Treatment of Options. (a) Each RemainCo Option that is outstanding immediately prior to the Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Effective Time, into both a Post-Separation RemainCo Option and a SpinCo Option and each such award shall be subject to the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as the terms and conditions applicable to such RemainCo Option immediately prior to the Effective Time; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time: (i) the number of shares of RemainCo Common Stock subject to such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and (ii) the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor; (iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio; (iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio. (b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the Code.
Appears in 3 contracts
Samples: Employee Matters Agreement (Xperi Inc.), Employee Matters Agreement (Xperi Inc.), Employee Matters Agreement (Xperi, Inc.)
Treatment of Options. (a) Each RemainCo Effective upon the Closing, each unexpired and unexercised option to purchase shares of Company Common Stock (each a "Company Option") under the --------------- Company's 1997 Stock Option that is outstanding immediately prior to Plan, as amended through April 7, 1999 (the Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director "Company Stock ------------- Option Plan") shall be converted, as deemed to be automatically converted into an option (a ----------- "Parent Option") to purchase a number of the Effective Time, into both a Post-Separation RemainCo Option and a SpinCo Option and each such award shall be subject shares of Parent Common Stock equal to the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as the terms and conditions applicable to such RemainCo Option immediately prior to the Effective Time; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
(i) ------------- the number of shares of RemainCo Company Common Stock subject to such Post-Separation RemainCo that could have been purchased under the Company Option shall be equal to multiplied by the product, Conversion Number (with the resulting number of shares being rounded down to the nearest whole share), obtained at a price per share of Parent Common Stock equal to the option exercise price of the Company Option, divided by multiplying the Conversion Number provided, that there shall be no accelerated -------- exercisability of any Company Option solely as a result of consummation of the Merger except as provided in employment contracts in effect as of the date hereof and, provided further, the shares of Parent Common Stock issuable upon ---------------- exercise of the Parent Option thereof shall be subject to a "lock-up" period of 180 days after the Closing, wherein such shares may not be sold or otherwise disposed, and such "lock up" period shall be provided for under each of the Company Option holder's stock option agreements. The date of grant of the applicable Parent Option shall be the date on which the corresponding Company Option was granted.
(Ab) Effective upon the Closing, the Parent shall (i) assume all of the Company's obligations with respect to Company Options as contemplated by Section 1.6(a) above, (ii) reserve for issuance the number of shares of RemainCo Parent Common Stock that will become subject to Parent Options in accordance with the corresponding RemainCo Option immediately prior to the Effective Time by terms thereof, and (Biii) the RemainCo Value Factor; andmake available for issuance all shares of Parent Common Stock covered thereby.
(iic) Not later than one hundred eighty (180) days after the Closing, the Parent shall prepare and file with the SEC a registration statement on Form S-8 (or another appropriate form) registering the number of shares of SpinCo Parent Common Stock subject issuable upon the exercise of all Company Options assumed by Parent with Parent Options pursuant to such SpinCo Option Section 1.6(a) above, and shall be equal use its best efforts to cause the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price offer and sale of such Post-Separation RemainCo Option shall shares to be equal registered under the Securities Act and to maintain such registration in effect until the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price or termination of the corresponding RemainCo Option immediately prior to Company Options and the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price termination of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price all of the corresponding RemainCo Company Stock Option immediately prior to the Effective Time by (B) the SpinCo RatioPlan.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the Code.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Firstamerica Automotive Inc /De/), Agreement and Plan of Merger and Reorganization (Price Thomas A)
Treatment of Options. (ai) Each RemainCo At the Effective Time, each vested Option (including, for the avoidance of doubt, any Option subject to accelerated vesting upon the consummation of the transactions contemplated by this Agreement) with a per share exercise price less than the Per Share Merger Consideration that is outstanding immediately prior to the Effective Time (each, a “Cash-Out Option”) shall automatically and without any required action on the part of the holder thereof, be cancelled and shall only entitle the holder of such Cash-Out Option to receive (without interest) an amount in cash equal to the product of (x) the total number of shares of Company Common Stock subject to the Cash-Out Option multiplied by (y) the excess, if any, of the Per Share Merger Consideration over the per-share exercise price of such Cash-Out Option, less applicable Taxes required to be withheld with respect to such payment pursuant to Section 2.3(e). The Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay to the holders of Cash-Out Options the cash payments described in this Section 2.2(a)(i) on or as soon as reasonably practicable after the Closing Date, but in any event within two (2) Business Days following the Closing Date.
(ii) At the Effective Time, each (A) unvested Option that is outstanding immediately prior to the Effective Time and held by (B) vested Option with a RemainCo Employeeper share exercise price equal to or greater than the Per Share Merger Consideration that is outstanding immediately prior to the Effective Time (each option described in clauses (A) and (B), former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director “Rollover Option”) shall be convertedconverted into an option (each, as of the Effective Timean “Adjusted Option”) to acquire, into both a Post-Separation RemainCo Option and a SpinCo Option and each such award shall be subject to on the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as the terms and conditions were applicable to such RemainCo Rollover Option immediately prior to the Effective Time; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate number of Parent Shares equal to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
product of (i) the number of shares of RemainCo Company Common Stock subject to such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Rollover Option immediately prior to the Effective Time multiplied by (B) the RemainCo Value Factor; and
(ii) the Conversion Ratio, with any fractional shares rounded down to the next lower whole number of shares after aggregating each individual holder’s Option with the same exercise price. The exercise price per Parent Share subject to any such Adjusted Option will be an amount (rounded up to the nearest whole cent) equal to the quotient of SpinCo (A) the exercise price per share of Company Common Stock subject to such SpinCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Rollover Option immediately prior to the Effective Time divided by (B) the SpinCo Value Factor;
Conversion Ratio. Notwithstanding the foregoing, in all cases, (iii1) the per share exercise price of, and number of such Post-Separation RemainCo Parent Shares subject to, each Adjusted Option shall be equal determined as necessary to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price comply with Section 409A of the corresponding RemainCo Code and (2) with respect to any Rollover Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price which Section 421 of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1Code applies, the exercise price, the number of shares of RemainCo Common Stock subject Parent Shares purchasable pursuant to each Post-Separation RemainCo Adjusted Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, each Adjusted Option shall be determined in a manner consistent order to comply with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) 424 of the Code.
Appears in 2 contracts
Samples: Merger Agreement (Rite Aid Corp), Merger Agreement (Walgreens Boots Alliance, Inc.)
Treatment of Options. (a) Each RemainCo Option that is outstanding immediately prior to the Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of At the Effective Time, into both each outstanding option to purchase Company Common Stock (a Post"Company Stock Option") issued pursuant to the Company's 1989 Stock Option Plan, 1997 Equity Incentive Plan and 1997 Non-Separation RemainCo Officer Equity Incentive Plan (collectively with the 1994 Non-Employee Directors' Stock Option and a SpinCo Option and each such award Plan, the "Company Stock Plans"), whether vested or unvested, shall be subject converted into an option (a "Parent Stock Option") to acquire, on the same terms and conditions as were applicable under such Company Stock Option, a number of shares of Parent Common Stock equal to (including with respect to vesting and expiration) after the Effective Time as the terms and conditions applicable to such RemainCo Option immediately prior to the Effective Time; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
(i1) the number of shares of RemainCo Company Common Stock subject to such Post-Separation RemainCo Company Stock Option shall be equal to multiplied by (2) the productExchange Ratio, rounded down to the nearest whole share, obtained by multiplying at a price per share equal to (Ax) the number of shares of RemainCo Common exercise price per share for such Company Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time divided by (By) the RemainCo Value Factor; and
(ii) the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotientExchange Ratio, rounded up to the nearest whole cent; provided, obtained by dividing (A) however, that the exercise price per share exercise of each Parent Stock Option held by an individual who is an employee of or consultant to the Company or any Subsidiary as of the Effective Time will not exceed the closing price of a share of Parent Common Stock on the corresponding RemainCo NYSE Composite Transaction Tape on the date immediately prior to the Closing Date.
