Treatment of Equity-Based Awards. (a) At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each compensatory option to purchase Shares (a “Foundation Stock Option”) outstanding under any Foundation Plan immediately prior to the Effective Time and set forth on Section 2.3(a) of the Foundation Disclosure Schedule, whether or not then vested or exercisable, shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a fully vested option to purchase shares of Surviving Corporation Common Stock (a “New Option”) having terms and conditions substantially similar to those set forth on Exhibit A, except that (A) the number of shares of Surviving Corporation Common Stock subject to each such Foundation Stock Option shall be equal to the product of (1) the number of Shares purchasable upon exercise of such Foundation Stock Option and (2) the Exchange Ratio, the product being rounded down to the next whole share, and (B) the exercise price per share of Surviving Corporation Common Stock purchasable upon exercise of such New Option shall equal (1) the per share exercise price for the Shares otherwise purchasable pursuant to such Foundation Stock Option immediately prior to the Effective Time divided by (2) the Exchange Ratio (rounded up to the next whole cent) (such conversion being made in accordance with Treasury Regulation Section 1.409A-1(b)(5)(v)). The parties acknowledge that, with respect to any option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code, the foregoing provisions are intended to comply with the requirements of Section 424(a) of the Code. The parties agree and acknowledge that the conversion described in this Section 2.3(a) is not intended to result in a disqualification of any Foundation Stock Options as “qualified performance-based compensation” for purposes of Section 162(m) of the Code, and agree not to take any position inconsistent therewith. (b) At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each restricted Share outstanding under any Foundation Plan immediately prior to the Effective Time and set forth on Section 2.3(b) of the Foundation Disclosure Schedule shall become fully vested as of the Effective Time and, in full settlement thereof, shall be converted into the right to receive the per share Foundation Merger Consideration contemplated by Section 1.5(a). (c) At the Effective Time, each restricted stock unit issued under any Foundation Plan (a “Foundation Restricted Stock Unit”) that is subject to time-based vesting, outstanding immediately prior to the Effective Time and is set forth on Section 2.3(c) of the Foundation Disclosure Schedule shall become fully vested as of the Effective Time and shall, by virtue of the Merger and, except as provided in the next sentence, without any action on the part of the holder thereof, be converted into the right to receive the Foundation Merger Consideration. Notwithstanding anything herein to the contrary, any holder of a Foundation Restricted Stock Unit set forth on Section 2.3(c) of the Foundation Disclosure Schedule that also holds a Foundation Cash Unit set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be required to consent to the treatment of such Foundation Cash Unit described in Section 2.3(e) hereof as a condition precedent to the treatment of Foundation Restricted Stock Units described in this Section 2.3(c). (d) At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each (A) Foundation Restricted Stock Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(d) of the Foundation Disclosure Schedule shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a vested Surviving Corporation restricted stock unit having the terms and conditions (including time of payment) set forth on Exhibit B, except that the number of shares of Surviving Corporation Common Stock subject to each such Foundation Restricted Stock Unit shall be equal to the number of Shares subject to such Foundation Restricted Stock Unit immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded down to the nearest whole share), and (B) cash unit issued under any Foundation Plan (a “Foundation Cash Unit”) that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(d) of the Foundation Disclosure Schedule shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into one vested Surviving Corporation cash unit having the terms and conditions (including time of payment) set forth on Exhibit B; each such vested Surviving Corporation cash unit shall represent the right of the holder thereof to receive an amount in cash equal to $14.02. (e) At the Effective Time, by virtue of the Merger and subject to the consent of the holder thereof, each (A) Foundation Restricted Stock Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a Surviving Corporation restricted stock unit having the terms and conditions (including vesting and time of payment) set forth on Exhibit C, except that the number of shares of Surviving Corporation Common Stock subject to each such Foundation Restricted Stock Unit shall be equal to the number of Shares subject to such Foundation Restricted Stock Unit immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded down to the nearest whole share), and (B) Foundation Cash Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into one Surviving Corporation cash unit having the terms and conditions (including vesting and time of payment) set forth on Exhibit C; each such Surviving Corporation cash unit shall represent the right of the holder thereof to receive an amount in cash equal to $7.01. (f) At the Effective Time, the Surviving Corporation shall assume the obligations and succeed to the rights of Alpha under the Alpha Plans with respect to each compensatory option to purchase shares of Alpha Common Stock and each unvested performance share, restricted share, or restricted stock unit (each such restricted stock unit, an “Alpha Restricted Stock Unit”) or other equity-based compensation award issued under any Alpha Plan (together, the “Alpha Equity Awards”) (the assumption and conversion of each compensatory option to purchase shares of Alpha Common Stock being made in accordance with Treasury Regulation Section 1.424-1 and Treasury Regulation Section 1.409A-1(b)(5)(v)). Each Alpha Equity Award shall, immediately following the Effective Time, relate to the number of shares of Surviving Corporation Common Stock subject to such Alpha Equity Award prior to the Effective Time, on the same terms and conditions as were applicable to such Alpha Equity Award immediately prior to the Effective Time. The parties agree and acknowledge that the assumption and conversion of compensatory options to purchase shares of Alpha Common Stock described in this Section 2.3(f) is not intended to result in a disqualification of any such compensatory options as “qualified performance-based compensation” for purposes of Section 162(m) of the Code, and agree not to take any position inconsistent therewith. Prior to the Effective Time, Alpha and Foundation shall take all action required to reflect the transactions contemplated by this Section 2.3(f), including the conversion of the Alpha Equity Awards that are outstanding immediately prior to the Effective Time and the substitution of the Surviving Corporation for Alpha thereunder to the extent appropriate to effectuate the assumption of such Alpha Plans by the Surviving Corporation. From and after the Effective Time, all references to Alpha in each Alpha Plan pursuant to which any Alpha Equity Award has been granted and in each agreement evidencing any award of Alpha Equity Awards shall be deemed to refer to the Surviving Corporation.
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Treatment of Equity-Based Awards. (a) At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each compensatory option to purchase Shares (a “"Foundation Stock Option”") outstanding under any Foundation Plan immediately prior to the Effective Time and set forth on Section 2.3(a) of the Foundation Disclosure Schedule, whether or not then vested or exercisable, shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a fully vested option to purchase shares of Surviving Corporation Common Stock (a “"New Option”") having terms and conditions substantially similar to those set forth on Exhibit A, except that (A) the number of shares of Surviving Corporation Common Stock subject to each such Foundation Stock Option shall be equal to the product of (1) the number of Shares purchasable upon exercise of such Foundation Stock Option and (2) the Exchange Ratio, the product being rounded down to the next whole share, and (B) the exercise price per share of Surviving Corporation Common Stock purchasable upon exercise of such New Option shall equal (1) the per share exercise price for the Shares otherwise purchasable pursuant to such Foundation Stock Option immediately prior to the Effective Time divided by (2) the Exchange Ratio (rounded up to the next whole cent) (such conversion being made in accordance with Treasury Regulation Section 1.409A-1(b)(5)(v)). The parties acknowledge that, with respect to any option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code, the foregoing provisions are intended to comply with the requirements of Section 424(a) of the Code. The parties agree and acknowledge that the conversion described in this Section 2.3(a) is not intended to result in a disqualification of any Foundation Stock Options as “"qualified performance-based compensation” " for purposes of Section 162(m) of the Code, and agree not to take any position inconsistent therewith.
(b) At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each restricted Share outstanding under any Foundation Plan immediately prior to the Effective Time and set forth on Section 2.3(b) of the Foundation Disclosure Schedule shall become fully vested as of the Effective Time and, in full settlement thereof, shall be converted into the right to receive the per share Foundation Merger Consideration contemplated by Section 1.5(a).
(c) At the Effective Time, each restricted stock unit issued under any Foundation Plan (a “"Foundation Restricted Stock Unit”") that is subject to time-based vesting, outstanding immediately prior to the Effective Time and is set forth on Section 2.3(c) of the Foundation Disclosure Schedule shall become fully vested as of the Effective Time and shall, by virtue of the Merger and, except as provided in the next sentence, without any action on the part of the holder thereof, be converted into the right to receive the Foundation Merger Consideration. Notwithstanding anything herein to the contrary, any holder of a Foundation Restricted Stock Unit set forth on Section 2.3(c) of the Foundation Disclosure Schedule that also holds a Foundation Cash Unit set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be required to consent to the treatment of such Foundation Cash Unit described in Section 2.3(e) hereof as a condition precedent to the treatment of Foundation Restricted Stock Units described in this Section 2.3(c).
