
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Samples: Merger Agreement (EchoStar CORP), Merger Agreement (DISH Network CORP)
Treatment of Equity Awards. (a) Effective as of the Effective Time, each DISH Option that is outstanding and unexercised, whether vested or unvested, immediately prior to the Effective Time shall cease to represent a right to acquire shares of DISH Common Stock and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments to the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Common Stock subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code.
(b) Effective as of the Effective Time, each DISH RSU Award that is outstanding as of immediately prior to the Effective Time shall be converted automatically into an EchoStar RSU Award on substantially the same terms and conditions (including applicable vesting provisions (including, if applicable, vesting acceleration)) that applied to the corresponding DISH RSU Award as of immediately prior to the Effective Time, except as set forth in Section 6.01(m) of the Company Disclosure Schedule, each Company Restricted Stock Award that is outstanding immediately prior to the Effective Time shall, automatically and without any action on behalf of the holder thereof, be fully vested, canceled and converted into the right to receive an amount in cash equal to (i) the number of shares of EchoStar Class A Company Common Stock Shares subject to such Company Restricted Stock Award immediately prior to the Effective Time multiplied by (ii) the Merger Consideration.
(b) Effective as of immediately prior to the Effective Time, each Company Performance Stock Award that is outstanding immediately prior to the Effective Time shall, automatically and without any action on behalf of the holder thereof, be treated as follows: (i) each Company Performance Stock Award (x) granted in the 2022 calendar year shall be deemed vested with respect to seventy-five and one-half percent (75.5%) of the target number of Company Common Shares subject to such Company Performance Stock Award and (y) granted in the 2023 and 2024 calendar years shall be deemed vested with respect to fifty percent (50%) of the target number of Company Common Shares subject to such Company Performance Stock Award (the portion of each such EchoStar RSU vested Company Performance Stock Award, a “Vested Company Performance Stock Award”), and each such Vested Company Performance Stock Award shall be determined by multiplying: canceled and converted into the right to receive an amount in cash equal to (A) the number of shares of DISH Company Common Stock Shares subject to the corresponding DISH RSU such Vested Company Performance Stock Award immediately prior to the Effective Time; Time multiplied by (B) the Exchange Ratio, Merger Consideration and rounding such product to the nearest whole number of shares(ii) each Company Performance Stock Award or portion thereof that is not a Vested Company Performance Stock Award shall be cancelled and forfeited for no consideration.
(c) As soon as practicable following the Effective Time, but in no event later than five (5) Business Days following the Effective Time, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstanding.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective Time, (iv) each purchase right issued pursuant to the DISH ESPP shall be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Common Stock so purchased shall be treated the same as shares of DISH Common Stock in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective Time, the DISH compensation committee of the Board of Directors (the “Compensation Committee”) or the compensation committee thereofBoard of Directors, as applicable, shall adopt all resolutions as and take any actions that are necessary to authorize and approve effectuate the treatment of the DISH Options, DISH RSU Company Restricted Stock Awards and DISH ESPP as contemplated by this Section 1.7.
the Company Performance Stock Awards (f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plantogether, as amended (the “EchoStar ESPPCompany Equity Awards”) pursuant to provide that (i) no new purchase period will be commenced under this Section 2.05. As soon as practicable following the EchoStar ESPP from August 8date hereof and in all events prior to, 2023 until the day after the Closing Dateand contingent upon, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant Time, the Company shall cause the Company Stock Plans to the EchoStar ESPP shall be fully exercised not later than five business days terminate immediately prior to the Effective Time. Prior .
(d) All payments due under this Section 2.05 shall be made at or as soon as practicable after the Effective Time (and in no event later than the next regularly scheduled payroll run of the Company or Surviving Corporation that is at least five Business Days following the Closing Date), pursuant to the Effective Time, the EchoStar Board Company’s or the compensation committee thereofSurviving Corporation’s ordinary payroll practices, as applicable, shall adopt all resolutions as are necessary and will be subject to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f)any applicable withholding.
Appears in 1 contract
Treatment of Equity Awards. (a) Effective as of At the Effective Time, except as set forth in Section 5.1(b) of the Company Disclosure Letter with respect to Company RSUs granted after the date of this Agreement, each DISH Option restricted stock unit granted pursuant to the Company Stock Plan that is outstanding and unexercisedvests based solely on continued service (each, a “Company RSU”), whether vested or unvested, immediately prior to the Effective Time shall cease to represent a right to acquire shares of DISH Common Stock and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments to the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Common Stock subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code.
(b) Effective as of the Effective Time, each DISH RSU Award that is outstanding as of immediately prior to the Effective Time shall be converted automatically into an EchoStar RSU Award on substantially canceled, and in exchange therefor, Parent shall cause the same terms and conditions (including Surviving Corporation or its applicable vesting provisions (including, if applicable, vesting acceleration)) that applied Subsidiary to the corresponding DISH RSU Award as of immediately prior to the Effective Time, except that the number of shares of EchoStar Class A Common Stock subject pay to each former holder of any such EchoStar canceled Company RSU Award shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of shares.
