Common use of Vested Company Options Clause in Contracts

Vested Company Options. Each Company Share Option (a “Vested Company Option”) that is vested and outstanding prior to the Effective Time shall automatically be exercised as of and subject to occurrence of the Closing. Such exercise shall be effected either by appropriate amendment to the Company Benefit Plan which forces the exercise of the Vested Company Options as of the Closing or by voluntary exercise on the part of the holder of Vested Company Options. Such holders of Vested Company Options shall not be required to make payment of the exercise price of such Vested Company Options at the time of exercise, and instead the following shall apply: As soon as practicable after the Effective Time, the Parent shall cause the Paying Agent to transfer to (x) the 102 Trustee (in the case of 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, less applicable deductions and withholding at the time of payment, which shall be transferred to the applicable Tax authority. Notwithstanding the foregoing, the proceeds payable with respect to Company Shares obtained upon exercise of Vested Company Options which are held by the Section 102 Trustee shall be held, paid and distributed by the 102 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. Each Company Share Option (a “No Vested Company Option”) that is vested and Options shall be assumed or continued by Parent or the Company in connection with the Merger or the other transactions contemplated hereby. Except as set forth on Schedule 2.1(b)(i), each Vested Company Option outstanding as of immediately prior to the Effective Time shall be cancelled and converted automatically be exercised as into the right to receive with respect to each share of and Company Common Stock subject thereto, (A) an amount in cash, without interest, equal to occurrence (1) the Per Share Unaccredited Cash Consideration for each share of Company Common Stock issuable upon the Closing. Such exercise shall be effected either by appropriate amendment in full of such Vested Company Option, minus (2) an amount in cash equal to the Company Benefit Plan which forces the exercise of the Vested Company Options as of the Closing or by voluntary exercise on the part of the holder of Vested Company Options. Such holders of Vested Company Options shall not be required to make payment of the per share exercise price of such Vested Company Option, minus (3) the Per Share Adjustment Escrow Amount, minus (4) the Per Share Specific Indemnity Escrow Amount, minus (5) the Per Share Indemnity Escrow Amount, minus (6) the Per Share Expense Fund Amount, (B) any disbursements of Escrow Cash required to be made from the Escrow Account with respect to such Vested Company Option to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest, in each case in accordance with Section 2.9(f) and/or Section 8.4, as applicable, (C) any cash disbursements required to be made in connection with the Post-Closing Excess Amount (if any) with respect to such Vested Company Option to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest, in accordance with Section 2.9(e) and (D) any cash disbursements required to be made from the Expense Fund Account with respect to such Vested Company Option to the former holder thereof (based on such holder’s Pro Rata Share of the released amount), without interest, in accordance with Section 8.6(c). Such payment in respect of any Vested Company Options at that are Employee Options shall be made to the time holders of exerciseEmployee Options through the payroll processing system of Parent, the Surviving Corporation or a Subsidiary of the Surviving Corporation, as applicable, in accordance with standard payroll practices net of applicable Tax withholding and deductions, and instead the following such payment in respect of any Vested Company Options that are Non-Employee Options, shall apply: As soon as practicable after the Effective Time, the Parent shall cause be paid to the Paying Agent for further payment to transfer such the holders of such Non-Employee Options; provided that, as a condition to payment of any amount owed to the holders of Non-Employee Options, each such holder of Non-Employee Options must have first delivered to the Paying Agent or Parent, as applicable, a properly completed Letter of Transmittal and a properly completed IRS Form W-9, or the appropriate version of IRS Form W-8, if applicable. For purposes of calculating the aggregate amount of consideration payable to each Company Vested Optionholder in respect of all of such holder’s Vested Company Options issued pursuant to any particular grant pursuant to this Section 2.1(b)(i), (x1) the 102 Trustee (consideration payable in the case respect of all 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, Optionholder pursuant to any particular grant shall be aggregated and (ii2) pay or cause the amount of cash to be paid the balance of the Merger Consideration to each former holder of such Company Vested Company Options, less applicable deductions and withholding at the time of payment, which Optionholder after such aggregation shall be transferred rounded to the applicable Tax authority. Notwithstanding the foregoing, the proceeds payable with respect to Company Shares obtained upon exercise of Vested Company Options which are held by the Section 102 Trustee shall be held, paid and distributed by the 102 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 obtainednearest whole cent.

