Unvested Options Each unvested outstanding Company Option held by a Continuing Employee (each an “Unvested Company Option”) shall be assumed by Parent (the “Assumed Options”) and will continue to have, and be subject to, the same terms and conditions set forth in the applicable Unvested Company Option documents (including any applicable Company Option Plan and stock option agreement or other document evidencing such Unvested Company Option, including but not limited to any employment or other agreement providing for accelerated vesting or other terms governing such Assumed Options) immediately prior to the Effective Time (including any repurchase rights or vesting provisions), except that (i) each such Unvested Company Option will be exercisable (or will become exercisable in accordance with its terms) for that number of whole shares of Parent Stock equal to the product of the number of shares of Company Common Stock that were subject to such Unvested Company Option immediately prior to the Effective Time multiplied by the Conversion Rate (rounded down to the next whole number of shares of Parent Stock, with no cash being payable for any fractional share eliminated by such rounding), and (ii) the per share exercise price for the shares of Parent Stock issuable upon exercise of such assumed Unvested Company Option will be equal to the quotient determined by dividing the exercise price per share of Company Common Stock at which such Unvested Company Option was exercisable immediately prior to the Effective Time by the Conversion Rate, rounded up to the nearest whole cent. The assumption and conversion of Unvested Company Options by Parent are intended to satisfy the requirements of Treasury Regulations Section 1.424-1 (to the extent such options were incentive stock options) and of Treasury Regulations Section 1.409A-1(b)(5)(v)(D). Following the Effective Time, the Board of Directors of Parent or a committee thereof shall succeed to the authority and responsibility of the Board of Directors of Company or any committee thereof with respect to each Assumed Option and references to Company shall become references to Parent under the applicable Company Option Plan and stock option agreement or other document evidencing such Assumed Option. Each unvested outstanding Company Option that is not an Unvested Company Option shall be treated as a Cancelled Option and shall be cancelled and extinguished, with no consideration payable in connection with such cancellation and no further rights to the holder thereof, at the Effective Time.
Stock Option Subject to approval by the Board, the Company will grant Executive, during the fourth calendar quarter of 2015 (and subject to Executive’s continued employment with the Company through the grant date), under the Company’s 2015 Equity Incentive Plan (the “Plan”), an incentive stock option to purchase 130,444 shares of Company common stock (an “Option”), with an exercise price equal to $1.12 per share, which is equal to the fair market value of the shares of Company common stock underlying the Option on the grant date. Subject to Executive’s continued employment with the Company through the applicable vesting date, the Option will vest and become exercisable with respect to one-forty-eighth (1/48th) of the shares subject thereto on each monthly anniversary of January 1, 2016. Notwithstanding the foregoing, if the Company experiences a Change in Control (as defined in the Plan) prior to the full vesting (or forfeiture) of the Option and Executive’s employment is terminated by the Company without Cause (as defined below) within three (3) months prior to the consummation of such Change in Control, then, subject to Section 6(b) below, one hundred percent (100%) of any then-unvested portion of the Option will vest and become exercisable immediately prior to such Change in Control. In addition, (i) if the Company experiences a Change in Control (as defined in the Plan) prior to the full vesting (or forfeiture) of the Option and Executive remains employed by the Company through at least immediately prior to such Change in Control, fifty percent (50%) of any then-unvested portion of the Option shall vest immediately prior to such Change in Control, and (ii) if the Company experiences a Change in Control (as defined in the Plan) prior to the full vesting (or forfeiture) of the Option and Executive’s employment is terminated by the Company without Cause within two (2) years following the consummation of such Change in Control, subject to and conditioned upon Executive’s timely execution and non-revocation of a Release (as defined below), one hundred percent (100%) of any then-unvested portion of the Option will vest in full and become exercisable upon the effectiveness of the Release. Each Option will be subject in all respects to the terms and conditions set forth in the Plan and in an award agreement to be entered into between the Company and Executive, which will evidence the grant of the Option (each, an “Option Agreement”).