(b) Prior to the Effective Time, the board of directors of Parent and its compensation committee, as applicable, shall take all necessary action to assume and adopt, as of the Effective Time, the Company's 1997 Equity Incentive Plan, and shall have the discretion to assume and adopt, as of the Effective Time, each other Company Stock Plan in which a Parent Stock Option immediately is outstanding following the Effective Time and which has not terminated by its terms. Within ten (10) business days after the Effective Time, Parent shall deliver to the holders of Company Stock Options appropriate notices pursuant to the Company Stock Plans. If necessary, Parent shall comply with the terms of the Company Stock Plans and ensure, to the extent required by, and subject to the provisions of, the Company Stock Plans and applicable law, that Company Stock Options that qualified as incentive stock options prior to the Effective Time by (B) continue to qualify as incentive stock options after the RemainCo Ratio;Effective Time.
(ivc) Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon exercise of Parent Stock Options. No later than five business days after the Effective Time, Parent shall file a registration statement on Form S-3 or Form S-8, as the case may be (or any successor or other appropriate forms), or another appropriate form, with respect to the shares of Parent Common Stock subject to such options to the fullest extent permitted by law and shall use its reasonable best efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such options remain outstanding.
(d) Each outstanding purchase right under the Stock Purchase Plan shall be exercised for the purchase of shares of Company Common Stock at the price per share exercise price of such SpinCo Option shall be equal determined pursuant to the quotient, rounded up to Stock Purchase Plan on the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option date immediately prior to the Effective Time by (BClosing Date, pursuant to Section 12(b)(iii) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in Stock Purchase Plan (the case of any RemainCo Option to which Section 421 of "Final Offering Period"). Immediately following the Code applies by reason of its qualification under Section 422 of the Code as of immediately Final Offering Period and upon or prior to the Effective Time, the exercise price, Company shall take all action necessary to provide that the number of shares of RemainCo Stock Purchase Plan shall be terminated and that no Person has any further right to purchase Company Common Stock subject to under the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the CodePurchase Plan.
Appears in 2 contracts
Samples: Merger Agreement (Applera Corp), Merger Agreement (Axys Pharmaceuticals Inc)
Treatment of Options. (a) At Effective Time, each outstanding option to purchase a share of Company Common Stock (collectively, “Company Options”) granted under any Company Stock Plan, whether or not then exercisable or vested, shall automatically be converted, by virtue of the Merger and without any action on the part of the holder thereof, into an option to acquire such number of shares of Parent Common Stock (a “Rollover Option”) equal to the product of (x) the number of shares of Company Common Stock subject to such Company Option and (y) the Exchange Ratio (provided that any fractional share resulting from such multiplication shall be rounded down to the nearest whole share). Each RemainCo Rollover Option shall be subject to, and shall vest and remain exercisable in accordance with, the same terms and conditions of the Company Option it replaces, except that is the exercise price per share of each Rollover Option shall be equal to the quotient of (i) the exercise price per share of such Company Option and (ii) the Exchange Ratio (provided that such exercise price shall be rounded up to the nearest whole cent). The conversion of the Company Options to Rollover Options pursuant to this Section 1.9 shall be effected in a manner consistent with Section 424 of the Code.
(b) All shares of restricted Company Common Stock granted under the Company Stock Plans (and any other shares of Company Common Stock subject to vesting or future issuance under the Company Stock Plans) (collectively, “Other Stock Awards”) outstanding immediately prior to the Effective Time and held by a RemainCo EmployeeTime, former RemainCo Employeewhether or not then vested, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Effective Time, into both a Post-Separation RemainCo Option and a SpinCo Option and each such award shall be subject to treated in the same terms and conditions (including with respect to vesting and expiration) after the Effective Time manner as the terms and conditions applicable to such RemainCo Option all other shares of Company Common Stock outstanding immediately prior to the Effective Time; provided, however, that certain restrictions may the Merger Consideration received by each holder in exchange for the holder’s Other Stock Awards shall be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
(i) the number of shares of RemainCo Common Stock subject to such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of (including vesting schedules) applicable to such options, shall be determined Other Stock Awards as in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately effect prior to the Effective Time, .
(c) The Company and Parent shall take all such steps and actions as may be required to cause the exercise price, the number transactions contemplated by this Section 1.9 and any other dispositions of shares Company equity securities (including derivative securities) or acquisitions of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined Parent equity securities (including derivative securities) in connection with this Agreement by each individual who (i) is a manner consistent with the requirements of Section 424(a) director or officer of the CodeCompany or (ii) at the Effective Time will become a director or officer of Parent, to become exempt under Rule 16b-3 promulgated under the Exchange Act.
Appears in 2 contracts
Samples: Merger Agreement (Babyuniverse, Inc.), Merger Agreement (eToys Direct, Inc.)
Treatment of Options. (a) Each RemainCo Option that is outstanding immediately Immediately prior to Closing, all unvested Options will become fully vested.
(b) Upon Closing, the Effective Time and held by a RemainCo EmployeeOptionholders will transfer to Amalco all (but not less than all) vested Options, former RemainCo Employeeincluding the Options which became fully vested pursuant to Section 3.3(a), SpinCo Employeein consideration for an amount equal to the aggregate “in-the-money” value of such Options (the “Option Consideration”), former SpinCo Employee or a Xperi Director which amount shall be converted, as of the Effective Time, into both a Post-Separation RemainCo Option and a SpinCo Option and each such award shall be subject to the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as the terms and conditions applicable to such RemainCo Option immediately prior to the Effective Time; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Timepaid by:
(i) Amalco issuing the number of shares of RemainCo Common Stock subject to such Post-Separation RemainCo Option shall be equal Net Settlement Notes to the productOptionholders, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) Amalco remitting the number of shares of SpinCo Common Stock Optionholders’ Withholding Amount to the applicable Governmental Entities when due.
(c) The Option Consideration is subject to adjustment in accordance with Section 3.6(e)(iv), and, if positive, such SpinCo Option adjustment shall be equal paid by:
(i) Amalco paying the Optionholders’ Proportionate Adjustment Amount to Agent, for and on behalf of the Optionholders, pursuant to Section 3.6(e)(iv)(B), which payment will be deemed to have been made upon Closing for all purposes of this Agreement, and
(ii) Amalco remitting the Optionholders’ Additional Withholding Amount to the productapplicable Governmental Entities when due, rounded down which remittance obligation will be deemed to the nearest whole sharearise upon Closing for all purposes of this Agreement, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor;and, if negative, such adjustment shall be paid by:
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal Escrow Agent releasing to Amalco the quotient, rounded up to Optionholders’ Proportionate Adjustment Amount from the nearest cent, obtained by dividing (A) the per share exercise price Optionholders’ allocated portion of the corresponding RemainCo Option immediately prior Adjustment Escrow Amount pursuant to the Effective Time by (B) the RemainCo Ratio;Section 3.6(e)(iv)(C), and
(iv) the per share exercise price of such SpinCo Option shall be equal Agent paying to the quotientAmalco, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price for and on behalf of the corresponding RemainCo Option immediately prior Optionholders, the excess (if any) of the Optionholders’ Proportionate Adjustment Amount remaining after the release of the Optionholders’ allocated portion of the Adjustment Escrow Amount pursuant to the Effective Time by (B) the SpinCo RatioSection 3.6(e)(iv)(C).
(bd) Notwithstanding anything The Option Consideration is subject to adjustment in accordance with Section 11.10, and any such adjustment shall be paid by (i) the Escrow Agent releasing to Amalco the amount of any such adjustment to the contrary in this Section 4.1Option Consideration from the Optionholders’ allocated portion of the Indemnity Escrow Amount pursuant to the Escrow Agreement, and (ii) Agent paying to Amalco, for and on behalf of the Optionholders, the exercise priceexcess (if any) of any such adjustment to the Option Consideration remaining after the release of the Optionholders’ allocated portion of the Indemnity Escrow Amount pursuant to the Escrow Agreement.
(e) Following Closing, the number Optionholders’ allocated portion of shares the Adjustment Escrow Amount and the Optionholders’ allocated portion of RemainCo Common Stock the Indemnity Escrow Amount will be held and released by the Escrow Agent in accordance with and subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the CodeEscrow Agreement.