(d) At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each (A) Foundation Restricted Stock Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(d) of the Foundation Disclosure Schedule shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a vested Surviving Corporation restricted stock unit having the terms and conditions (including time of payment) set forth on Exhibit B, except that the number of shares of Surviving Corporation Common Stock subject to each such Foundation Restricted Stock Unit shall be equal to the number of Shares subject to such Foundation Restricted Stock Unit immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded down to the nearest whole share), and (B) cash unit issued under any Foundation Plan (a “"Foundation Cash Unit”") that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(d) of the Foundation Disclosure Schedule shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into one vested Surviving Corporation cash unit having the terms and conditions (including time of payment) set forth on Exhibit B; each such vested Surviving Corporation cash unit shall represent the right of the holder thereof to receive an amount in cash equal to $14.02.
(e) At the Effective Time, by virtue of the Merger and subject to the consent of the holder thereof, each (A) Foundation Restricted Stock Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a Surviving Corporation restricted stock unit having the terms and conditions (including vesting and time of payment) set forth on Exhibit C, except that the number of shares of Surviving Corporation Common Stock subject to each such Foundation Restricted Stock Unit shall be equal to the number of Shares subject to such Foundation Restricted Stock Unit immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded down to the nearest whole share), and (B) Foundation Cash Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into one Surviving Corporation cash unit having the terms and conditions (including vesting and time of payment) set forth on Exhibit C; each such Surviving Corporation cash unit shall represent the right of the holder thereof to receive an amount in cash equal to $7.01.
(f) At the Effective Time, the Surviving Corporation shall assume the obligations and succeed to the rights of Alpha under the Alpha Plans with respect to each compensatory option to purchase shares of Alpha Common Stock and each unvested performance share, restricted share, or restricted stock unit (each such restricted stock unit, an “"Alpha Restricted Stock Unit”") or other equity-based compensation award issued under any Alpha Plan (together, the “"Alpha Equity Awards”") (the assumption and conversion of each compensatory option to purchase shares of Alpha Common Stock being made in accordance with Treasury Regulation Section 1.424-1 and Treasury Regulation Section 1.409A-1(b)(5)(v)). Each Alpha Equity Award shall, immediately following the Effective Time, relate to the number of shares of Surviving Corporation Common Stock subject to such Alpha Equity Award prior to the Effective Time, on the same terms and conditions as were applicable to such Alpha Equity Award immediately prior to the Effective Time. The parties agree and acknowledge that the assumption and conversion of compensatory options to purchase shares of Alpha Common Stock described in this Section 2.3(f) is not intended to result in a disqualification of any such compensatory options as “"qualified performance-based compensation” " for purposes of Section 162(m) of the Code, and agree not to take any position inconsistent therewith. Prior to the Effective Time, Alpha and Foundation shall take all action required to reflect the transactions contemplated by this Section 2.3(f), including the conversion of the Alpha Equity Awards that are outstanding immediately prior to the Effective Time and the substitution of the Surviving Corporation for Alpha thereunder to the extent appropriate to effectuate the assumption of such Alpha Plans by the Surviving Corporation. From and after the Effective Time, all references to Alpha in each Alpha Plan pursuant to which any Alpha Equity Award has been granted and in each agreement evidencing any award of Alpha Equity Awards shall be deemed to refer to the Surviving Corporation.
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Treatment of Equity-Based Awards. (a) At Under the Effective Time, merger agreement equity-based awards held by virtue Enable directors and executive officers as of the effective time of the Merger and without any action on the part of the holders thereof, each compensatory option to purchase Shares (a “Foundation Stock Option”) outstanding under any Foundation Plan immediately prior to the Effective Time and set forth on Section 2.3(a) of the Foundation Disclosure Schedule, whether or not then vested or exercisable, shall become fully vested and shall will be assumed by the Surviving Corporation and converted automatically treated at the Effective Time into a fully vested option to purchase shares of Surviving Corporation Common Stock (a “New Option”) having terms and conditions substantially similar to those set forth on Exhibit A, except that (A) the number of shares of Surviving Corporation Common Stock subject to each such Foundation Stock Option shall be equal to the product of (1) the number of Shares purchasable upon exercise of such Foundation Stock Option and (2) the Exchange Ratio, the product being rounded down to the next whole share, and (B) the exercise price per share of Surviving Corporation Common Stock purchasable upon exercise of such New Option shall equal (1) the per share exercise price for the Shares otherwise purchasable pursuant to such Foundation Stock Option immediately prior to the Effective Time divided by (2) the Exchange Ratio (rounded up to the next whole cent) (such conversion being made in accordance with Treasury Regulation Section 1.409A-1(b)(5)(v)). The parties acknowledge that, with respect to any option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code, the foregoing provisions are intended to comply with the requirements of Section 424(a) of the Code. The parties agree and acknowledge that the conversion described in this Section 2.3(a) is not intended to result in a disqualification of any Foundation Stock Options as “qualified performance-based compensation” for purposes of Section 162(m) of the Code, and agree not to take any position inconsistent therewith.
