Common use of Vested Company Options Clause in Contracts

Vested Company Options. No Vested Company Options shall be assumed or continued by Parent and the Company in connection with the Merger or the other transactions contemplated hereby. Each Vested Company Option outstanding as of immediately prior to the Effective Time shall be cancelled and converted automatically into the right to receive at the Effective Time with respect to each share subject thereto, subject to the execution and delivery by such Company Option Holder of an option cancellation agreement (which shall include a release) in a form mutually acceptable to Parent and the Company (an “Option Cancellation Agreement”), an amount in cash, without interest, equal to the excess, if any, of the Per Share Common Consideration for each share of Company Common Stock issuable upon the exercise in full of such Company Option over the per share exercise price of such Vested Company Option (such excess amount being hereinafter referred to as the “Vested Company Option Cash Out Amount”), subject to adjustment in accordance with Section 1.6. Vested Company Options with a per share exercise price greater than or equal to the Per Share Common Consideration shall be cancelled without consideration. The payment of the Vested Company Option Cash Out Amount to any holder of Vested Company Options shall be paid at such time(s) provided in this Agreement to the Surviving Corporation for further payment to the holders of Employee Company Options through the Surviving Corporation’s payroll processing system net of applicable Tax withholding and deductions, and in respect of Non-Employee Company Options, shall be paid to the Payment Agent for further payment to the Non-Employee Company Option Holders. For purposes of calculating the aggregate amount of consideration payable in respect of each Vested Company Option pursuant to this Section 1.3(c), (x) all shares of Company Common Stock issuable upon the exercise in full of the Vested Company Options held by each holder of Vested Company Options shall be aggregated and (y) the amount of cash to be paid to each such holder of Vested Company Options shall be rounded down to the nearest whole cent.

Vested Company Options. No Each Company Share Option (a “Vested Company Options shall be assumed or continued by Parent Option”) that is vested and the Company in connection with the Merger or the other transactions contemplated hereby. Each Vested Company Option outstanding as of immediately prior to the Effective Time shall automatically be cancelled exercised as of and converted automatically into the right to receive at the Effective Time with respect to each share subject thereto, subject to occurrence of the execution and delivery Closing. Such exercise shall be effected either by such Company Option Holder of an option cancellation agreement (which shall include a release) in a form mutually acceptable appropriate amendment to Parent and the Company (an “Option Cancellation Agreement”), an amount in cash, without interest, equal to Benefit Plan which forces the excess, if any, exercise of the Per Share Common Consideration for each share Vested Company Options as of the Closing or by voluntary exercise on the part of the holder of Vested Company Common Stock issuable upon Options. Such holders of Vested Company Options shall not be required to make payment of the exercise in full of such Company Option over the per share exercise price of such Vested Company Option (such excess amount being hereinafter referred to as Options at the “Vested Company Option Cash Out Amount”), subject to adjustment in accordance with Section 1.6. Vested Company Options with a per share exercise price greater than or equal to the Per Share Common Consideration shall be cancelled without consideration. The payment time of the Vested Company Option Cash Out Amount to any holder of Vested Company Options shall be paid at such time(s) provided in this Agreement to the Surviving Corporation for further payment to the holders of Employee Company Options through the Surviving Corporation’s payroll processing system net of applicable Tax withholding and deductionsexercise, and in respect of Non-Employee Company Optionsinstead the following shall apply: As soon as practicable after the Effective Time, the Parent shall be paid cause the Paying Agent to the Payment Agent for further payment transfer to the Non-Employee Company Option Holders. For purposes of calculating the aggregate amount of consideration payable in respect of each Vested Company Option pursuant to this Section 1.3(c), (x) all shares the 102 Trustee (in the case of Company Common Stock issuable upon the exercise in full of the Vested Company Options held by the 102 Trustee) or (y) the Company (in the case of all other Vested Company Options) the full Merger Consideration payable with respect to the Company Shares obtained upon exercise of such Vested Company Options, and the 102 Trustee or the Company, as the case may be, shall (i) transfer to the Company the full amount of the exercise price for such Company Vested Options, (ii) pay or cause to be paid the balance of the Merger Consideration to each former holder of Vested Company Options Options, less applicable deductions and withholding at the time of payment, which shall be aggregated and (y) transferred to the amount of cash applicable Tax authority. Notwithstanding the foregoing, the proceeds payable with respect to be paid to each such holder Company Shares obtained upon exercise of Vested Company Options which are held by the Section 102 Trustee shall be rounded down to held, paid and distributed by the nearest whole cent102 Trustee in accordance with applicable Law, including, without limitation, the provisions of Section 102 of the Israeli Tax Code and the regulations and rules promulgated thereunder and the Israeli Options Tax Ruling, if obtained.