Appears in 2 contracts
Samples: Arrangement Agreement, Arrangement Agreement (Vasco Data Security International Inc)
Treatment of Options. Immediately prior to the Closing, the US Company shall take all actions necessary so that each Option then outstanding shall, contingent upon the Closing, become fully vested and exercisable (awhether or not currently exercisable) Each RemainCo Option that is outstanding and, immediately prior to the Effective Time Closing, each Option not theretofore exercised shall, contingent upon the Closing, be cancelled for the consideration set forth in this Section 1.2 (the “Option Cancellation”). In exchange for the Option Cancellation, each Optionholder will receive, subject to any applicable withholding obligation, a portion of the Closing Payment, the Escrow Amount and held by a RemainCo Employeethe Stockholders’ Agent Expense Fund Amount allocated to such Optionholder in accordance with such Optionholder’s Pro Rata Basis as set forth opposite such Optionholder’s name on Schedule 1.2 (the “Selling Parties Allocation Schedule”), former RemainCo Employeeminus the applicable Exercise Price of such Option (the net of which is referred to as such Optionholder’s “Option Consideration”). For the avoidance of doubt, SpinCo Employeethe Exercise Price of such Option shall first be deducted from such Optionholder’s allocation of the Closing Payment (such net amount, former SpinCo Employee or a Xperi Director such Optionholder’s “Closing Option Consideration”), and if such amount is insufficient, then from their share of the Stockholders’ Agent Expense Fund Amount and finally from their allocation of the Escrow Amount and the remaining portion of the Escrow Amount and Stockholders’ Agent Expense Fund Amount shall be converted, as of distributed to the Effective Time, into both a Post-Separation RemainCo Option Optionholders in accordance with the terms and a SpinCo Option and each such award shall be subject to the same terms conditions set forth in the Escrow Agreement (as defined below) and conditions in Section 10.1(c), respectively. In exchange for receipt of such Option Consideration, all obligations of the Acquired Companies and the Selling Stockholders hereunder and under the cancelled Options and any other similar stock option or other equity compensation arrangements between the Optionholders and the Acquired Companies shall be forever extinguished and the Optionholders shall have no further rights under such cancelled Options or any other stock option or equity compensation awards whatsoever. Further, by executing this Agreement, each Optionholder hereby: (including a) unconditionally releases, remises and discharges the Acquired Companies, the Selling Stockholders, the Purchaser and their respective Subsidiaries and Affiliates, together with their respective directors, officers and employees, from any known and unknown claims with respect to vesting the cancelled Options and expiration) after the Effective Time as the terms and conditions applicable to such RemainCo Option immediately prior any other equity compensation awards including any Tax or other liabilities relating to the Effective Time; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary cancelled Options and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
(i) the number of shares of RemainCo Common Stock subject to such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything other than the Option Consideration, waives any and all rights to, or claims for, any form of compensation in connection with the cancelled Options as well as any rights to purchase shares of the Acquired Companies’ Common Stock prior to or in connection with the consummation of the Transactions. Prior to the contrary Closing, the board of directors of the US Company (or, if appropriate, any committee thereof) shall take all such actions, if any, as may be necessary to terminate the Options and any rights with respect thereto, in each case, in accordance with this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable1.2, and any other plan, program, arrangement or agreement providing for the terms and conditions issuance or grant of exercise of such options, shall be determined any other interest in a manner consistent with the requirements of Section 409A respect of the Code; provided, that, in the case of any RemainCo Option to which Section 421 capital stock of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the CodeUS Company.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (OMNICELL, Inc)
Treatment of Options. (a) At the Effective Time, each outstanding option to purchase a share of Company Common Stock (collectively, “Company Options”) granted under any Company Stock Plan, whether or not then exercisable or vested, shall automatically be converted, by virtue of the Merger and without any action on the part of the holder thereof, into an option to acquire such number of shares of Parent Common Stock (a “Rollover Option”) equal to the product of (x) the number of shares of Company Common Stock subject to such Company Option and (y) the Exchange Ratio (provided that any fractional share resulting from such multiplication shall be rounded down to the nearest whole share). Each RemainCo Rollover Option shall also include the right to receive the applicable Milestone Consideration Per Share (if any). Each Rollover Option shall be subject to, and shall vest and remain exercisable in accordance with, the same terms and conditions of the Company Option it replaces, except that the exercise price per share of each Rollover Option shall be equal to the quotient of (i) the exercise price per share of such Company Option and (ii) the Exchange Ratio (provided that such exercise price shall be rounded up to the nearest whole cent). The conversion of the Company Options to Rollover Options pursuant to this Section 1.10 shall be effected in a manner consistent with Section 424 of the Code. Parent shall take reasonable steps to ensure that any Company Option that is qualifies as an “incentive stock option” under Section 422 of the Code immediately prior to the Closing shall not lose its status as an incentive stock option as a result of the conversion to a Rollover Option described above. Following the Closing, Parent shall send to each holder of a Rollover Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such Rollover Option, and (ii) the exercise price per share of Parent Common Stock issuable upon exercise of such Rollover Option. Not later than four (4) business days (within the meaning of Form 8-K) after the Effective Time, Parent shall, with full cooperation from the Company prior to the Closing and from the Surviving Corporation following the Closing, prepare and file with the SEC a report on Form 8-K as required with respect to the Merger. As soon as permissible following the filing of such report on Form 8-K, Parent shall file with the SEC a registration statement on Form S-8 registering the exercise of any Rollover Options. Parent shall use commercially reasonable efforts (i) to cause, to the extent reasonably practicable, any shares of Parent Common Stock issued upon exercise of Rollover Options prior to the effectiveness of the registration statement on Form S-8 to be included in the shares to be registered in the Registration Statement, and (ii) to cause such Form S-8 registration statement to remain effective for so long as any Rollover Options remain outstanding.
(b) All shares of restricted Company Common Stock granted under the Company Stock Plans (and any other shares of Company Common Stock subject to vesting or future issuance under the Company Stock Plans) (collectively, “Other Stock Awards”) outstanding immediately prior to the Effective Time and held by a RemainCo EmployeeTime, former RemainCo Employeewhether or not then vested, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Effective Time, into both a Post-Separation RemainCo Option and a SpinCo Option and each such award shall be subject to treated in the same terms and conditions (including with respect to vesting and expiration) after the Effective Time manner as the terms and conditions applicable to such RemainCo Option all other shares of Company Common Stock outstanding immediately prior to the Effective Time; provided, however, that certain restrictions may the Per Share Merger Consideration and the Milestone Consideration Per Share (if any) received by each holder in exchange for the holder’s Other Stock Awards shall be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
(i) the number of shares of RemainCo Common Stock subject to such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of (including vesting schedules) applicable to such options, shall be determined Other Stock Awards as in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately effect prior to the Effective Time, .
(c) The Company and Parent shall take all such steps and actions as may be required to cause the exercise price, the number transactions contemplated by this Section 1.10 and any other dispositions of shares Company equity securities (including derivative securities) or acquisitions of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined Parent equity securities (including derivative securities) in connection with this Agreement by each individual who (i) is a manner consistent with the requirements of Section 424(a) director or officer of the CodeCompany or (ii) at the Effective Time will become a director or officer of Parent, to become exempt under Rule 16b-3 promulgated under the Exchange Act.”
Appears in 1 contract
Samples: Agreement and Plan of Merger (Oracle Healthcare Acquisition Corp.)
Treatment of Options. (ai) Each RemainCo Option that is outstanding immediately prior to the Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of At the Effective Time, into both a Post-Separation RemainCo each holder of an option (collectively, “Sun Options”) to purchase shares of Sun Common Stock that (i) is outstanding at the Effective Time, (ii) has been granted pursuant to Sun’s 1998 Stock Incentive Plan or 1998 Independent Directors Stock Option Plan or the Sentry Plans; and a SpinCo Option and each such award shall be subject to the same terms and conditions (including with respect to vesting and expirationiii) after would otherwise survive the Effective Time as shall be entitled to receive, in substitution for such Sun Option, an option to acquire shares of Omega Common Stock on the terms and conditions applicable set forth below (each Sun Option as substituted, an “Omega Option”).