Top-Up Option (a) Subject to Sections 1.04(b) and 1.04(c), the Company grants to Merger Subsidiary an option, for so long as this Agreement has not been terminated pursuant to the provisions hereof (the “Top-Up Option”), to purchase from the Company, up to the number of authorized and unissued Shares, the number of Shares that, when added to the number of Shares owned by Merger Subsidiary at the time of exercise of the Top-Up Option, constitutes one Share more than 90% of the Shares that would be outstanding immediately after the issuance of all Shares to be issued upon exercise of the Top-Up Option, calculated on a fully-diluted basis (the Shares to be issued upon exercise of the Top-Up Option, the “Top-Up Shares”).
(b) The Top-Up Option may be exercised by Merger Subsidiary in accordance with Section 1.04(c), in whole or in part, only once, at any time during the 10 Business Day period following the Acceptance Date, or if any Subsequent Offering Period is provided, during the 10 Business Day period following the expiration date of such Subsequent Offering Period, and only if Merger Subsidiary shall own as of such time less than 90% of the outstanding Shares; provided that notwithstanding anything in this Agreement to the contrary, the Top-Up Option shall not be exercisable (i) to the extent the number of Shares issuable upon exercise of the Top-Up Option would exceed the number of authorized but unissued and unreserved Shares, (ii) unless immediately following the exercise of the Top-Up Option, the number of shares of the Company Common Stock owned in the aggregate by Parent and Merger Subsidiary constitutes at least one share more than 90% of the number of shares of Company Common Stock that would be outstanding immediately after the issuance of all shares of Company Common Stock subject to such exercise of the Top-Up Option, or (iii) unless the Minimum Condition shall have been satisfied. The aggregate purchase price payable for the Top-Up Shares being purchased by Merger Subsidiary pursuant to the Top-Up Option shall be determined by multiplying the number of such Shares by an amount equal to the price paid for each Share in the Offer, without interest. Such purchase price shall be payable by Merger Subsidiary (A) in cash, (B) by executing and delivering to the Company a promissory note having a principal amount equal to the purchase price, or (C) any combination of the foregoing. Any such promissory note shall bear interest at the rate of 6% per annum, shall mature on the first anniversary of the date of execution and delivery of such promissory note and may be prepaid without premium or penalty; provided, however, that upon any Event of Default, all principal and accrued interest thereunder shall immediately become due and payable.
(c) In the event Merger Subsidiary wishes to exercise the Top-Up Option, Merger Subsidiary shall deliver to the Company a notice (the “Top-Up Notice”) setting forth (i) the number of Top-Up Shares that Merger Subsidiary intends to purchase pursuant to the Top-Up Option and (ii) the place and time at which the closing of the purchase of such Top-Up Shares by Merger Subsidiary is to take place. The Top-Up Notice shall also include an undertaking signed by Parent and Merger Subsidiary that, as promptly as practicable following such exercise of the Top-Up Option, Merger Subsidiary intends to (and Merger Subsidiary shall, and Parent shall cause Merger Subsidiary to, as promptly as practicable after such exercise) consummate the Merger in accordance with Section 253 of Delaware Law as contemplated by Section 9.05. At the closing of the purchase of the Top-Up Shares, Parent and Merger Subsidiary shall cause to be delivered to the Company the consideration required to be delivered in exchange for the Top-Up Shares, and the Company shall cause to be issued to Merger Subsidiary a certificate representing the Top-Up Shares or, at Parent’s or Merger Subsidiary’s request or otherwise if the Company does not then have certificated shares of Company Common Stock, the applicable number of non-certificated shares of Company Common Stock represented by book-entry. The parties hereto agree to use their reasonable best efforts to cause the closing of the purchase of the Top-Up Shares to occur on the same day that the Top-Up Notice is deemed received by the Company pursuant to Section 12.01, and if not so consummated on such day, as promptly thereafter as possible. The parties further agree to use their reasonable best efforts to cause the Merger to be consummated in accordance with Section 253 of Delaware Law as contemplated by Section 9.05 as close in time as possible to (including, to the extent possible, on the same day as) the issuance of the Top-Up Shares.