(c) As as soon as practicable following the Effective TimeTime an amount in cash (without interest, but in no event later than five and subject to deduction for any required withholding Tax) equal to the product of (5i) Business Days following the Merger Consideration and (ii) the number of Shares subject to such Company RSU (including, for the avoidance of doubt, any “dividend shares” accrued thereon as contemplated by the applicable award agreement governing such Company RSU).
(b) At the Effective Time, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstanding.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective Time, (iv) each purchase right issued performance share unit granted pursuant to the DISH ESPP shall be fully exercised not later than five business days Company Stock Plan (each, a “Company PSU”) that is outstanding immediately prior to the Effective Time, in which case any shares of DISH Common Stock so purchased Time shall be treated the same as shares of DISH Common Stock in accordance with Section 1.5(b)canceled, and in exchange therefor, Parent shall cause the Surviving Corporation or its applicable Subsidiary to pay to each former holder of any such canceled Company PSU as soon as practicable following the Effective Time an amount in cash (v) immediately prior towithout interest, and subject to deduction for any required withholding Tax) equal to the occurrence ofproduct of (i) the Merger Consideration and (ii) the number of Shares to which the holder of such Company PSU would be entitled upon settlement thereof assuming satisfaction of the associated performance goal at the applicable PSU Performance Level (including, for the Effective Timeavoidance of doubt, any “dividend shares” accrued thereon as contemplated by the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafterapplicable award agreement governing such Company PSU).
(ec) Prior to the Effective Time, the DISH Company, through the Company Board or the compensation an appropriate committee thereof, as applicable, shall adopt all such resolutions and cause such other actions to be taken as are necessary may be required in its reasonable discretion to authorize and approve (i) effectuate the treatment of the DISH Options, DISH RSU Awards and DISH ESPP as actions contemplated by this Section 1.7.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date2.2, (ii) there will be ensure that after the Effective Time no increase holder of any Company RSU or Company PSU shall have any right thereunder to acquire any securities of the Company, the Surviving Corporation or Parent, or to receive any payment or benefit with respect thereto, except as provided in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8this Section 2.2, 2023, and (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8ensure that, 2023 through the Effective Time on and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to after the Effective Time, no further Company RSU or Company PSU or other rights with respect to Shares shall be granted or outstanding under the EchoStar Board Company Stock Plan or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f)otherwise.
Appears in 1 contract
Treatment of Equity Awards. (a) Effective as of Unless otherwise agreed to by the Parties, at the Acquisition Merger Effective Time, by virtue of the Acquisition Merger, the Company RSUs shall be treated as follows:
(i) At the Acquisition Merger Effective Time, by virtue of the Acquisition Merger, and without any action of any Party or any other Person (but subject to, in the case of the Company, Section 1.4(c)), each DISH Option that is outstanding and unexercised, Company RSU (whether vested or unvested) shall cease to represent the right to acquire Company Class C Common Shares and shall be canceled in exchange for a right to acquire a number of Pubco Class A Ordinary Shares under the Pubco Equity Plan (each, a “Rollover RSU”) equal to the product (rounded down to the nearest whole share) of (A) the number of Company Class C Common Shares subject to such Company RSU as of immediately prior to the Acquisition Merger Effective Time shall cease to represent a right to acquire shares of DISH Common Stock Time, and (B) the Exchange Ratio.
(ii) Each Rollover RSU shall be converted automatically into an EchoStar Option on substantially subject to the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments vesting acceleration, expiration and forfeiture provisions) that applied to the extent necessary corresponding Company RSU immediately prior to reflect the consummation Acquisition Merger Effective Time, except for (A) terms (x) rendered inoperative by reason of the Merger and the other transactions contemplated by this Agreement, subject Agreement or (y) to the terms set forth on Section 1.7(aextent they conflict with the Pubco Equity Plan and (B) such other immaterial administrative or ministerial changes as the Post-Closing Pubco Board (or the compensation committee thereof) may determine in good faith are appropriate to effectuate the administration of the DISH Disclosure LetterRollover RSU. Notwithstanding the foregoing, and vesting acceleration)such conversion, exercise and expiration provisions) as applied to the corresponding DISH Option immediately prior to the Effective Time, except that: (i) including the number of shares of EchoStar Pubco Class A Common Stock Ordinary Shares subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding any such product down to the nearest whole number of shares; and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price Rollover RSU and the number terms and conditions of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall any Rollover RSU, will be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that.
(b) Unless otherwise agreed to by the Parties, at the Acquisition Merger Effective Time, by virtue of the Acquisition Merger, the Company Options shall be treated as follows:
(i) At the Acquisition Merger Effective Time, by virtue of the Acquisition Merger, and without any action of any Party or any other Person (but subject to, in the case of any DISH the Company, Section 1.4(c)), each Company Option (whether vested or unvested) shall cease to which Section 422 represent the right to purchase Company Class C Common Shares and shall be canceled in exchange for an option to purchase a number of Pubco Class A Ordinary Shares under the Code appliesPubco Equity Plan (each, a “Rollover Option”) equal to the exercise price and product (rounded down to the nearest whole share) of (A) the number of shares of EchoStar Company Class A C Common Stock purchasable pursuant Shares subject to the EchoStar such Company Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code.