(ii) An Omega Option shall be a stock option to such RemainCo Option immediately prior to acquire shares of Omega Common Stock with the Effective Time; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
following terms: (i) the number of shares of RemainCo Omega Common Stock subject which may be acquired pursuant to such Post-Separation RemainCo Omega Option shall be equal to the productproduct of the number of shares of Sun Common Stock covered by the corresponding Sun Option multiplied by 0.664, provided that any fractional share of Omega Common Stock resulting from such multiplication shall be rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) the number exercise price per share of shares of SpinCo Omega Common Stock subject to such SpinCo issuable upon exercise of the Omega Option shall be equal to the productexercise price of the corresponding Sun Option immediately prior to the conversion thereof to an Omega Option, divided by 0.664, provided that such exercise price shall be rounded down to the nearest whole sharecent; (iii) the duration and other terms of such Omega Option shall be identical to the duration and other terms of the corresponding Sun Option immediately prior to the conversion thereof to an Omega Option, obtained except that all references to Sun shall be deemed to be references to Omega and its affiliates, where the context so requires and shall remain exercisable until the stated expiration date of the corresponding Sun Option; (iv) Omega shall assume such Sun Option, whether vested or not vested, as contemplated by multiplying the Code; and (Av) to the extent Sun Options qualify as incentive stock options under Section 422 of the Code, the Omega Options exchanged therefor shall also so qualify.
(iii) On or within 15 days after the Effective Time, Omega shall take appropriate action to reserve for issuance and, if not previously registered pursuant to the Securities Act, register the number of shares of RemainCo Omega Common Stock subject necessary to satisfy Omega’s obligations with respect to the corresponding RemainCo Option immediately prior issuance of Omega Common Stock pursuant to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the CodeOmega Options.
Appears in 1 contract
Samples: Merger Agreement (Sun Bancorp Inc)
Treatment of Options. (a) Schedule 2.05(a) to this Agreement identifies each currently outstanding share option grant notice and option agreement or other share option agreement evidencing the grant of an option to purchase Company Shares (each a “Share Option”), including the name of the person to whom such Share Option was granted, the number of Company Shares underlying such Share Option, and the applicable exercise price per share. Each RemainCo Share Option shall be fully vested as of immediately prior to the Effective Time of the Merger. The Company shall prior to the Effective Time of the Merger cause or have caused each Share Option that is was outstanding immediately prior to the Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Effective TimeMerger and that will not, into both a Post-Separation RemainCo Option by the terms of the applicable share option notice and a SpinCo Option and each such award shall option agreement or other stock option agreement by which it is governed, automatically cease to be subject to the same terms and conditions (including with respect to vesting and expiration) after exercisable following the Effective Time of the Merger, to be cancelled and to cease to exist following the Effective Time of the Merger in exchange for Parent’s payment of the amounts set forth in Section 2.05(b) below.
(b) At the Closing, in exchange for the cancellation of the Share Options as set forth in Section 2.05(a) above, Parent shall pay to the terms and conditions applicable Company by wire transfer of immediately available funds an amount equal to the sum of each Optionholder’s Pro Rata Cash Closing Interest minus the Aggregate Option Exercise Price. The Company shall promptly pay to each Optionholder an amount equal to (i) such RemainCo Option Optionholder’s Pro Rata Cash Closing Interest multiplied by the number of Company Shares underlying Share Options held by such Optionholder immediately prior to the Effective Time; provided, however, that certain restrictions may be imposed on Time of the Merger less (ii) the sum of the product (computed separately for each Share Option held by such Post-Separation RemainCo Option or SpinCo Option after Optionholder immediately prior to the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after of the Effective Time:
(iMerger) of the exercise price per Company Share for such Share Option times the number of shares of RemainCo Common Stock Company Shares subject to such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Share Option immediately prior to the Effective Time by of the Merger, less (Biii) all applicable federal, state, local and foreign withholding Taxes, provided that the RemainCo Value FactorCompany shall pay over such withheld amounts to the appropriate Governmental Entity; andit being understood and agreed that each Optionholder shall, subject to the adjustment in Section 2.02(f), be entitled to receive that amount pursuant to this Section 2.05(b) (before applicable tax withholding) that is set forth opposite the name of such holder on Schedule 2.03(c), and in the event of any discrepancy between the amount that would be due to any Optionholder in respect of any such payment pursuant to this Section 2.05(b) (before applicable tax withholding) and the amount that would be due to such Shareholder as set forth on Schedule 2.03(c) (before applicable tax withholding), the amount set forth on Schedule 2.03(c) shall prevail.
(iic) At such times or times as the Shareholders are entitled to receive their Pro Rata Escrow Interest, Pro Rata Earn Out Interest or Pro Rata Reserve Interest, if any, with respect to each Company Share or the Pro Rata Retention Payment Interest, Parent shall pay to the Surviving Company by wire transfer of immediately available funds an amount equal to the sum of the Pro Rata Escrow Interest, Pro Rata Earn Out Interest or Pro Rata Reserve Interest, as applicable, multiplied by the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to Company Shares underlying the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option Share Options outstanding immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option Merger or the Pro Rata Retention Payment Interest for each Optionholder, as applicable and the Surviving Company shall promptly pay to each such Optionholder, the Pro Rata Escrow Interest, Pro Rata Earn Out Interest or Pro Rata Reserve Interest, as applicable, multiplied by the number of Company Shares underlying the Share Options held by such Optionholder immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo OptionMerger or such Optionholder’s Pro Rata Retention Payment Interest, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of less any RemainCo Option to which Section 421 of withholding Taxes required under the Code applies by reason of its qualification under Section 422 of or any applicable legal requirement to be deducted and withheld, provided that the Code as of immediately prior Surviving Company shall pay over such withheld amounts to the Effective Timeappropriate Governmental Entity; it being understood and agreed that (i) each Optionholder shall, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and terms of Article II hereof, be entitled to receive that percentage of each of the number of shares of SpinCo Common Stock subject to the SpinCo OptionEscrow Fund, Reserve Amount, and the terms Earn Out Payments, and conditions that amount of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the Code.the
Appears in 1 contract
Samples: Merger Agreement (Amber Road, Inc.)
Treatment of Options. (a) At the Effective Time, each outstanding option to purchase a share of Company Common Stock (collectively, “Company Options”) granted under any Company Stock Plan, whether or not then exercisable or vested, shall automatically be converted, by virtue of the Merger and without any action on the part of the holder thereof, into an option to acquire such number of shares of Parent Common Stock (a “Rollover Option”) equal to the product of (x) the number of shares of Company Common Stock subject to such Company Option and (y) the Exchange Ratio (provided that any fractional share resulting from such multiplication shall be rounded down to the nearest whole share). Each RemainCo Rollover Option shall also include the right to receive the applicable Milestone Consideration Per Share (if any) and the applicable Top-Up Consideration Per Share (if any). Each Rollover Option shall be subject to, and shall vest and remain exercisable in accordance with, the same terms and conditions of the Company Option it replaces, except that the exercise price per share of each Rollover Option shall be equal to the quotient of (i) the exercise price per share of such Company Option and (ii) the Exchange Ratio (provided that such exercise price shall be rounded up to the nearest whole cent). The conversion of the Company Options to Rollover Options pursuant to this Section 1.10 shall be effected in a manner consistent with Section 424 of the Code. Parent shall take reasonable steps to ensure that any Company Option that is qualifies as an “incentive stock option” under Section 422 of the Code immediately prior to the Closing shall not lose its status as an incentive stock option as a result of the conversion to a Rollover Option described above. Following the Closing, Parent shall send to each holder of a Rollover Option a written notice setting forth (i) the number of shares of Parent Common Stock subject to such Rollover Option, and (ii) the exercise price per share of Parent Common Stock issuable upon exercise of such Rollover Option. Not later than four (4) business days (within the meaning of Form 8-K) after the Effective Time, Parent shall, with full cooperation from the Company prior to the Closing and from the Surviving Corporation following the Closing, prepare and file with the SEC a report on Form 8-K as required with respect to the Merger. As soon as permissible following the filing of such report on Form 8-K, Parent shall file with the SEC a registration statement on Form S-8 registering the exercise of any Rollover Options. Parent shall use commercially reasonable efforts (i) to cause, to the extent reasonably practicable, any shares of Parent Common Stock issued upon exercise of Rollover Options prior to the effectiveness of the registration statement on Form S-8 to be included in the shares to be registered in the Registration Statement, and (ii) to cause such Form S-8 registration statement to remain effective for so long as any Rollover Options remain outstanding.