(d) Parent and Merger Subsidiary understand that the Top-Up Shares will not be registered under the 1933 Act and will be issued in reliance upon an exemption thereunder for transactions not involving a public offering. Each of Parent and Merger Subsidiary represents, warrants and agrees that the Top-Up Option is being, and the Top-Up Shares will be, acquired by Merger Subsidiary for the purpose of investment and not with a view to or for resale in connection with any distribution thereof within the meaning of the 1933 Act. Any certificates evidencing Top-Up Shares may include any legends required by applicable securities laws.
Option; Option Price On the terms and subject to the conditions of the Plan and this Agreement, including, without limitation, Section 18 of this Agreement, the Optionee shall have the option (the “Option”) to purchase Shares at the price per Share (the “Option Price”) and in the amounts set forth on the signature page hereto. Payment of the Option Price may be made in the manner specified by Section 5.9 of the Plan. The Option is not intended to qualify for federal income tax purposes as an “incentive stock option” within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”). Except as otherwise provided in Section 7 of this Agreement, the Option shall remain exercisable as to all Vested Options (as defined in Section 4) until the expiration of the Option Term (as defined in Section 3). Except as otherwise provided in the Plan or this Agreement, upon a Termination of Relationship, the unvested portion of the Option (i.e., that portion which does not constitute Vested Options) shall terminate.
Option (a) In order to induce Parent and Purchaser to enter into the Merger Agreement, Stockholder hereby grants to Purchaser an irrevocable option (a "SECURITIES OPTION") to purchase the Securities (the "OPTION SECURITIES") at the Offer Price, subject to increase as set forth below (the "PURCHASE PRICE"). The Securities Option may be exercised, in whole but not in part, by written notice to Stockholder (as set forth below), for a period of ten (10) business days (the "10 DAY PERIOD") following termination of the Merger Agreement or termination of the Offer, whichever shall first occur; PROVIDED that, prior to such termination, either (i) a Trigger Event shall have occurred or (ii) (A) the Company shall have received a written proposal from any person other than Parent, Purchaser or any affiliate of Parent or Purchaser for an Acquisition Transaction, which proposal shall not have expired or been withdrawn, (B) the Merger Agreement shall have been terminated by Parent pursuant to Section 8.01(b), 8.01(d)(ii), 8.01(f) or 8.01(g) and (C) at the time of such termination the Minimum Condition shall not have been satisfied. Notwithstanding the foregoing, the Securities Option may not be exercised until: (i) all waiting periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR ACT"), required for the purchase of the Securities upon such exercise shall have expired or been waived and any other conditions under the other Antitrust Laws shall have been satisfied and (ii) there shall not be in effect any preliminary injunction or other order issued by any Governmental Entity prohibiting the exercise of the Securities Option pursuant to this Agreement; provided that if (i) all HSR Act waiting periods shall not have expired or been terminated or (ii) there shall be in effect any such injunction or order, in each case on the expiration of the 10 Day Period, the 10 Day Period shall be extended until five (5) business days after the later of (A) the date of expiration or termination of all HSR Act waiting periods, and (B) the date of removal or lifting of such injunction or order.
(b) In the event that Purchaser wishes to exercise the Securities Option, Purchaser shall send a written notice (the "NOTICE") to Stockholder identifying the date (not less than two (2) nor more than five (5) business days from the date of the Notice) for the closing of such purchase, which closing shall be held at the executive offices of the Company (or such other place as the parties may agree). At the closing, Stockholder shall deliver to Purchaser appropriate and effective instruments of transfer of the Option Securities, against payment to Stockholder of the Purchase Price, in same day funds, by wire transfer to such account as Stockholder shall designate.