(b) Effective as of the Effective Time, each DISH RSU Award that is outstanding as of immediately prior to the Acquisition Merger Effective Time Time, and (B) the Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to (x) the exercise price per share of such Company Option in effect immediately prior to the Acquisition Merger Effective Time, divided by (y) the Exchange Ratio (the exercise price per share, as so determined, being rounded up to the nearest full cent).
(ii) Each Rollover Option shall be converted automatically into an EchoStar RSU Award on substantially subject to the same terms and conditions (including applicable vesting provisions (including, if applicablevesting, vesting acceleration), expiration and forfeiture provisions) that applied to the corresponding DISH RSU Award as of Company Option immediately prior to the Acquisition Merger Effective Time, except that for (A) terms (x) rendered inoperative by reason of the transactions contemplated by this Agreement or (y) to the extent they conflict with the Pubco Equity Plan and (B) such other immaterial administrative or ministerial changes as the Post-Closing Pubco Board (or the compensation committee thereof) may determine in good faith are appropriate to effectuate the administration of the Rollover Options. Notwithstanding the foregoing, such conversion, including the exercise price, the number of shares of EchoStar Pubco Class A Common Stock Ordinary Shares subject to each any such EchoStar RSU Award shall Rollover Option and the terms and conditions of the exercise of any Rollover Option, will be determined by multiplying: (A) in a manner consistent with the number requirements of shares Section 409A of DISH Common Stock subject the Code, to the corresponding DISH RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of sharesextent applicable.
(c) As soon as practicable following At the Acquisition Merger Effective Time, but by virtue of the Acquisition Merger, the Company Equity Plan shall terminate and all Company Options and Company RSUs (in each case, whether vested or unvested) shall no event later than five (5) Business Days following the Effective Timelonger be outstanding and shall automatically be canceled and retired and shall cease to exist, EchoStar and each holder thereof shall file a registration statement cease to have any rights with respect thereto or under the Securities Act on Form S-8Company Equity Plan, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to except as otherwise expressly provided for in this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstanding1.4.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective Time, (iv) each purchase right issued pursuant to the DISH ESPP shall be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Common Stock so purchased shall be treated the same as shares of DISH Common Stock in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective TimeAcquisition Closing, the DISH Board Company shall take, or cause to be taken, all necessary or appropriate actions under the compensation committee thereofCompany Equity Plan (and the underlying grant, as applicable, shall adopt all resolutions as are necessary award or similar agreements) or otherwise to authorize and approve give effect to the treatment provisions of the DISH Options, DISH RSU Awards and DISH ESPP as contemplated by this Section 1.71.4.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Time, the EchoStar Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f).
Appears in 1 contract
Samples: Business Combination Agreement (Far Peak Acquisition Corp)
Treatment of Equity Awards. (a) Effective Executive’s termination of employment on the Separation Date will be treated as a termination without Cause (or a termination of employment due to death, if applicable) for purposes of the Company’s Amended and Restated Long-Term Incentive Plan (the “LTIP”) and the award agreements thereunder governing Executive’s outstanding Company equity awards as of the Effective Time, each DISH Option that is outstanding and unexercised, whether vested or unvested, immediately prior to the Effective Time shall cease to represent a right to acquire shares of DISH Common Stock and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments to the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Common Stock subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in Separation Date. In accordance with the foregoing terms of such award agreements, Executive’s awards will vest on a prorated basis, calculated as set forth in the applicable award agreement (provided that Executive’s termination of employment due to Disability shall be treated for purposes of this Section 3(a) in the same manner as a manner that satisfies termination without Cause for such purpose), through the requirements of Section 424(a) of the CodeSeparation Date.
(b) Effective as The portion of such awards that does not become vested at the Separation Date (collectively, the “Continuing Awards”), will:
(i) in the case of Executive’s termination of employment due to Disability, remain outstanding and continue to vest (in the case of performance-based restricted stock unit awards (“PRSUs”), based on the actual level of achievement of the Effective Time, each DISH RSU Award that is outstanding as of immediately prior to applicable performance goals) and be paid on the Effective Time shall be converted automatically into an EchoStar RSU Award on substantially the same terms and conditions regularly scheduled dates (including applicable vesting provisions (including, if applicable, vesting acceleration)) that applied to the corresponding DISH RSU Award as of immediately prior to the Effective Time, except it being understood that the number of shares underlying each Continuing Award of EchoStar Class A Common Stock subject to time-based restricted stock units (“TRSUs”) vesting on each such EchoStar RSU Award regularly scheduled date shall be determined by multiplying: (A) equal the number of shares of DISH Common Stock subject originally scheduled to vest on such date or, if fewer, the corresponding DISH RSU Award immediately total number shares remaining under such TRSU award after taking into account the prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of shares.prorated vesting),
(c) As soon as practicable following the Effective Time, but in no event later than five (5) Business Days following the Effective Time, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstanding.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount case of participants’ payroll deduction elections under Executive’s death, vest (with the DISH ESPP during performance goals applicable to PRSUs deemed to be achieved at the current purchase period from those in effect as of the date hereoftarget level) and be delivered within ten (10) business days thereafter, or
(iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective Timecase of Executive’s termination without Cause, (iv) each purchase right issued pursuant remain outstanding and eligible to the DISH ESPP shall be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Common Stock so purchased shall be treated the same as shares of DISH Common Stock vest in accordance with Section 1.5(b)4 below. Notwithstanding anything to the contrary, and upon the occurrence (v) immediately prior to, and on or following the Separation Date) of a Change of Control (as defined in the LTIP), the Dollar Amount (as defined in the applicable award agreements) payable in respect of each of Executive’s then outstanding Company equity awards will immediately vest and, subject to Section 13.4 of the occurrence ofLTIP, be paid to Executive within ten (10) business days following the Change of Control. In the event of any conflict between the terms of this Section 3 and the terms of any award agreement applicable to Executive’s Company equity awards, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective Time, the DISH Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment terms of the DISH Options, DISH RSU Awards and DISH ESPP as contemplated by this Section 1.73 shall control.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Time, the EchoStar Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f).