(b) All shares of restricted Company Common Stock granted under the Company Stock Plans (and any other shares of Company Common Stock subject to vesting or future issuance under the Company Stock Plans) (collectively, “Other Stock Awards”) outstanding immediately prior to the Effective Time and held by a RemainCo EmployeeTime, former RemainCo Employeewhether or not then vested, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Effective Time, into both a Post-Separation RemainCo Option and a SpinCo Option and each such award shall be subject to treated in the same terms and conditions (including with respect to vesting and expiration) after the Effective Time manner as the terms and conditions applicable to such RemainCo Option all other shares of Company Common Stock outstanding immediately prior to the Effective Time; provided, however, that certain restrictions may the Per Share Merger Consideration, Milestone Consideration Per Share (if any) and the Top-Up Consideration Per Share (if any) received by each holder in exchange for the holder’s Other Stock Awards shall be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
(i) the number of shares of RemainCo Common Stock subject to such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of (including vesting schedules) applicable to such options, shall be determined Other Stock Awards as in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately effect prior to the Effective Time, .
(c) The Company and Parent shall take all such steps and actions as may be required to cause the exercise price, the number transactions contemplated by this Section 1.10 and any other dispositions of shares Company equity securities (including derivative securities) or acquisitions of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined Parent equity securities (including derivative securities) in connection with this Agreement by each individual who (i) is a manner consistent with the requirements of Section 424(a) director or officer of the CodeCompany or (ii) at the Effective Time will become a director or officer of Parent, to become exempt under Rule 16b-3 promulgated under the Exchange Act.
Appears in 1 contract
Samples: Merger Agreement (Oracle Healthcare Acquisition Corp.)
Treatment of Options. (a) Each RemainCo Option that is outstanding immediately prior to At the Reincorporation Merger Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Primary Merger Effective Time, into both respectively, the Surviving Corporation shall assume the NMB Stock Plans and the FCB Stock Plans as well as the rights, duties and obligations of NMB and FCB, respectively, with respect to the administration of such plans.
(b) At the Primary Merger Effective Time, each outstanding option to purchase shares of FCB Common Stock (a Post-Separation RemainCo Option and a SpinCo Option and each such award “FCB Option”) under the FCB Stock Plan, vested or unvested, shall be converted into an option to acquire a number of shares of Surviving Corporation Common Stock equal to the product (rounded up to the nearest whole number except to the extent Section 409A of the Code requires otherwise) of (x) the number of shares of FCB Common Stock subject to the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as the terms and conditions applicable to such RemainCo FCB Option immediately prior to the Primary Merger Effective TimeTime and (y) the FCB Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to (A) the exercise price per share of such FCB Option Table of Contents immediately prior to the Primary Merger Effective Time divided by (B) the FCB Exchange Ratio; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
(i) the number of shares of RemainCo Common Stock subject to such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Surviving Corporation Common Stock subject purchasable pursuant to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, FCB Options shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, thatfurther, that in the case of any RemainCo FCB Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Timeapplies, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option price and the number of shares of SpinCo Surviving Corporation Common Stock purchasable pursuant to such option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided above, following the Primary Merger Effective Time, each FCB Option shall continue to be governed by the same terms and conditions as were applicable under such FCB Option immediately prior to the Primary Merger Effective Time.
(c) At the Reincorporation Merger Effective Time, each outstanding option to purchase shares of NMB Common Stock (an “NMB Option”) under the NMB Stock Plans, vested or unvested, shall be converted into an option to acquire a number of shares of Surviving Corporation Common Stock equal to the product (rounded up to the nearest whole number except to the extent Section 409A of the Code requires otherwise) of (x) the number of shares of NMB Common Stock subject to the SpinCo OptionNMB Option immediately prior to the Reincorporation Merger Effective Time and (y) the NMB Exchange Ratio, at an exercise price per share (rounded up to the nearest whole cent) equal to (A) the exercise price per share of such NMB Option immediately prior to the Reincorporation Merger Effective Time divided by (B) the NMB Exchange Ratio; provided, however, that the exercise price and the terms and conditions number of exercise shares of such options Surviving Corporation Common Stock purchasable pursuant to the NMB Options shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, further, that in the case of any NMB Option to which Section 422 of the Code applies, the exercise price and the number of shares of Surviving Corporation Common Stock purchasable pursuant to such option shall be determined in accordance with the foregoing, subject to such adjustments as are necessary in order to satisfy the requirements of Section 424(a) of the Code. Except as specifically provided above, following the Primary Merger Effective Time, each NMB Option shall continue to be governed by the same terms and conditions as were applicable under such NMB Option immediately prior to the Reincorporation Merger Effective Time.
Appears in 1 contract
Samples: Merger Agreement (FCB Bancorp)
Treatment of Options. (ai) Each RemainCo Option that is outstanding immediately prior Prior to the Effective Time Closing, the Company’s Board of Directors (or, if appropriate, any committee thereof administering the Equity Incentive Plan) shall adopt such resolutions or take such other actions as may be required to adjust the terms of all In-the-Money Vested Company Options and held by a RemainCo EmployeeIn-the-Money Unvested Company Options as necessary to provide that, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of at the First Effective Time, into both a Post-Separation RemainCo each Company Option and a SpinCo Option and each such award shall be converted into (A) an option to acquire, subject to substantially the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as the terms and conditions were applicable to under such RemainCo Option immediately prior to the Effective Time; providedCompany Option, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
(i) the number of shares of RemainCo Parent Class A Common Stock subject to such Post-Separation RemainCo Option shall be equal to the product, (rounded down to the nearest whole share), obtained determined by multiplying (A) the number of shares of RemainCo Company Common Stock subject to the corresponding RemainCo such Company Option as of immediately prior to the First Effective Time by the Conversion Ratio applicable to Company Common Stock, at an exercise price per share of Parent Common Stock (rounded up to the nearest whole cent) equal to (x) the exercise price per share of Company Common Stock of such Company Option divided by (y) the Conversion Ratio applicable to Company Common Stock (a “Converted Stock Option”), (B) except for Pre-Closing Options, the RemainCo Value Factorright to receive a number of Earnout Shares in accordance with, and subject to the contingencies, set forth in Section 3.7 and (C) except Pre-Closing Options, the right to receive a number of Warrant Shares in accordance with, and subject to, the Form of Warrant, attached hereto as Exhibit E; and
(ii) At the number First Effective Time, Parent shall assume all obligations of shares of SpinCo Common the Company under the Equity Incentive Plan, each outstanding Converted Stock subject to such SpinCo Option and the agreements evidencing the grants thereof; provided, that each Company Option that is not an In-the-Money Company Option shall be equal cancelled without any consideration therefor. As soon as practicable after the First Effective Time, Parent shall deliver to the productholders of Converted Stock Options appropriate notices setting forth such holders’ rights, rounded down to and the nearest whole share, obtained by multiplying agreements evidencing the grants of such Converted Stock Option shall continue in effect on substantially the same terms and conditions (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior adjustments required by this Section 3.2(a) after giving effect to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo RatioFirst Merger).