(b) At the Effective Time, by virtue effective time of the Merger and without any action on the part of the holders thereofas follows: • Enable Phantom Units. Enable phantom units, each restricted Share outstanding under any Foundation Plan immediately prior to the Effective Time and set forth on Section 2.3(b) of the Foundation Disclosure Schedule shall become fully whether vested as of the Effective Time andor unvested, in full settlement thereof, shall be converted into the right to receive the per share Foundation Merger Consideration contemplated by Section 1.5(a).
(c) At the Effective Time, each restricted stock unit issued under any Foundation Plan (a “Foundation Restricted Stock Unit”) that is subject to time-based vesting, are outstanding immediately prior to the Effective Time effective time will be assumed by Energy Transfer and is set forth on Section 2.3(c) of the Foundation Disclosure Schedule shall become fully vested as of the Effective Time and shall, by virtue of the Merger and, except as provided in the next sentence, without any action on the part of the holder thereof, be converted into the a restricted unit award representing a contractual right upon vesting to receive the Foundation Merger Consideration. Notwithstanding anything herein a number of Energy Transfer common units equal to the contrary, any holder product obtained by multiplying (x) the number of a Foundation Restricted Stock Unit set forth on Section 2.3(c) of the Foundation Disclosure Schedule that also holds a Foundation Cash Unit set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be required Enable common units subject to consent to the treatment of such Foundation Cash Unit described in Section 2.3(e) hereof as a condition precedent to the treatment of Foundation Restricted Stock Units described in this Section 2.3(c).
(d) At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each (A) Foundation Restricted Stock Unit that is outstanding Enable assumed restricted unit award immediately prior to the Effective Time and is set forth on Section 2.3(deffective time by (y) of the Foundation Disclosure Schedule shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a vested Surviving Corporation restricted stock unit having the terms and conditions (including time of payment) set forth on Exhibit Bexchange ratio, except that the number of shares of Surviving Corporation Common Stock subject to each such Foundation Restricted Stock Unit shall be equal to the number of Shares subject to such Foundation Restricted Stock Unit immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded up or down to the nearest whole share), and (B) cash unit issued under any Foundation Plan (a “Foundation Cash Unit”) that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(d) of the Foundation Disclosure Schedule shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into one vested Surviving Corporation cash unit having the terms and conditions (including time of payment) set forth on Exhibit B; each such vested Surviving Corporation cash unit shall represent the right of the holder thereof to receive an amount in cash equal to $14.02.
(e) At the Effective Time, by virtue of the Merger and subject to the consent of the holder thereof, each (A) Foundation Restricted Stock Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a Surviving Corporation restricted stock unit having the terms and conditions (including vesting and time of payment) set forth on Exhibit C, except that the number of shares of Surviving Corporation Common Stock subject to each such Foundation Restricted Stock Unit shall be equal to the number of Shares subject to such Foundation Restricted Stock Unit immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded down to the nearest whole share), and (B) Foundation Cash Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into one Surviving Corporation cash unit having the terms and conditions (including vesting and time of payment) set forth on Exhibit C; each such Surviving Corporation cash unit shall represent the right of the holder thereof to receive an amount in cash equal to $7.01.