Appears in 1 contract
Samples: Separation and Consulting Agreement (Convergys Corp)
Treatment of Equity Awards. (ai) Effective as Each option that represents the right to acquire shares of Company Common Stock issued pursuant to the Effective TimeCompany’s 2016 Long-Term Incentive Plan ( the “Company Stock Plan”) (each, each DISH Option a “Company Option”) that is outstanding and unexercised, whether vested or unvested, immediately prior to the Effective Time (whether or not then vested or exercisable) shall cease to represent a right at the Effective Time automatically (and without any further action being required on the part of the holders thereof) be converted into an option to acquire the same number of shares of DISH Holdco Common Stock at the same price per share of Holdco Common Stock and shall be converted automatically into an EchoStar Option on substantially subject to the same terms and conditions (conditions, including applicable vesting (includingand exercisability terms, if applicable, any performance-based vesting, subject to any adjustments to as the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Common Stock subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and Company Option.
(ii) the per Each share exercise price for the shares of EchoStar Class A Company Common Stock issuable upon exercise of each EchoStar Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable issued pursuant to the corresponding DISH Option immediately prior Company Stock Plan that is subject to the Effective Time; by specified vesting criteria (Beach, a share of “Restricted Stock”) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code.
(b) Effective as of the Effective Time, each DISH RSU Award that is outstanding as of immediately prior to the Effective Time shall shall, at the Effective Time, be converted into a share of Holdco Common Stock subject to the same specified vesting criteria as the Restricted Stock.
(iii) Each restricted stock unit with respect to shares of Company Common Stock issuable pursuant to the Company Stock Plan (each, a “Company RSU”) that is outstanding immediately prior to the Effective Time shall, at the Effective Time, be converted into a right to receive the same number of shares of Holdco Common Stock and subject to the same terms and conditions, including vesting terms, as the Company RSU.
(iv) Each option that represents the right to acquire shares of Company Common Stock issued pursuant to the Company’s Employee Stock Purchase Plan (the “ESPP”) (each, a “Company ESPP Purchase Right”) that is outstanding immediately prior to the Effective Time (whether or not then vested or exercisable) shall at the Effective Time automatically (and without any further action being required on the part of the holders thereof) be converted into an EchoStar RSU Award on substantially option to acquire the same number of shares of Holdco Common Stock at the same price per share of Holdco Common Stock and subject to the same terms and conditions (including applicable vesting provisions (including, if applicable, vesting acceleration)) that applied to as the corresponding DISH RSU Award as of immediately prior to the Effective Time, except that the number of shares of EchoStar Class A Common Stock subject to each such EchoStar RSU Award shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of sharesCompany ESPP Purchase Right.
(c) As soon as practicable following the Effective Time, but in no event later than five (5) Business Days following the Effective Time, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstanding.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective Time, (iv) each purchase right issued pursuant to the DISH ESPP shall be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Common Stock so purchased shall be treated the same as shares of DISH Common Stock in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective Time, the DISH Board or the compensation committee thereof, as applicable, Company shall adopt take all resolutions as are necessary actions to authorize and approve permit the treatment of the DISH Company Options, DISH RSU Awards Restricted Stock, Company RSUs and DISH Company ESPP as Purchase Rights contemplated by the foregoing provisions of this Section 1.78(e).
(fvi) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to At the Effective Time, Holdco shall assume, upon the EchoStar Board closing of the Merger without the need for any further action by any person, all agreements and any forms, programs and other documents setting forth the terms of a Company Option, Restricted Stock, Company RSU or Company ESPP Purchase Right, and all references in any such agreement, form, program or other document to Company shall then mean Holdco.
(vii) At the Effective Time, Holdco shall assume, upon the closing of the Merger without the need for any further action by any person, the Company Stock Plan and the Company ESPP and shall at and after the Effective Time, sponsor, maintain and administer the Company Stock Plan and the Company ESPP in accordance with their terms, except that all references in either the Company Stock Plan or the compensation committee thereof, as applicable, ESPP to the Company shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f)then mean Holdco.
Appears in 1 contract
Samples: Merger Agreement (Welltower Inc.)