(c) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option (the "ACQUIRED SECURITIES") and, either before or at any time within the one-year period following such acquisition, Parent, Purchaser or any affiliate of Parent or Purchaser shall acquire Common Stock (other than from the Company) at a price in excess of the Purchase Price, then the Purchase Price hereunder shall be increased to such higher price. If the purchase of the Acquired Securities has been completed at the time of such increase, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such increase) pay to Stockholder, by wire transfer of same day funds to such account as Stockholder shall designate, the amount of the increase.
(d) In the event the Option Securities are acquired by Purchaser pursuant to the exercise of the Securities Option, Stockholder shall be entitled to receive, and Purchaser shall promptly (and in no event more than 48 hours following such Sale) pay to Stockholder, upon any subsequent disposition, transfer or sale to an unaffiliated third party ("SALE") of all or any portion of the Acquired Securities within the one-year period following such acquisition, an amount per share in cash equal to the excess, if any, of the net proceeds received per share in the Sale over the Purchase Price. Any such payment shall be made by wire transfer of same day funds to such account as Stockholder shall designate.
Vested Options Each vested outstanding Company Option that is outstanding as of immediately prior to the Effective Time (the “Cashed-Out Options”) shall be cancelled at the Effective Time and converted into the right to receive an amount in cash equal to the Option Consideration after which it shall be cancelled and extinguished. If the Per Share Conversion Common Amount does not exceed the per share exercise price of each such outstanding Company Option, then such Company Option shall be cancelled and extinguished, with no consideration payable in connection with such cancellation and no further rights to the holder thereof (the “Cancelled Options”) and such Company Option shall not be deemed a Cashed-Out Option. Company shall take any and all necessary action to provide for the cancellation of each Company Option in accordance with this Section 1.6(b)(i). As soon as reasonably practicable after the Effective Time, through its payroll system on a special payroll run on the Closing Date, the Surviving Corporation shall or shall direct its payroll agent to, in accordance with its customary payroll practices, pay to each holder of a Cashed-Out Option that was granted to the holder in the holder’s capacity as an employee of Company or any of its Subsidiaries for applicable employment Tax purposes (“Employee Cashed-Out Option Holder”) the applicable portion of the Option Consideration (subject to applicable withholding Taxes) payable in respect of each such Cashed-Out Option (“Employee Option Consideration”); provided, that, if any such Employee Cashed-Out Holder has not executed and delivered to Parent a Cashed-Out Option Agreement (a “Cashed-Out Option Agreement”) in substantially the form attached hereto as EXHIBIT I, as of such date, the payment to such Employee Cashed-Out Option Holder shall be made as soon as reasonably practicable following the execution and delivery to Parent of a Cashed-Out Option Agreement. Each holder of a Cashed-Out Option that was granted to the holder in the holder’s capacity as a non-employee service provider to Company or any of its Subsidiaries for applicable employment Tax purposes (“Non-Employee Cashed-Out Option Holder”) shall be paid the applicable portion of the Option Consideration by the Exchange Agent in the manner provided in Section 1.11. No interest shall accrue or be paid on the Option Consideration payable with respect to any Cashed-Out Options. In no event shall any Cashed-Out Option or Cancelled Option be assumed by Parent.
Employee Options A regular employee who is subject to displacement shall have the right to select one of the following options. Upon written presentation of the options, the employee shall have 3 full working days to select an option. This time limit may be extended by the mutual agreement of the Parties:
(a) accept training, if applicable; or
(b) accept placement in a vacant position, either within or outside the bargaining unit, in accordance with the provisions of this Article; or
(c) exercise the bumping rights referred to in this Article; or
(d) accept layoff, retaining the right to recall and to severance pay in accordance with this Agreement; or
(e) accept severance in accordance with Article 9.03 of this Agreement.
Option Exercise Price The per share price to be paid by Optionee in the event of an exercise of the Option will be $ .
NSO If the Optionee holds NSO Shares for at least one year, any gain realized on disposition of the Shares will be treated as long-term capital gain for federal income tax purposes.
Our Option If we give you written notice within 30 days after we receive your signed, sworn proof of loss, we may repair or replace any part of the damaged property with material or property of like kind and quality.