(f) At the Effective Time, the Surviving Corporation shall assume the obligations and succeed to the rights of Alpha under the Alpha Plans with respect to each compensatory option to purchase shares of Alpha Common Stock and each unvested performance share, restricted share, or restricted stock Energy Transfer common unit (each such restricted stock uniteach, an “Alpha Restricted Stock UnitEnable assumed restricted unit award”) or other equity-based compensation award issued under any Alpha Plan (together, the “Alpha Equity Awards”) (the assumption and conversion of each compensatory option to purchase shares of Alpha Common Stock being made in accordance with Treasury Regulation Section 1.424-1 and Treasury Regulation Section 1.409A-1(b)(5)(v)). Each Alpha Equity Award shall, immediately following the Effective Time, relate to the number of shares of Surviving Corporation Common Stock Enable assumed restricted unit award will otherwise be subject to such Alpha Equity Award prior to the Effective Time, on the same terms and conditions as were applicable to such Alpha Equity Award the Enable phantom units immediately prior to the Effective Timeeffective time. The parties agree • Enable Performance Awards. Each award of performance units that corresponds to Enable common units that is outstanding and acknowledge unvested as of the effective time will be measured as to performance as of the effective time (or a date reasonably proximate thereto) as determined in good faith by the Enable General Partner Board, and each such Enable performance award will, with respect to the number of Enable common units that are considered earned based on the higher of actual performance as of the closing of the Merger or target (the “Enable earned performance units”), be assumed by Energy Transfer and converted into an Enable assumed restricted unit award, which will have the same distribution equivalent rights and be eligible to vest solely based on continued service at the end of the performance period that was originally applicable thereto; provided, however, that the assumption and conversion of compensatory options to purchase shares of Alpha Common Stock described in this Section 2.3(f) is not intended to result in Enable earned performance units will vest upon a disqualification of any such compensatory options as “qualified performance-based compensationqualifying termination” for purposes of Section 162(m) of the Codeand, and agree not to take any position inconsistent therewith. Prior to the Effective Time, Alpha and Foundation shall take all action required to reflect the transactions contemplated by this Section 2.3(f), including the conversion of the Alpha Equity Awards that are outstanding immediately prior to the Effective Time and the substitution of the Surviving Corporation for Alpha thereunder to the extent appropriate applicable, will incorporate the provisions related to effectuate termination due to “retirement,” as provided in the assumption Enable phantom units, equal to the number of such Alpha Plans Enable earned performance units multiplied by the Surviving Corporation. From and after the Effective Timeexchange ratio, all references to Alpha in each Alpha Plan pursuant to which any Alpha Equity Award has been granted and in each agreement evidencing any award of Alpha Equity Awards shall be deemed to refer rounded up or down to the Surviving Corporation.nearest whole Energy Transfer common unit. Any performance units that are not Enable earned performance units will automatically be cancelled for no consideration. Notwithstanding the foregoing, with respect to Enable performance awards granted in 2021, the number of Enable earned performance units will be equal to the target number of units granted, regardless of performance. The number of unvested equity-based awards held by each independent director and executive officer of Enable as of March 2, 2021 is set forth below. For an estimate of the amounts that would be payable to each of Enable’s named executive officers upon the vesting and settlement of their unvested equity-based awards, see “—Quantification of Payments and Benefits to Enable’s Named Executive Officers” below. All awards to Enable independent directors are immediately vested, so there are no outstanding awards to independent directors. Non-independent directors (other than Xxxxxx X. Xxxxxx) are not eligible for these awards. Xxxxxx X. Xxxxxx 381,069 707,698 Xxxx X. Laws 137,708 255,740 Xxxxx X. Xxxxxxx Xx 40,136 47,406 Xxxxxx X. Xxxxxx 72,561 134,753 Xxxx X. Xxxxxxxxx 55,125 132,673 Xxxx X. Xxxxxx — — Xxxxxx X. Xxxxx — — Xxxxx X. Xxxx — —
Appears in 1 contract
Samples: Agreement and Plan of Merger
Treatment of Equity-Based Awards. (a) At Under the Effective Time, merger agreement equity-based awards held by virtue Enable directors and executive officers as of the effective time of the Merger and without any action on the part of the holders thereof, each compensatory option to purchase Shares (a “Foundation Stock Option”) outstanding under any Foundation Plan immediately prior to the Effective Time and set forth on Section 2.3(a) of the Foundation Disclosure Schedule, whether or not then vested or exercisable, shall become fully vested and shall will be assumed by the Surviving Corporation and converted automatically treated at the Effective Time into a fully vested option to purchase shares of Surviving Corporation Common Stock (a “New Option”) having terms and conditions substantially similar to those set forth on Exhibit A, except that (A) the number of shares of Surviving Corporation Common Stock subject to each such Foundation Stock Option shall be equal to the product of (1) the number of Shares purchasable upon exercise of such Foundation Stock Option and (2) the Exchange Ratio, the product being rounded down to the next whole share, and (B) the exercise price per share of Surviving Corporation Common Stock purchasable upon exercise of such New Option shall equal (1) the per share exercise price for the Shares otherwise purchasable pursuant to such Foundation Stock Option immediately prior to the Effective Time divided by (2) the Exchange Ratio (rounded up to the next whole cent) (such conversion being made in accordance with Treasury Regulation Section 1.409A-1(b)(5)(v)). The parties acknowledge that, with respect to any option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code, the foregoing provisions are intended to comply with the requirements of Section 424(a) of the Code. The parties agree and acknowledge that the conversion described in this Section 2.3(a) is not intended to result in a disqualification of any Foundation Stock Options as “qualified performance-based compensation” for purposes of Section 162(m) of the Code, and agree not to take any position inconsistent therewith.