Vested Company Options. No Vested Company Options shall be assumed or continued by Parent and Prior to the Closing, the Company in connection with the Merger or the other transactions contemplated hereby. Each shall take all necessary action so that each Vested Company Option that is outstanding as of immediately prior to the Effective Time shall be cancelled and converted automatically into the right to receive extinguished at the Effective Time with respect to without any further action on the part of Parent, Merger Sub or the Company, and (contingent upon each share subject thereto, subject to the execution and delivery by former holder of such Vested Company Option Holder of executing and delivering an option cancellation agreement (which shall include a release) in a form mutually acceptable to Parent and the Company (an “Option Cancellation Agreement”), in substantially the form attached as Exhibit G hereto, to the Company prior to the Effective Time) such former holder of such Vested Company Option shall be entitled to receive (without interest and subject to applicable Tax withholding pursuant to Section 1.9) an amount in cash, without interest, cash equal to to: (x) the excessamount, if any, of by which the Per Share Common Participating Consideration for each share of Company Common Stock issuable upon the exercise in full of such Company Option over exceeds the per share exercise price of such Vested Company Option Option, multiplied by (y) the number of shares of Company Common Stock subject to such excess amount being hereinafter referred to as the “Vested Company Option Cash Out Amount”), subject to adjustment in accordance with Section 1.6. Vested Company Options with a per share exercise price greater than or equal as of immediately prior to the Per Share Common Consideration shall be cancelled without consideration. The payment of Effective Time less the Vested Company Option Cash Out Amount to any cash deemed contributed by such holder of Vested Company Options to the Escrow Funds pursuant to Section 1.7(b) (an “Option Payment”). The Option Payment (if any) payable under this Section 1.6(c)(i) to each former holder of a Vested Company Option that was outstanding immediately prior to the Effective Time shall be paid at through the Company’s payroll to such time(sformer holder in connection with the Closing and within five (5) provided in this Agreement Business Days following the Closing, net of any applicable withholding Taxes pursuant to Section 1.9. The Pro Rata Portions of the Indemnity Escrow Fund (if any) or the Special Escrow Fund (if any) payable pursuant to Section 1.7(b), the Adjustment Escrow Fund amount (if any) payable pursuant to Section 1.8(d) and 1.8(e) and the Expense Fund Surplus amount (if any) payable pursuant to Section 8.6(d) to each former holder of a Vested Company Option that was outstanding immediately prior to the Surviving Corporation for further payment to the holders of Employee Company Options Effective Time shall be paid through the Surviving Corporation’s payroll processing (or Parent’s payroll, if the Surviving Corporation no longer exists or does not have a payroll system at the time of payment) to such former holder at such time as specified in Section 1.7(b) and Section 8.6(d), net of any applicable Tax withholding and deductions, and in respect of Non-Employee Company Options, shall be paid to the Payment Agent for further payment to the Non-Employee Company Option Holders. For purposes of calculating the aggregate amount of consideration payable in respect of each Vested Company Option Taxes pursuant to this Section 1.3(c), (x) all shares of Company Common Stock issuable upon the exercise in full of the Vested Company Options held by each holder of Vested Company Options shall be aggregated and (y) the amount of cash to be paid to each such holder of Vested Company Options shall be rounded down to the nearest whole cent1.9.