Treatment of Equity Awards. (a) Effective as of Prior to the Effective Time, each DISH Option the Company Board (or, if appropriate, any duly authorized committee administering the Company Equity Plans) shall adopt resolutions (which resolutions shall be subject to the prior review and approval of Purchasers, which approval shall not be unreasonably withheld, conditioned or delayed) providing that, effective upon the Effective Time, subject to Section 3.06:
(i) Each Company RSA that is outstanding and unexercisedimmediately prior to the Effective Time, whether vested or unvested, shall become fully vested and shall automatically be converted into the right to receive the Merger Consideration in accordance with Section 2.05(b).
(ii) Each Company RSU that is outstanding immediately prior to the Effective Time shall cease be cancelled and exchanged for the right of each holder of such Company RSU to represent a right receive an amount in cash, equal to acquire shares the sum of DISH (A) the product of (x) the Merger Consideration multiplied by (y) the total number of Common Stock and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, Shares subject to such award of Company RSUs, plus (B) the aggregate sum of any adjustments to cash dividend equivalents in respect of such Company RSU (the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration“Restricted Stock Unit Consideration”), exercise and expiration provisions) as applied with payment of such Restricted Stock Unit Consideration to be made in accordance with the corresponding DISH Option vesting schedule applicable to such Company RSU immediately prior to the Effective Time; provided, except that: (i) that such holder remains employed by, or in the number of shares of EchoStar Class A Common Stock service of, Purchaser, the Surviving Corporation or their respective Subsidiaries on each applicable vesting date, subject to each EchoStar Option the terms and conditions of the applicable Company Equity Plan and award agreements; provided, further, that with respect to any such Company RSU that constitutes nonqualified deferred compensation subject to Section 409A of the Code, such payment(s) shall be determined by multiplying: made at the earliest time permitted that will not trigger a Tax or penalty under Section 409A of the Code.
(iii) Each Company Stock Option that is outstanding immediately prior to the Effective Time shall, whether vested or unvested, be deemed to be fully vested and shall be cancelled and converted into the right to receive a lump-sum amount in cash, equal to the product of (A) the excess, if any, of (1) the Merger Consideration, over (2) the per share exercise price of such Company Stock Option, multiplied by (B) the total number of shares of DISH Common Stock Shares subject to the corresponding DISH such Company Stock Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the per share provided that any Company Stock Option with an exercise price for per Common Share that is equal to or greater than the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Option Merger Consideration shall be determined by dividing: (A) the per share exercise price cancelled for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Codeno consideration.
(biv) Effective as of the Effective Time, each DISH RSU Award Each Company Surplus Unit that is outstanding as of immediately prior to the Effective Time shall not accelerate or vest as of the Effective Time and shall continue to be converted automatically into an EchoStar RSU Award on substantially subject to the same terms and conditions (including applicable vesting provisions (including, if applicable, vesting acceleration)) that as had applied to the corresponding DISH RSU Award as of immediately prior to the Effective Time, except that the number of shares of EchoStar Class A Common Stock subject to each such EchoStar RSU Award shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of shares.
(cb) As soon Except as otherwise required under the terms of the applicable award agreement or as necessary to avoid the imposition of any additional Taxes or penalties with respect to awards under the Company Equity Plans pursuant to Section 409A of the Code, Purchasers shall, or shall cause Surviving Corporation to, pay in cash through applicable payroll systems all amounts payable pursuant to Section 2.07(a)(i) and (iii) as promptly as practicable following the Effective Time, but in no event later than the first regularly scheduled payroll date that occurs at least five (5) Business Days following the Effective Time; provided, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7, and shall cause that any such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstanding.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective Time, (iv) each purchase right issued pursuant to the DISH ESPP amounts shall be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Common Stock so purchased shall be treated the same as shares of DISH Common Stock in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafterpaid without interest.
(e) Prior to the Effective Time, the DISH Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the DISH Options, DISH RSU Awards and DISH ESPP as contemplated by this Section 1.7.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Time, the EchoStar Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f).
Appears in 1 contract
Treatment of Equity Awards. (a) Exhibit I hereto sets forth, for each equity award granted by the Company to Consultant that is outstanding on the Effective Date (an “Equity Award”), the number of stock units remaining subject to the award as of the Effective Time, each DISH Option that is outstanding and unexercised, whether vested or unvested, immediately prior to the Effective Time shall cease to represent a right to acquire shares of DISH Common Stock and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions Date (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments to the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Common Stock subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of performance-based restricted stock units, at the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Codeapplicable “target” level).
(b) Effective In accordance with the existing terms of such awards, the Equity Awards will continue to vest during the Term. In accordance with the existing terms of such awards, the termination of employment/service rules applicable to the Equity Awards will apply when the Term ends. However, as to any Equity Awards granted after 2016, if Consultant is a member of the Effective TimeBoard at the time the Term ends, each DISH RSU Award and Consultant continues to serve on the Board following the end of the Term, in accordance with the existing terms of such awards the termination of employment/service rules applicable to those awards will apply when Executive’s service as a member of the Board ends. For clarity, as to any such award that is outstanding as of immediately prior to the Effective Time shall be converted automatically into an EchoStar RSU Award on substantially the same terms and conditions (including applicable vesting provisions (including, if applicable, vesting acceleration)) that applied to the corresponding DISH RSU Award as of immediately prior to the Effective Time, except that the number of shares of EchoStar Class A Common Stock was granted subject to each such EchoStar RSU performance-based vesting conditions, the applicable performance-based vesting conditions shall continue to apply. The Compensation Committee of the Board will determine the vesting level of any Equity Award shall be determined by multiplying: (A) with performance-based vesting conditions not later than the number March 31 of shares of DISH Common Stock subject to the corresponding DISH RSU Award calendar year immediately prior to following the Effective Time; by (B) calendar year in which the Exchange Ratio, and rounding such product to the nearest whole number of sharesapplicable performance period ends.