(b) At the Effective Time, by virtue effective time of the Merger and without any action on the part of the holders thereofas follows: • Enable Phantom Units. Enable phantom units, each restricted Share outstanding under any Foundation Plan immediately prior to the Effective Time and set forth on Section 2.3(b) of the Foundation Disclosure Schedule shall become fully whether vested as of the Effective Time andor unvested, in full settlement thereof, shall be converted into the right to receive the per share Foundation Merger Consideration contemplated by Section 1.5(a).
(c) At the Effective Time, each restricted stock unit issued under any Foundation Plan (a “Foundation Restricted Stock Unit”) that is subject to time-based vesting, are outstanding immediately prior to the Effective Time effective time will be assumed by Energy Transfer and is set forth on Section 2.3(c) of the Foundation Disclosure Schedule shall become fully vested as of the Effective Time and shall, by virtue of the Merger and, except as provided in the next sentence, without any action on the part of the holder thereof, be converted into the a restricted unit award representing a contractual right upon vesting to receive the Foundation Merger Consideration. Notwithstanding anything herein a number of Energy Transfer common units equal to the contrary, any holder product obtained by multiplying (x) the number of a Foundation Restricted Stock Unit set forth on Section 2.3(c) of the Foundation Disclosure Schedule that also holds a Foundation Cash Unit set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be required Enable common units subject to consent to the treatment of such Foundation Cash Unit described in Section 2.3(e) hereof as a condition precedent to the treatment of Foundation Restricted Stock Units described in this Section 2.3(c).
(d) At the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each (A) Foundation Restricted Stock Unit that is outstanding Enable assumed restricted unit award immediately prior to the Effective Time and is set forth on Section 2.3(deffective time by (y) of the Foundation Disclosure Schedule shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a vested Surviving Corporation restricted stock unit having the terms and conditions (including time of payment) set forth on Exhibit Bexchange ratio, except that the number of shares of Surviving Corporation Common Stock subject to each such Foundation Restricted Stock Unit shall be equal to the number of Shares subject to such Foundation Restricted Stock Unit immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded up or down to the nearest whole share), and (B) cash unit issued under any Foundation Plan (a “Foundation Cash Unit”) that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(d) of the Foundation Disclosure Schedule shall become fully vested and shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into one vested Surviving Corporation cash unit having the terms and conditions (including time of payment) set forth on Exhibit B; each such vested Surviving Corporation cash unit shall represent the right of the holder thereof to receive an amount in cash equal to $14.02.
(e) At the Effective Time, by virtue of the Merger and subject to the consent of the holder thereof, each (A) Foundation Restricted Stock Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into a Surviving Corporation restricted stock unit having the terms and conditions (including vesting and time of payment) set forth on Exhibit C, except that the number of shares of Surviving Corporation Common Stock subject to each such Foundation Restricted Stock Unit shall be equal to the number of Shares subject to such Foundation Restricted Stock Unit immediately prior to the Effective Time multiplied by the Exchange Ratio (rounded down to the nearest whole share), and (B) Foundation Cash Unit that is outstanding immediately prior to the Effective Time and is set forth on Section 2.3(e) of the Foundation Disclosure Schedule shall be assumed by the Surviving Corporation and converted automatically at the Effective Time into one Surviving Corporation cash unit having the terms and conditions (including vesting and time of payment) set forth on Exhibit C; each such Surviving Corporation cash unit shall represent the right of the holder thereof to receive an amount in cash equal to $7.01.