Vested Company Options. No Each outstanding, unexercised and vested Company Options, or, as applicable, the vested portion of a Company Option (each a “Vested Company Options shall Option”), with a per share exercise price less than the Per Share Merger Consideration (each an “In-the-Money Vested Company Option”) shall, automatically and without any required action on the part of the holder thereof, be assumed or continued converted into the right to receive an amount in cash equal to the excess of (i) the Per Share Merger Consideration over (ii) the exercise price of such In-the-Money Vested Company Option, multiplied by Parent and the number of Company in connection with Shares underlying such In-the-Money Vested Company Option (the Merger or the other transactions contemplated hereby“Option Consideration”). Each Vested Company Option outstanding as of and unexercised immediately prior to the Effective Time shall be cancelled and converted automatically into the right to receive at the Effective Time with respect to each share subject thereto, subject to the execution and delivery by such Company Option Holder of an option cancellation agreement (which shall include a release) in a form mutually acceptable to Parent and the Company (an “Option Cancellation Agreement”), an amount in cash, without interest, equal to the excess, if any, of the Per Share Common Consideration for each share of Company Common Stock issuable upon the exercise in full of such Company Option over the per share exercise price of such Vested Company Option (such excess amount being hereinafter referred to as the “Vested Company Option Cash Out Amount”), subject to adjustment in accordance with Section 1.6. Vested Company Options with a per share exercise price greater than or equal to the Per Share Common Merger Consideration shall automatically be cancelled without consideration. The payment as of the Vested Company Option Cash Out Amount to Effective Time without any holder of Vested Company Options shall be paid at such time(s) provided in this Agreement to the Surviving Corporation for further payment to the holders of Employee Company Options through the Surviving Corporation’s payroll processing system net of applicable Tax withholding and deductions, and in respect of Non-Employee Company Options, shall be paid to the Payment Agent for further payment to the Non-Employee Company Option Holders. For purposes of calculating the aggregate amount of consideration payable in respect thereof. On the Closing Date, or as promptly as practicable thereafter (but in no event later than five days thereafter), the Surviving Company or Parent shall pay to each holder of each an In-the-Money Vested Company Option the aggregate Option Consideration payable to such holder of In-the-Money Options pursuant to this Section 1.3(c2.7(d), (x) all shares of Company Common Stock issuable upon the exercise in full of the Vested Company Options held by each holder of Vested Company Options shall be aggregated and (y) the amount of . Such cash to be paid to each such holder of Vested Company Options consideration shall be rounded down to the nearest whole centcent and the Surviving Company and Parent shall be entitled to deduct and withhold from such cash consideration all amounts required to be deducted and withheld under the Code, the rules and regulations promulgated thereunder, or any other applicable laws. To the extent that amounts are so withheld by the Surviving Company or Parent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the In-the-Money Vested Company Options with respect to whom such amounts were withheld by the Surviving Company or Parent.