(c) As soon as practicable following If a Change of Control of the Effective Time, but in no event later than five (5) Business Days following the Effective Time, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstanding.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP Company occurs during the current purchase period from those in effect as of the date hereofTerm, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through the Effective TimeConsultant’s Equity Awards, (iv) each purchase right issued pursuant to the DISH ESPP shall be fully exercised not later than five business days extent outstanding and unvested immediately prior to the Effective TimeChange of Control, will fully vest upon (or, as may be necessary to give effect to the acceleration, immediately prior to) the Change of Control and, in which case such circumstances: (1) any shares performance-based vesting requirements applicable to such portion of DISH Common Stock so purchased such Equity Awards as to any performance period that has not ended prior to the date of such Change of Control shall be treated deemed satisfied at the same as shares applicable target level of DISH Common Stock performance; and (2) the portion of such Equity Awards that becomes vested in connection with such Change of Control shall be settled in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective Time, the DISH Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment terms of the DISH Options, DISH RSU Awards and DISH ESPP applicable award upon or as contemplated by this Section 1.7soon as practical after such Change of Control.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Time, the EchoStar Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f).
Appears in 1 contract
Treatment of Equity Awards. (a) At the Effective Time, each award of, or with respect to, Company Common Stock that is subject to vesting or other forfeiture conditions (including any restricted stock unit awards but other than a Company Option) (each, a “Company RSA”) that is outstanding and unvested under a Company Stock Plan as of immediately prior to the Effective Time shall, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of such Company RSA, become fully vested and shall be automatically canceled and converted into the right of the holder thereof to receive a cash payment, without interest, in an amount equal to the product of (i) the Merger Consideration, multiplied by (ii) the number of shares of Company Common Stock underlying such Company RSA (and then adding, if applicable, the value of any dividends accrued with respect to such Company RSA as of the Effective Time). With respect to each Company RSA for which the number of shares of Company Common Stock deliverable under such award is determined based on the satisfaction of performance conditions (each, a “Company PSA”), such performance conditions shall be deemed to have been earned at the greater of (A) the target amount under the terms of the award agreement relating to such award and (B) the amount reasonably projected to be earned under the terms of the award agreement based on performance achievement through the Effective Time.
(b) At the Effective Time, each DISH Option that is outstanding and unexercisedoption to purchase Company Common Stock granted under any Company Stock Plan, whether vested or unvested, immediately prior to the Effective Time shall cease to represent a right to acquire shares of DISH Common Stock and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions (including applicable vesting (including, if applicable, any performance-based vesting, subject to any adjustments to the extent necessary to reflect the consummation of the Merger and the other transactions contemplated by this Agreement, subject to the terms set forth on Section 1.7(a) of the DISH Disclosure Letter, and vesting acceleration), exercise and expiration provisions) as applied to the corresponding DISH Option immediately prior to the Effective Time, except that: (i) the number of shares of EchoStar Class A Common Stock subject to each EchoStar Option shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product down to the nearest whole number of shares; and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock issuable upon exercise of each EchoStar Option shall be determined by dividing: (A) the per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH Option immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such quotient up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Options into which DISH Options are converted shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of Section 424(a) of the Code.
(b) Effective as of the Effective Time, each DISH RSU Award that is outstanding as of immediately prior to the Effective Time (each, a “Company Option”) shall, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company or the holder of such Company Option, become fully vested and shall be automatically canceled and converted automatically into the right of the holder thereof to receive a cash payment, without interest, in an EchoStar RSU Award on substantially amount equal to the same terms and conditions product of (including applicable vesting provisions (includingi) the excess, if applicableany, vesting acceleration)of the Merger Consideration over the applicable per share exercise price of such Company Option, multiplied by (ii) that applied to the corresponding DISH RSU Award number of shares of Company Common Stock issuable in respect of such fully vested Company Option as of immediately prior to the Effective Time. For the avoidance of doubt, except each Company Option that has a per share exercise price that is equal to or greater than the Merger Consideration shall automatically be forfeited and canceled without consideration, effective as of the Effective Time.