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the Code.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (EdtechX Holdings Acquisition Corp. II)
Treatment of Options. (ai) Each RemainCo Option that is outstanding immediately prior to the Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Effective Time, into both a Post-Separation RemainCo Option and a SpinCo Option and each such award shall be subject to the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as the terms and conditions applicable to such RemainCo Option immediately Immediately prior to the Effective Time; provided, howevereach outstanding stock option granted to present and former employees and non-employee directors of the Company and its Subsidiaries (together, an "Option"), whether or not then exercisable, which Option has an exercise price per share that certain restrictions may is less than the value of the per share Merger Consideration on the Closing Date (based on the closing sales price on the Closing Date of Parent Common Stock on the NYSE Composite Transactions Tape (as reported in The Wall Street Journal or, if not reported therein, in another authoritative source mutually selected by Parent and the Company) (the "Closing Consideration Value"), shall be imposed on such Post-Separation RemainCo Option or SpinCo Option after canceled by the Company, and the holder thereof shall be entitled to receive at the Effective Time if necessary and appropriate or as soon as practicable thereafter from the Company in consideration for such cancellation an amount in cash equal to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
product of (i) the number of shares of RemainCo Company Common Stock previously subject to such Post-Separation RemainCo Option and (ii) the excess of the Merger Consideration over the exercise price per share of Company Common Stock previously subject to such Option.
(ii) Immediately prior to the Effective Time, each outstanding Option, whether or not then exercisable, which Option has an exercise price per share that is greater than the per share Closing Consideration Value (each, an "Underwater Option"), shall be converted into an option to acquire, on the same terms and conditions (including exercise price) as previously applicable to such Underwater Options, the per share Closing Consideration Value for each share of Company Common Stock previously subject to such Underwater Option (after any such adjustment, a "Parent Option"); provided, however, that the Parent Option shall be equal further adjusted to (i) reduce the exercise price of the Parent Option by the value of the cash portion of the Closing Consideration Value, (ii) eliminate the requirement that the cash portion of the Closing Consideration Value be delivered upon exercise of the Parent Option, and (iii) with respect to each Parent Option having the same exercise price, the number of any fractional shares of Parent Common Stock shall be added together to create whole shares of Parent Common Stock, and the per share exercise price of each Parent Option shall be appropriately adjusted. The aggregate number of shares of Parent Common Stock delivered pursuant to the product, Parent Option shall be rounded down to the nearest whole share.
(b) As soon as practicable after the Effective Time, obtained by multiplying (A) Parent shall deliver to the holders of Company Options appropriate notices setting forth such holders' rights pursuant to the Company Stock Option Plans after giving effect to the transaction and the provisions set forth above. In addition, Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of RemainCo Parent Common Stock subject for delivery upon exercise of a Parent Option. As soon as practicable after the Effective Time, Parent shall file a registration statement on Form S-3 or Form S-8, as the case may be (or any successor or other appropriate forms), or another appropriate form, with respect to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) the number of shares of SpinCo Parent Common Stock subject to such SpinCo Option Parent Options and shall use its reasonable best efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Parent Options remain outstanding.
(c) The Company shall use its reasonable best efforts to take such actions as are reasonably necessary to provide that (i) other than as contemplated hereunder no further issuance, transfer or grant of any capital stock of the Company or any interest in respect of any capital stock of the Company shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to made on or after the Effective Time by under any Company Stock Plan and (Bii) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to following the Effective Time, no holder of an Option or any participant in any Company Stock Option Plan or other Company Plan shall have the exercise price, the number of shares of RemainCo Common Stock subject right thereunder to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) acquire any capital stock of the CodeCompany or the Surviving Corporation.
Appears in 1 contract
Treatment of Options. (a) Each RemainCo Option that is outstanding immediately prior At the Closing, the Seller shall deliver checks in an amount equal to the Effective Time aggregate Option Payment Amounts (as defined below) (minus any applicable employee withholding Taxes withheld from the Option Payment Amounts, the "OPTION WITHHOLDING TAX AMOUNT") (the "OPTION CONSIDERATION") to all holders (each, an "OPTION HOLDER" and collectively, the "OPTION HOLDERS") of options granted by the Company obligating the Company to issue, transfer or sell any shares of common stock of the Company (each, an "OPTION" and collectively the "OPTIONS") to cause the rights of each Option Holder to be converted into the right to receive the Option Payment Amount (as defined below) set forth opposite such Option Holder's name on SECTION 2.8 OF THE DISCLOSURE SCHEDULE, and the Seller shall simultaneously deliver to the: (i) appropriate Taxing Authorities the Option Withholding Tax Amount and the applicable employer share of employment Taxes due on the Option Payment Amounts, if any and (ii) Company evidence of such delivery promptly thereafter.
(b) Each Option Holder shall execute and deliver to the Company an Option Conversion Agreement in the form attached hereto as Exhibit E (an "OPTION CONVERSION AGREEMENT") and all Options held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director such Option Holder shall be convertedterminated, as and the Option Holder shall receive, in complete satisfaction of the Effective Time, into both a Post-Separation RemainCo such Option and a SpinCo Option and each such award shall be subject to the same terms and conditions (including Holder's rights with respect to vesting and expirationsuch Options, an amount (the "OPTION PAYMENT AMOUNT") after the Effective Time as the terms and conditions applicable payable to such RemainCo Option immediately prior to Holder in the Effective Time; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary form of a cashiers check and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Timecalculated as follows:
(i) the number of shares of RemainCo Common Stock subject common stock of the Company issuable to such Post-Separation RemainCo Option shall be equal to Holder, assuming exercise in full of such Options on the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; andClosing Date;
(ii) multiplied by $18.155 (the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor"PER OPTION PRICE");
(iii) minus (x) the per share aggregate exercise price (disregarding Options being cancelled pursuant to the next following sentence) of all Options held by such Option Holder on the Closing Date and (y) the Option Withholding Tax Amount applicable to such Options. If the exercise price of an Option is greater than the Per Option Price, such Post-Separation RemainCo Option shall be equal canceled without payment.
(c) If an Option Holder shall fail to execute and deliver to the quotientCompany, rounded up on or prior to the nearest centClosing Date, obtained an Option Conversion Agreement with respect to all Options held by dividing such Option Holder on the Closing Date (Asuch Option Holder, a "NON-EXERCISING OPTION HOLDER"), the Seller may exercise (or cause the Company to exercise) its right under the per share exercise price of option agreement pursuant to which such Options were issued (each a "STOCK OPTION AGREEMENT" and collectively, the corresponding RemainCo "STOCK OPTION AGREEMENTS") to purchase all Options held by such Option Holder immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be Closing Date for an amount equal to such Option Holder's Option Payment Amount (minus the quotientOption Withholding Tax Amount) payable to such Option Holder in the form of a promissory note ("NON-EXERCISING OPTION HOLDER NOTE") payable by the Company, rounded up bearing interest at the publicly announced prime rate of Credit Suisse First Boston, as publicly reported from time to time, on the nearest centdate of issuance and payable to such Non-Exercising Option Holder in five (5) equal annual installments, obtained by dividing (A) substantially in the per share exercise price form of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo RatioExhibit G attached hereto.
(bd) Notwithstanding anything Each Option Holder shall, on the Closing Date, cease to have any rights as an Option Holder (other than rights to receive the contrary payments provided for in this Section 4.1, 2.8) and each Option Holder shall cease to have any rights under the exercise price, Company's 1998 Stock Option Plan or the number of shares of RemainCo Common Stock subject Option Agreements (other than to each Post-Separation RemainCo Option and receive the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined payment provided for in a manner consistent with the requirements of this Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the Code2.8).
Appears in 1 contract
Treatment of Options. (ai) Each RemainCo Option that is outstanding immediately prior to the Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of At the Effective Time, into both a Post-Separation RemainCo each holder of an option (collectively, "Sun Options") to purchase shares of Sun Common Stock that (i) is outstanding at the Effective Time, (ii) has been granted pursuant to Sun's 1998 Stock Incentive Plan or 1998 Independent Directors Stock Option Plan or the Sentry Plans; and a SpinCo Option and each such award shall be subject to the same terms and conditions (including with respect to vesting and expirationiii) after would otherwise survive the Effective Time as shall be entitled to receive, in substitution for such Sun Option, an option to acquire shares of Omega Common Stock on the terms and conditions applicable set forth below (each Sun Option as substituted, an "Omega Option").