Vested Company Options. No Vested Company Options shall be assumed or continued by Parent At the Closing, each then outstanding and the Company in connection with the Merger or the other transactions contemplated hereby. Each unexercised Vested Company Option outstanding as shall, by virtue of immediately prior to the Effective Time Acquisition and without any action on the part of any holder thereof, be terminated and the holder thereof shall be cancelled and converted automatically into the right entitled to receive at the Effective Time receive, with respect to each share Company Share subject thereto, subject to the execution and delivery by such Company Option Holder of an option cancellation agreement consideration (which shall include a releasemeasured in US dollars) in a form mutually acceptable to Parent and the Company (an “Option Cancellation Agreement”), an amount in cash, without interest, equal to the excess, if any, of the Per Ordinary Share Common Consideration for each share of Company Common Stock issuable upon the exercise in full of such Company Option over the per share exercise price of such Vested Company Option as set forth in the Payment Spreadsheet (such excess amount being hereinafter referred to as the “Per Option Consideration”). The Per Option Consideration shall consist of (i) cash equal to 40% of the Per Option Consideration, and (ii) fully vested restricted stock units of Parent (“RSUs”) equal to 60% of the Per Option Consideration divided by the Parent Average Trading Price. In the event that the exercise price per share of a Vested Company Option Cash Out Amount”), subject to adjustment in accordance with Section 1.6. Vested Company Options with a per share exercise price greater than or is equal to or higher than the Per Ordinary Share Common Consideration, then the Per Option Consideration shall be cancelled without considerationequal to zero. The payment Notwithstanding the foregoing, in the event that the number of the Vested Company Option Cash Out Amount RSUs issuable to any holder of Vested Company Option with respect to its entire grant of Vested Company Options is equal to or less than fifty (50) (subject to adjustment for any recapitalization events), and to the extent approved in the 102 Tax Ruling, then the entire Per Option Consideration payable to such holder with respect to such Vested Company Options shall be paid at solely in cash. The RSUs referred to under clause (ii) above (A) shall be issued pursuant to a stock incentive plan of Parent (or an appropriate annex to such time(sstock incentive plan) provided in this Agreement that has been qualified under Section 102 of the Israeli Income Tax Ordinance, (B) will qualify under the capital gains route with respect to the Surviving Corporation for further payment any such shares issued to the holders of Employee Vested Company Options through that were granted under the Surviving Corporation’s payroll processing system net capital gains route of Section 102, consistent with the terms of the 102 Tax Ruling, (C) will be fully vested upon issuance and will not be subject to any exercise price or any restrictions or limitations on disposition other than pursuant to applicable Tax withholding Law, (D) will be registered as of Closing and deductionsthereafter under an effective registration statement of Parent on Form S-8, and (E) their issuance will be exempt from prospectus in respect Israel under an exemption to be obtained prior to Closing pursuant to Section 15D of Non-Employee Company Options, shall be paid to the Payment Agent for further payment to the Non-Employee Company Option HoldersIsraeli Securities Law. For purposes of calculating the aggregate amount of consideration payable in respect of each Vested Company Option pursuant the Acquisition Consideration due to this Section 1.3(c), (x) all shares of Company Common Stock issuable upon the exercise in full of the Vested Company Options held by each holder of Vested Company Options Options, each individual grant of RSUs shall be aggregated calculated separately and (y) aggregated, with any cash amount being rounded to the nearest cent and any amount of cash to be paid to each such holder of Vested Company Options shall be RSUs being rounded down to the nearest whole share. Any holder of Vested Company Options who would otherwise be entitled to receive a fraction of an RSU shall receive an amount of cash equal to the product obtained by multiplying (A) such fraction by (B) the Parent Average Trading Price, rounded to the nearest whole cent. Notwithstanding anything to the contrary set forth in this Section 1.2(a) or elsewhere in this Agreement, the Buyer shall (or shall cause the Company to) deliver the Acquisition Consideration payable in respect of any Company 102 Options that are Vested Company Options and any Company 3(i) Options that are Vested Company Options to the 102 Trustee, to be held and released in accordance with the agreement with the 102 Trustee, applicable Law (including the provisions of Sections 102 and 3(i) of the Israeli Tax Ordinance and the regulations and rules promulgated thereunder, including the completion of any required 102 Trust Period) and the Israeli 102 Tax Ruling (or any other approval from the ITA received either by the Company prior to Closing, or by the Buyer or the Company after Closing with the consent of the Representative). The 102 Trustee shall be required to withhold any amounts required in accordance with applicable Law (including the provisions of Sections 102 and 3(i) of the Israeli Tax Ordinance and the regulations and rules promulgated thereunder, including the completion of any required 102 Trust Period) and the Israeli 102 Tax Ruling (or any other approval from the ITA received either by the Company prior to Closing, or by the Buyer or the Company after Closing with the consent of the Representative). Holders of RSUs may engage in Hedging Transactions (as defined in the Lock Up Agreement) with respect to the shares of Parent Common Stock underlying such RSU’s to the extent that such Hedging Transactions are administered independently by a broker and without any discretion of such holders of RSUs.