(c) With respect to Company Options that were intended to qualify as “incentive stock options” (“Incentive Stock Options”) within the meaning of Section 422 of the Code and Treasury Regulations thereunder, at least ten (10) Business Days prior to the Closing, the Company shall without any action on the part of the holder of such Incentive Stock Option, fully vest such Incentive Stock Options and each holder of Incentive Stock Options shall be provided with written notice that such holder shall, during the period beginning on the date of such notice and ending on the business day immediately preceding the Closing Date (the “Exercise Period”), have the right to exercise such Incentive Stock Option by providing the Company with a notice of exercise and a cash amount equal to the applicable exercise price. In the event that a holder of an Incentive Stock Option elects to exercise his or her Incentive Stock Option (or any portion thereof) pursuant to this Section 2.05(c), such Incentive Stock Option (or any portion thereof) shall be deemed to be exercised as of prior to the Closing with such holder receiving in exchange a number of shares of Company Common Stock equal to the number of shares of EchoStar Class A Company Common Stock subject underlying the portion of such Incentive Stock Option that such holder elected to each exercise immediately prior to the Closing and such EchoStar RSU Award shall be determined by multiplying: (A) the number of shares of DISH Company Common Stock subject to will be treated in accordance with Section 2.02(a). Each Incentive Stock Option (or portion thereof) that is not exercised during the corresponding DISH RSU Award Exercise Period and remains outstanding immediately prior to the Effective Time; by (B) the Exchange Ratio, and rounding such product to the nearest whole number of shares.
(c) As soon as practicable following the Effective Time, but Time shall be treated in no event later than five (5) Business Days following the Effective Time, EchoStar shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable accordance with respect to all EchoStar Options and EchoStar RSU Awards delivered pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstandingSection 2.05(b).
(d) DISH All payments under Section 2.05(a) and Section 2.05(b) in respect of Company RSAs and Company Options, respectively, shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, be made at or as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect soon as of the date hereof, (iii) no individuals shall commence participation in the DISH ESPP during the period from the date hereof through practicable after the Effective Time, (iv) each purchase right issued pursuant to in accordance with the DISH ESPP Company’s or the Surviving Corporation’s ordinary payroll practices, and shall be fully exercised not later than five business days subject to any required withholding Taxes.
(e) The Company shall, prior to the Effective Time, in which case any shares take or cause to be taken all actions necessary to effectuate the provisions of DISH Common this Section 2.05 and to terminate the Company Stock so purchased shall be treated the same Plans, effective as shares of DISH Common Stock in accordance with Section 1.5(b), and (v) immediately prior to, and subject to the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective Timesuch that, the DISH Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the DISH Options, DISH RSU Awards and DISH ESPP as contemplated by this Section 1.7.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through following the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP there shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Timeno outstanding Company RSAs, the EchoStar Board Company PSAs or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(fCompany Options (whether vested or unvested).
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Samples: Merger Agreement (Lydall Inc /De/)
Treatment of Equity Awards. (a) Effective as of Immediately prior to the Effective Time, each DISH Option that is outstanding Company Stock Option, other than those options set forth in Section 2.7 of the Company Schedule, shall become fully vested and unexercisedexercisable. Prior to the Effective Time, whether vested or unvestedeach holder thereof may elect to exercise, effective as of immediately prior to the Effective Time shall cease to represent a right to acquire shares of DISH Common Stock and shall be converted automatically into an EchoStar Option on substantially the same terms and conditions (including applicable vesting (including, if applicableTime, any performance-based vestingsuch option in accordance with the terms thereof, subject to any adjustments to the extent necessary to reflect contingent on the consummation of the Merger, and shall receive, for any shares acquired in such exercise, the Per Share Merger and Consideration. If the other Merger is not completed, any Company Stock Options exercised will remain outstanding, subject to their respective original vesting schedules. No Company Stock Option set forth in Section 2.7 of the Company Schedule shall, by virtue of this Agreement, vest due to the occurrence of the transactions contemplated by this Agreement, subject to the terms and all such Company Stock Options set forth on in Section 1.7(a) 2.7 of the DISH Disclosure LetterCompany Schedule, including any such option assumed by Parent pursuant to this Section 2.7(a), shall vest in accordance with their vesting schedule. At the Effective Time, any outstanding but unexercised Company Stock Option, whether or not then exercisable, shall be assumed by Parent and converted into an option to purchase Parent Ordinary Shares in accordance with this Section 2.7(a). Each Company Stock Option so converted shall continue to have, and vesting acceleration)be subject to, exercise the same material terms and expiration provisions) conditions as applied set forth in the applicable agreement pursuant to the corresponding DISH which such Company Stock Option was granted immediately prior to the Effective Time, except that: , as of the Effective Time, (i) the number of shares of EchoStar Class A Common each Company Stock subject to each EchoStar Option shall be determined by multiplying: exercisable for that number of whole Parent Ordinary Shares equal to the product of (A) the number of shares of DISH Common Stock subject to the corresponding DISH that were issuable upon exercise of such Company Stock Option immediately prior to the Effective Time; Time multiplied by (B) the Exchange Ratio, and rounding such product rounded down to the nearest whole number of shares; Parent Ordinary Shares, and (ii) the per share exercise price for the shares of EchoStar Class A Common Stock each Parent Ordinary Share issuable upon exercise of each EchoStar Company Stock Option so converted shall be equal to the quotient determined by dividing: (A) dividing the exercise price per share exercise price for the shares of DISH Common Stock otherwise purchasable pursuant to the corresponding DISH at which such Company Stock Option was exercisable immediately prior to the Effective Time; Time by (B) the Exchange Ratio, and rounding such quotient rounded up to the nearest whole cent; provided that the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant . Notwithstanding anything herein to the EchoStar Options into which DISH Options are converted shall contrary, the foregoing conversion will be determined in a manner consistent subject to such modifications, if any, as may be necessary to comply with the requirements of Section 409A of the Code; provided further that, in the case of any DISH Option to which Section 422 of the Code applies, the exercise price and the number of shares of EchoStar Class A Common Stock purchasable pursuant to the EchoStar Option into which such DISH Option is converted shall be determined in accordance with the foregoing in a manner that satisfies the requirements of and/or Section 424(a) of the Code, as applicable. All Parent Ordinary Shares to be delivered to the holders of Company Stock Options upon exercise after the Effective Time shall be in the form of Parent Depositary Shares.