(ii) An Omega Option shall be a stock option to such RemainCo Option immediately prior to acquire shares of Omega Common Stock with the Effective Time; provided, however, that certain restrictions may be imposed on such Post-Separation RemainCo Option or SpinCo Option after the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
following terms: (i) the number of shares of RemainCo Omega Common Stock subject which may be acquired pursuant to such Post-Separation RemainCo Omega Option shall be equal to the productproduct of the number of shares of Sun Common Stock covered by the corresponding Sun Option multiplied by 0.664, provided that any fractional share of Omega Common Stock resulting from such multiplication shall be rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) the number exercise price per share of shares of SpinCo Omega Common Stock subject to such SpinCo issuable upon exercise of the Omega Option shall be equal to the productexercise price of the corresponding Sun Option immediately prior to the conversion thereof to an Omega Option, divided by 0.664, provided that such exercise price shall be rounded down to the nearest whole sharecent; (iii) the duration and other terms of such Omega Option shall be identical to the duration and other terms of the corresponding Sun Option immediately prior to the conversion thereof to an Omega Option, obtained except that all references to Sun shall be deemed to be references to Omega and its affiliates, where the context so requires and shall remain exercisable until the stated expiration date of the corresponding Sun Option; (iv) Omega shall assume such Sun Option, whether vested or not vested, as contemplated by multiplying the Code; and (Av) to the extent Sun Options qualify as incentive stock options under Section 422 of the Code, the Omega Options exchanged therefor shall also so qualify.
(iii) On or within 15 days after the Effective Time, Omega shall take appropriate action to reserve for issuance and, if not previously registered pursuant to the Securities Act, register the number of shares of RemainCo Omega Common Stock subject necessary to satisfy Omega's obligations with respect to the corresponding RemainCo Option immediately prior issuance of Omega Common Stock pursuant to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the CodeOmega Options.
Appears in 1 contract
Treatment of Options. (ai) Each RemainCo Option that is outstanding immediately prior to the Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Effective Time, into both a Post-Separation RemainCo Option and a SpinCo Option and each such award shall be subject to the same terms and conditions (including with respect to vesting and expiration) after the Effective Time as the terms and conditions applicable to such RemainCo Option immediately Immediately prior to the Effective Time; provided, howevereach outstanding stock option granted to present and former employees and non-employee directors of the Company and its Subsidiaries (together, an "OPTION"), whether or not then exercisable, which Option has an exercise price per share that certain restrictions may is less than the value of the per share Merger Consideration on the Closing Date (based on the closing sales price on the Closing Date of Parent Common Stock on the NYSE Composite Transactions Tape (as reported in THE WALL STREET JOURNAL or, if not reported therein, in another authoritative source mutually selected by Parent and the Company) (the "CLOSING CONSIDERATION VALUE"), shall be imposed on such Post-Separation RemainCo Option or SpinCo Option after canceled by the Company, and the holder thereof shall be entitled to receive at the Effective Time if necessary and appropriate or as soon as practicable thereafter from the Company in consideration for such cancellation an amount in cash equal to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
product of (i) the number of shares of RemainCo Company Common Stock previously subject to such Post-Separation RemainCo Option and (ii) the excess of the Merger Consideration over the exercise price per share of Company Common Stock previously subject to such Option.
(ii) Immediately prior to the Effective Time, each outstanding Option, whether or not then exercisable, which Option has an exercise price per share that is greater than the per share Closing Consideration Value (each, an "UNDERWATER OPTION"), shall be converted into an option to acquire, on the same terms and conditions (including exercise price) as previously applicable to such Underwater Options, the per share Closing Consideration Value for each share of Company Common Stock previously subject to such Underwater Option (after any such adjustment, a "PARENT OPTION"); PROVIDED, HOWEVER, that the Parent Option shall be equal further adjusted to (i) reduce the exercise price of the Parent Option by the value of the cash portion of the Closing Consideration Value, (ii) eliminate the requirement that the cash portion of the Closing Consideration Value be delivered upon exercise of the Parent Option, and (iii) with respect to each Parent Option having the same exercise price, the number of any fractional shares of Parent Common Stock shall be added together to create whole shares of Parent Common Stock, and the per share exercise price of each Parent Option shall be appropriately adjusted. The aggregate number of shares of Parent Common Stock delivered pursuant to the product, Parent Option shall be rounded down to the nearest whole share.
(b) As soon as practicable after the Effective Time, obtained by multiplying (A) Parent shall deliver to the holders of Company Options appropriate notices setting forth such holders' rights pursuant to the Company Stock Option Plans after giving effect to the transaction and the provisions set forth above. In addition, Parent shall take all corporate action necessary to reserve for issuance a sufficient number of shares of RemainCo Parent Common Stock subject for delivery upon exercise of a Parent Option. As soon as practicable after the Effective Time, Parent shall file a registration statement on Form S-3 or Form S-8, as the case may be (or any successor or other appropriate forms), or another appropriate form, with respect to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Value Factor; and
(ii) the number of shares of SpinCo Parent Common Stock subject to such SpinCo Option Parent Options and shall use its reasonable best efforts to maintain the effectiveness of such registration statement or registration statements (and maintain the current status of the prospectus or prospectuses contained therein) for so long as such Parent Options remain outstanding.
(c) The Company shall use its reasonable best efforts to take such actions as are reasonably necessary to provide that (i) other than as contemplated hereunder no further issuance, transfer or grant of any capital stock of the Company or any interest in respect of any capital stock of the Company shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to made on or after the Effective Time by under any Company Stock Plan and (Bii) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to following the Effective Time, no holder of an Option or any participant in any Company Stock Option Plan or other Company Plan shall have the exercise price, the number of shares of RemainCo Common Stock subject right thereunder to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) acquire any capital stock of the CodeCompany or the Surviving Corporation.
Appears in 1 contract
Treatment of Options. Except as otherwise provided in the last sentence of this Section 2.4(c), upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time, by virtue of the Merger and pursuant to the terms of the Blizzard 2006 Equity Incentive Plan, as amended (athe “Blizzard Equity Plan”), (i)(A) Each RemainCo each outstanding and unexercised option to acquire shares of Blizzard Stock (“Blizzard Options”) which was vested immediately prior to the Effective Time shall be canceled and extinguished and automatically converted into the right to receive an amount in cash from the Surviving Corporation equal to the product obtained by multiplying (x) the aggregate number of shares of Blizzard Stock that were issuable upon exercise of such Blizzard Option that is outstanding immediately prior to the Effective Time and held by a RemainCo Employee(y) the excess, former RemainCo Employeeif any, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Effective TimeBlizzard Per Share Value over the per share exercise price of such Blizzard Option (the “Blizzard Option Consideration”), into both a Post-Separation RemainCo Option and a SpinCo Option and (B) each such award shall be subject to the same terms and conditions outstanding share of restricted Blizzard Stock (including with respect to vesting and expiration“Blizzard Restricted Stock”) after the Effective Time as the terms and conditions applicable to such RemainCo Option or shares thereof underlying restricted stock units which was vested immediately prior to the Effective TimeTime shall be canceled and extinguished and automatically converted into the right to receive an amount in cash from the Surviving Corporation equal to the Blizzard Per Share Value (the “Blizzard Stock Consideration”); provided, however, that certain restrictions may and (ii)(A) each outstanding and unexercised Blizzard Option which will vest upon the Merger at the Effective Time shall be imposed on such Post-Separation RemainCo Option or SpinCo Option cancelled and extinguished and automatically converted into the right to receive an amount in cash from the Surviving Corporation eighteen (18) months after the Effective Time if necessary and appropriate in accordance with the terms of the Blizzard Equity Plan equal to comply with applicable Law; and further, provided, however, that from and after the Effective Time:
product obtained by multiplying (ix) the aggregate number of shares of RemainCo Common Blizzard Stock subject to that were issuable upon exercise of such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Blizzard Option immediately prior to the Effective Time by and (y) the Blizzard Option Consideration and (B) the RemainCo Value Factor; and
(ii) the number each share of shares of SpinCo Common Blizzard Restricted Stock subject to such SpinCo Option shall be cancelled and extinguished and automatically converted into the right to an amount in cash from the Surviving Corporation eighteen (18) months after the Effective Time equal to the productBlizzard Stock Consideration. Activision shall, rounded down or shall cause the Surviving Corporation to, pay to the nearest whole share, obtained by multiplying holders of outstanding Blizzard Options and Blizzard Restricted Stock (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price as of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the RemainCo Ratio;
(iv) the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option immediately prior to the Effective Time by (B) the SpinCo Ratio.