Vested Company Options. No At the effective time of the Merger (the “Effective Time”), which is anticipated to occur in May, 2010, the portion of your outstanding Company Options that is vested as of the Effective Time (the “Vested Company Options”) shall terminate and be cancelled as of the Effective Time. If you do not exercise your Vested Company Options, you shall be entitled to receive a cash payment (subject to all applicable income and employment tax withholding) equal to the product of (x) the number of shares of Company common stock that were issuable upon exercise of such Vested Company Options shall be assumed or continued by Parent and the Company in connection with the Merger or the other transactions contemplated hereby. Each Vested Company Option outstanding as of immediately prior to the Effective Time shall be cancelled and converted automatically into the right to receive at the Effective Time with respect to each share subject thereto, subject to the execution and delivery multiplied by such Company Option Holder of an option cancellation agreement (which shall include a releasey) in a form mutually acceptable to Parent and the Company (an “Option Cancellation Agreement”), an amount in cash, without interest, equal to the excess, if any, of (1) the Per Share Common Consideration for Amount (as defined in the Merger Agreement as the consideration that each share of Company Common Stock issuable upon common stock will receive in the exercise in full of such Company Option over Merger) minus (2) the per share exercise price for the shares of Company common stock that would have been issuable upon exercise of such Vested Company Option (such excess amount being hereinafter referred to as the “Vested Company Option Cash Out Amount”), subject to adjustment in accordance with Section 1.6. Vested Company Options with a per share exercise price greater than or equal immediately prior to the Per Share Common Consideration shall be cancelled without consideration. The payment of Effective Time (with the Vested Company Option Cash Out Amount to any holder of Vested Company Options shall be paid at such time(s) provided in this Agreement to the Surviving Corporation understanding that, for further payment to the holders of Employee Company Options through the Surviving Corporation’s payroll processing system net of applicable Tax withholding and deductions, and in respect of Non-Employee Company Options, shall be paid to the Payment Agent for further payment to the Non-Employee Company Option Holders. For purposes of calculating the aggregate amount of consideration payable in respect of each Vested Company Option pursuant to this Section 1.3(c)clause, (x) all shares of Company Common Stock issuable upon the if there are different exercise in full of the prices for different Vested Company Options held by you, separate calculations shall be made for each holder applicable exercise price) (the “Vested Spread”). Pursuant to the Merger Agreement, approximately 15% of the Vested Spread shall be held back in escrow to indemnify the Parent in case of a breach of a representation, warranty or covenant in the Merger Agreement or if an event happens which requires indemnification as provided in the Merger Agreement. (The exact percentage of the Vested Spread to be subject to escrow will depend on the final purchase price after giving effect to closing payments, working capital adjustments and the like.) The amount withheld will be deposited with the escrow agent pursuant to the terms of the Merger Agreement to secure such indemnification obligations, and all amounts deposited with the escrow agent, together with any interest, investment income or other proceeds applicable thereto, shall be held by the escrow agent, subject to the terms and conditions of the Merger Agreement and the related escrow agreement. You acknowledge and agree to be bound by all provisions of Articles 2 and 9 of the Merger Agreement, and that you shall be entitled to receive the portion of the Vested Spread held back in escrow only at the times and in the amounts set forth in the Merger Agreement and the escrow agreement. You may also choose to exercise your Vested Company Options shall be aggregated prior to the Effective Time. If you wish to exercise your Vested Company Options, please contact the Company immediately. You must provide a completed exercise notice to the Company and (y) pay the amount exercise price per share prior to the Effective Time. For any of cash to be paid to each such holder of your Vested Company Options that were granted as incentive stock options (“ISOs”) under Internal Revenue Code Section 422 and are exercised by you, the Vested Spread shall be rounded down reported as ordinary income to you for income tax purposes, but shall not be subject to withholding, including not being subject to employment taxes. For any of your Vested Company Options that were granted as nonstatutory stock options (“NSOs”), the nearest whole centVested Spread shall be reported as ordinary income and be subject to applicable tax withholding (including income and employment taxes). As a stockholder, a percentage of the Merger consideration that you receive for your shares will be held back in escrow on the same terms as described above for Vested Company Options.