(b) Effective as of Notwithstanding anything herein to the Effective Timecontrary, each DISH RSU Award that is outstanding of Parent, Merger Sub and the Surviving Corporation shall be entitled to deduct and withhold from the amounts otherwise payable pursuant to this Section 2.7 to any holder of Company Stock Options such amounts as of immediately prior may be required to be deducted and withheld with respect to the Effective Time making of such payment under the Code, or any applicable provision of state, local or foreign Law related to Taxes, and the Surviving Corporation shall make any required filings with and payments to the appropriate Governmental Entities relating to any such deduction or withholding for Taxes. To the extent that amounts are so deducted and withheld and paid over to the appropriate Governmental Entity responsible for the Taxes, such withheld amounts shall be converted automatically into an EchoStar RSU Award on substantially the same terms and conditions (including applicable vesting provisions (including, if applicable, vesting acceleration)) that applied treated for all purposes of this Agreement as having been paid to the corresponding DISH RSU Award as holder of immediately prior to the Effective Time, except that the number Company Stock Options in respect of shares of EchoStar Class A Common Stock subject to each which such EchoStar RSU Award shall be determined by multiplying: (A) the number of shares of DISH Common Stock subject to the corresponding DISH RSU Award immediately prior to the Effective Time; by (B) the Exchange Ratio, deduction and rounding such product to the nearest whole number of shareswithholding was made.
(c) As soon as practicable following Prior to the Closing Date, and subject to the review and approval of Parent, Parent and Company will take all actions necessary to effect the transactions contemplated by this Section 2.7 under applicable Law and all such Company Stock Options, including delivering all notices required thereby. In addition, promptly after the date of this Agreement, and in any event within 15 Business Days before the Effective Time, but in no event later than five (5) Business Days following and subject to the Effective Timereview and approval of Parent, EchoStar Company shall file a registration statement under the Securities Act on Form S-8, Form S-3 or another appropriate form relating to shares of EchoStar Common Stock issuable with respect deliver notice to all EchoStar holders of Company Options and EchoStar RSU Awards delivered setting forth such holders’ rights pursuant to this Section 1.7, and shall cause such registration statement to remain in effect for so long as such EchoStar Options and EchoStar RSU Awards remain outstandingAgreement.
(d) DISH shall take the necessary actions with respect to DISH’s Amended and Restated Employee Stock Purchase Plan, as amended (the “DISH ESPP”) to provide that (i) no new purchase period will be commenced following the date hereof under the DISH ESPP, (ii) there will be no increase in the amount The Board of participants’ payroll deduction elections under the DISH ESPP during the current purchase period from those in effect as Directors of the date hereof, (iii) no individuals Company shall commence participation in terminate the DISH ESPP during the period from the date hereof through Company Option Plans at the Effective Time; provided, (iv) each purchase right issued pursuant to the DISH ESPP shall however, that such termination may be fully exercised not later than five business days prior to the Effective Time, in which case any shares of DISH Common Stock so purchased shall be treated the same as shares of DISH Common Stock in accordance with Section 1.5(b), and (v) immediately prior to, and subject to contingent upon the occurrence of, the Effective Time, the DISH ESPP shall terminate and no further rights shall be granted or exercised under the DISH ESPP thereafter.
(e) Prior to the Effective Time, the DISH Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the DISH Options, DISH RSU Awards and DISH ESPP as contemplated by this Section 1.7Closing.
(f) EchoStar shall take the necessary actions with respect to EchoStar’s 2017 Amended and Restated Employee Stock Purchase Plan, as amended (the “EchoStar ESPP”) to provide that (i) no new purchase period will be commenced under the EchoStar ESPP from August 8, 2023 until the day after the Closing Date, (ii) there will be no increase in the amount of participants’ payroll deduction elections under the EchoStar ESPP during the current purchase period from those in effect as of August 8, 2023, (iii) no individuals shall commence participation in the EchoStar ESPP during the period from August 8, 2023 through the Effective Time and (iv) each purchase right issued pursuant to the EchoStar ESPP shall be fully exercised not later than five business days prior to the Effective Time. Prior to the Effective Time, the EchoStar Board or the compensation committee thereof, as applicable, shall adopt all resolutions as are necessary to authorize and approve the treatment of the EchoStar ESPP as contemplated by this Section 1.7(f).
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