(b) Notwithstanding anything to the contrary in this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of time immediately prior to the Effective Time) the Blizzard Option Consideration and/or Blizzard Stock Consideration, as applicable, in respect of their Blizzard Options and shares of Blizzard Restricted Stock in accordance with terms and conditions of the exercise priceBlizzard Equity Plan as in effect immediately prior to the Effective Time. The payment of the Blizzard Option Consideration and/or Blizzard Stock Consideration to the holder of Blizzard Options and/or Blizzard Restricted Stock shall be reduced by any income or employment tax withholding required under the Code or any provision of state, local or foreign tax Law. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of such Blizzard Options and/or Blizzard Restricted Stock. Notwithstanding anything herein to the contrary, as to any Blizzard Options that are granted after the date of this Agreement and prior to the Closing Date in accordance with Section 6.2(b) hereof, Activision and the other Parties shall take such actions as may be necessary to provide for the conversion on or after the Closing Date of such Blizzard Options into options to acquire an equivalent number of shares of RemainCo Activision Common Stock subject (with such adjustments to the Post-Separation RemainCo Option and the number share numbers and/or strike prices of such replacement options to acquire shares of SpinCo Activision Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner as are consistent with the requirements value of Section 424(a) such Blizzard Options as of the CodeClosing Date).
Appears in 1 contract
Samples: Business Combination Agreement (Activision Inc /Ny)
Treatment of Options. (a) Schedule 2.05(a) to this Agreement identifies each currently outstanding share option grant notice and option agreement or other share option agreement evidencing the grant of an option to purchase Company Shares (each a “Share Option”), including the name of the person to whom such Share Option was granted, the number of Company Shares underlying such Share Option, and the applicable exercise price per share. Each RemainCo Share Option shall be fully vested as of immediately prior to the Effective Time of the Merger. The Company shall prior to the Effective Time of the Merger cause or have caused each Share Option that is was outstanding immediately prior to the Effective Time and held by a RemainCo Employee, former RemainCo Employee, SpinCo Employee, former SpinCo Employee or a Xperi Director shall be converted, as of the Effective TimeMerger and that will not, into both a Post-Separation RemainCo Option by the terms of the applicable share option notice and a SpinCo Option and each such award shall option agreement or other stock option agreement by which it is governed, automatically cease to be subject to the same terms and conditions (including with respect to vesting and expiration) after exercisable following the Effective Time of the Merger, to be cancelled and to cease to exist following the Effective Time of the Merger in exchange for Parent’s payment of the amounts set forth in Section 2.05(b) below.
(b) At the Closing, in exchange for the cancellation of the Share Options as set forth in Section 2.05(a) above, Parent shall pay to the terms and conditions applicable Company by wire transfer of immediately available funds an amount equal to the sum of each Optionholder’s Pro Rata Cash Closing Interest minus the Aggregate Option Exercise Price. The Company shall promptly pay to each Optionholder an amount equal to (i) such RemainCo Option Optionholder’s Pro Rata Cash Closing Interest multiplied by the number of Company Shares underlying Share Options held by such Optionholder immediately prior to the Effective Time; provided, however, that certain restrictions may be imposed on Time of the Merger less (ii) the sum of the product (computed separately for each Share Option held by such Post-Separation RemainCo Option or SpinCo Option after Optionholder immediately prior to the Effective Time if necessary and appropriate to comply with applicable Law; and further, provided, however, that from and after of the Effective Time:
(iMerger) of the exercise price per Company Share for such Share Option times the number of shares of RemainCo Common Stock Company Shares subject to such Post-Separation RemainCo Option shall be equal to the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Share Option immediately prior to the Effective Time by of the Merger, less (Biii) all applicable federal, state, local and foreign withholding Taxes, provided that the RemainCo Value FactorCompany shall pay over such withheld amounts to the appropriate Governmental Entity; andit being understood and agreed that each Optionholder shall, subject to the adjustment in Section 2.02(f), be entitled to receive that amount pursuant to this Section 2.05(b) (before applicable tax withholding) that is set forth opposite the name of such holder on Schedule 2.03(c), and in the event of any discrepancy between the amount that would be due to any Optionholder in respect of any such payment pursuant to this Section 2.05(b) (before applicable tax withholding) and the amount that would be due to such Shareholder as set forth on Schedule 2.03(c) (before applicable tax withholding), the amount set forth on Schedule 2.03(c) shall prevail.
(iic) At such times or times as the Shareholders are entitled to receive their Pro Rata Escrow Interest, Pro Rata Earn Out Interest or Pro Rata Reserve Interest, if any, with respect to each Company Share or the Pro Rata Retention Payment Interest, Parent shall pay to the Surviving Company by wire transfer of immediately available funds an amount equal to the sum of the Pro Rata Escrow Interest, Pro Rata Earn Out Interest or Pro Rata Reserve Interest, as applicable, multiplied by the number of shares of SpinCo Common Stock subject to such SpinCo Option shall be equal to Company Shares underlying the product, rounded down to the nearest whole share, obtained by multiplying (A) the number of shares of RemainCo Common Stock subject to the corresponding RemainCo Option Share Options outstanding immediately prior to the Effective Time by (B) the SpinCo Value Factor;
(iii) the per share exercise price of such Post-Separation RemainCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price of the corresponding RemainCo Option Merger or the Pro Rata Retention Payment Interest for each Optionholder, as applicable and the Surviving Company shall promptly pay to each such Optionholder, the Pro Rata Escrow Interest, Pro Rata Earn Out Interest or Pro Rata Reserve Interest, as applicable, multiplied by the number of Company Shares underlying the Share Options held by such Optionholder immediately prior to the Effective Time of the Merger or such Optionholder’s Pro Rata Retention Payment Interest, as applicable, less any withholding Taxes required under the Code or any applicable legal requirement to be deducted and withheld, provided that the Surviving Company shall pay over such withheld amounts to the appropriate Governmental Entity; it being understood and agreed that (i) each Optionholder shall, subject to the terms of Article II hereof, be entitled to receive that percentage of each of the Escrow Fund, Reserve Amount, and Earn Out Payments, and that amount of the Retention Payment that is set forth opposite the name of such Optionholder on Schedule 2.03(c), and (ii) in the event of any discrepancy between the amount that would be due to any Optionholder in respect of any such payment pursuant to this Section 2.05(c) (before applicable tax withholding) and the amount that would be due to such Optionholder as set forth on (or as determined by reference to the percentage set forth on) Schedule 2.03(c) (Bbefore applicable tax withholding), the amount Set forth on (or the amount determined by reference to the percentage set forth on) the RemainCo Ratio;Schedule 2.03(c) shall prevail.
(ivd) On or before the per share exercise price of such SpinCo Option shall be equal to the quotient, rounded up to the nearest cent, obtained by dividing (A) the per share exercise price Effective Time of the corresponding RemainCo Option immediately prior Merger all plans, programs, arrangements and policies providing for the issuance or grant of any interest in respect of any shares of the Company shall terminate on or before the Effective Time of the Merger.
(e) Prior to the Effective Time by (B) of the SpinCo Ratio.
(b) Notwithstanding anything Merger, the board of directors of the Company shall adopt such resolutions or take such actions as are necessary to carry out the contrary in terms of this Section 4.1, the exercise price, the number of shares of RemainCo Common Stock subject to each Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, as applicable, and the terms and conditions of exercise of such options, shall be determined in a manner consistent with the requirements of Section 409A of the Code; provided, that, in the case of any RemainCo Option to which Section 421 of the Code applies by reason of its qualification under Section 422 of the Code as of immediately prior to the Effective Time, the exercise price, the number of shares of RemainCo Common Stock subject to the Post-Separation RemainCo Option and the number of shares of SpinCo Common Stock subject to the SpinCo Option, and the terms and conditions of exercise of such options shall be determined in a manner consistent with the requirements of Section 424(a) of the Code2.05.
Appears in 1 contract
Samples: Merger Agreement