(f) At the Effective Time, the Surviving Corporation shall assume the obligations and succeed to the rights of Alpha under the Alpha Plans with respect to each compensatory option to purchase shares of Alpha Common Stock and each unvested performance share, restricted share, or restricted stock Energy Transfer common unit (each such restricted stock uniteach, an “Alpha Restricted Stock UnitEnable assumed restricted unit award”) or other equity-based compensation award issued under any Alpha Plan (together, the “Alpha Equity Awards”) (the assumption and conversion of each compensatory option to purchase shares of Alpha Common Stock being made in accordance with Treasury Regulation Section 1.424-1 and Treasury Regulation Section 1.409A-1(b)(5)(v)). Each Alpha Equity Award shall, immediately following the Effective Time, relate to the number of shares of Surviving Corporation Common Stock Enable assumed restricted unit award will otherwise be subject to such Alpha Equity Award prior to the Effective Time, on the same terms and conditions as were applicable to such Alpha Equity Award the Enable phantom units immediately prior to the Effective Timeeffective time. The parties agree • Enable Performance Awards. Each award of performance units that corresponds to Enable common units that is outstanding and acknowledge unvested as of the effective time will be measured as to performance as of the effective time (or a date reasonably proximate thereto) as determined in good faith by the Enable General Partner Board, and each such Enable performance award will, with respect to the number of Enable common units that are considered earned based on the higher of actual performance as of the closing of the Merger or target (the “Enable earned performance units”), be assumed by Energy Transfer and converted into an Enable assumed restricted unit award, which will have the same distribution equivalent rights and be eligible to vest solely based on continued service at the end of the performance period that was originally applicable thereto; provided, however, that the assumption and conversion of compensatory options to purchase shares of Alpha Common Stock described in this Section 2.3(f) is not intended to result in Enable earned performance units will vest upon a disqualification of any such compensatory options as “qualified performance-based compensationqualifying termination” for purposes of Section 162(m) of the Codeand, and agree not to take any position inconsistent therewith. Prior to the Effective Time, Alpha and Foundation shall take all action required to reflect the transactions contemplated by this Section 2.3(f), including the conversion of the Alpha Equity Awards that are outstanding immediately prior to the Effective Time and the substitution of the Surviving Corporation for Alpha thereunder to the extent appropriate applicable, will incorporate the provisions related to effectuate termination due to “retirement,” as provided in the assumption Enable phantom units, equal to the number of such Alpha Plans Enable earned performance units multiplied by the Surviving Corporation. From and after the Effective Timeexchange ratio, all references to Alpha in each Alpha Plan pursuant to which any Alpha Equity Award has been granted and in each agreement evidencing any award of Alpha Equity Awards shall be deemed to refer rounded up or down to the Surviving Corporation.nearest whole Energy Transfer common unit. Any performance units that are not Enable earned performance units will automatically be cancelled for no consideration. Notwithstanding the foregoing, with respect to Enable performance awards granted in 2021, the number of Enable earned performance units will be equal to the target number of units granted, regardless of performance. The number of unvested equity-based awards held by each independent director and executive officer of Enable as of March 2, 2021 is set forth below. For an estimate of the amounts that would be payable to each of Enable’s named executive officers upon the vesting and settlement of their unvested equity-based awards, see “—Quantification of Payments and Benefits to Enable’s Named Executive Officers” below. All awards to Enable independent directors are immediately vested, so there are no outstanding awards to independent directors. Non-independent directors (other than Xxxxxx X. Sailor) are not eligible for these awards. Xxxxxx X. Sailor 381,069 707,698 Xxxx X. Laws 137,708 255,740 Xxxxx X. Xxxxxxx Xx 40,136 47,406 Xxxxxx X. Xxxxxx 72,561 134,753 Xxxx X. Xxxxxxxxx 55,125 132,673 Xxxx X. Xxxxxx — — Xxxxxx X. Xxxxx — — Xxxxx X. Kind — —
Appears in 1 contract
Samples: Agreement and Plan of Merger