Vested Company Options. Each At the effective time of the Merger (the “Effective Time”), which is anticipated to occur in May, 2010, the portion of your outstanding Company Share Option Options that is vested as of the Effective Time (a the “Vested Company OptionOptions”) that is vested shall terminate and outstanding prior to the Effective Time shall automatically be exercised as of and subject to occurrence of the Closing. Such exercise shall be effected either by appropriate amendment to the Company Benefit Plan which forces the exercise of the Vested Company Options cancelled as of the Closing or by voluntary Effective Time. If you do not exercise on the part of the holder of your Vested Company Options. Such holders , you shall be entitled to receive a cash payment (subject to all applicable income and employment tax withholding) equal to the product of Vested Company Options shall not be required to make payment of the exercise price of such Vested Company Options at the time of exercise, and instead the following shall apply: As soon as practicable after the Effective Time, the Parent shall cause the Paying Agent to transfer to (x) the 102 Trustee (in the case number of Vested shares of 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 common stock that were issuable upon exercise of such Vested Company Options, and Options immediately prior to the 102 Trustee or Effective Time multiplied by (y) an amount equal to (1) the Company, Per Share Common Amount (as defined in the Merger Agreement as the case may be, shall consideration that each share of Company common stock will receive in the Merger) minus (i2) transfer to the Company the full amount of the per share exercise price for the shares of Company common stock that would have been issuable upon exercise of such Vested Company Options immediately prior to the Effective Time (with the understanding that, for purposes of this clause, if there are different exercise prices for different Vested OptionsCompany Options held by you, separate calculations shall be made for each applicable exercise price) (ii) pay 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 cause 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 paid subject to escrow will depend on the balance 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 Consideration Agreement to each former holder 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 prior to the Effective Time. If you wish to exercise your Vested Company Options, less applicable deductions and withholding at please contact the time of payment, which shall be transferred Company immediately. You must provide a completed exercise notice to the applicable Tax authorityCompany and pay the exercise price per share prior to the Effective Time. Notwithstanding the foregoing, the proceeds payable with respect to Company Shares obtained upon exercise For any of your Vested Company Options which that were granted as incentive stock options (“ISOs”) under Internal Revenue Code Section 422 and are held exercised by you, the Section 102 Trustee Vested Spread shall be heldreported as ordinary income to you for income tax purposes, paid and distributed by the 102 Trustee in accordance with applicable Lawbut shall not be subject to withholding, including, without limitationincluding not being subject to employment taxes. For any of your Vested Company Options that were granted as nonstatutory stock options (“NSOs”), the provisions of Section 102 Vested 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 Israeli Tax Code and Merger consideration that you receive for your shares will be held back in escrow on the regulations and rules promulgated thereunder and the Israeli Options Tax Ruling, if obtainedsame terms as described above for Vested Company Options.

Vested Company Options. Each At the Effective Time, each Company Share Option (a “Vested Company Option”or portion thereof) that is vested and outstanding as of immediately prior to the Effective Time shall automatically be exercised as of and subject to occurrence of the Closing. Such exercise shall be effected either by appropriate amendment that is then vested shall, to the extent not exercised prior to the Effective Time, be purchased by the Company Benefit Plan for an amount in cash equal to, for each Common Non-Voting Share underlying such vested Company Option (or portion thereof), the amount by which forces the Purchase Price Per Share exceeds the exercise of the Vested price for such Common Non-Voting Share, and each such vested Company Options as of the Closing Option (or by voluntary exercise portion thereof) shall thereafter be terminated without any further action on the part of Parent, Sub, the Company or the holder of Vested Company Optionsthereof. Such holders of Vested Company Options shall not be required Prior to make payment of the exercise price of such Vested Company Options at the time of exercise, and instead the following shall apply: As soon as practicable after the Effective Time, the Parent Company shall cause take all action necessary to effect the Paying Agent to transfer to (xterminations anticipated by this Section 1.2(e)(ii) the 102 Trustee (in the case of 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 under any outstanding Company Options, and including any actions required by the 102 Trustee or the Company, as the case may be, shall (i) transfer Plan. Parent covenants to the Company the full amount of the exercise price for such Company Vested Options, (ii) pay deliver or cause to be paid delivered the balance Vested Option Consideration in cash to the Company on the Closing Date, provided that a portion thereof will be withheld in accordance with Section 1.2(d)(i). Company, Parent and Sub agree that it is their common intention to waive any entitlement to a deduction for Canadian Tax purposes in respect of the Merger Consideration to each former holder payment of the Vested Company OptionsOption Consideration, less applicable deductions and withholding at in accordance with subsection 110(1.1) of the time ITA. In furtherance of payment, which shall be transferred to the applicable Tax authority. Notwithstanding the foregoing, the proceeds payable Parent and Sub hereby covenant and agree with respect the Shareholders and the Company that the Parent and Sub (a) shall, and shall cause the Company to, make the applicable elections under draft paragraph 110(1.1)(a) of the ITA to forego the deduction of payments made to retire employee stock options pursuant to Section 1.2(e) and shall not, and shall cause the Company Shares obtained upon exercise of Vested Company Options which are held by the Section 102 Trustee shall be heldnot to, paid and distributed by the 102 Trustee in accordance with applicable Lawrescind, including, without limitationamend or otherwise modify or seek to nullify any such election. For greater certainty, the provisions of Section 102 obligation of the Israeli Tax Code and Company to pay the regulations and rules promulgated thereunder and Vested Payment Amount will be disregarded for the Israeli Options Tax Rulingpurposes of determining the Balance Sheet Adjustment Amount, if obtainedthe Third Party Expense Adjustment Amount, or the Indebtedness Adjustment Amount.

Vested Company Options. Each outstanding, unexercised and vested Company Share Options, or, as applicable, the vested portion of a Company Option (each a “Vested Company Option”) that is vested and outstanding prior to ), with a per share exercise price less than the Effective Time shall automatically be exercised as of and subject to occurrence of the Closing. Such exercise shall be effected either by appropriate amendment to the Company Benefit Plan which forces the exercise of the Per Share Merger Consideration (each an “In-the-Money Vested Company Options as of the Closing or by voluntary exercise Option”) shall, automatically and without any required action on the part of the holder thereof, be converted into the right to receive an amount in cash equal to the excess of Vested Company Options. Such holders of Vested Company Options shall not be required to make payment of (i) the Per Share Merger Consideration over (ii) the exercise price of such In-the-Money Vested Company Option, multiplied by the number of Company Shares underlying such In-the-Money Vested Company Option (the “Option Consideration”). Each Vested Company Option outstanding and unexercised immediately prior to the Effective Time with a per share exercise price greater than or equal to the Per Share Merger Consideration shall automatically be cancelled as of the Effective Time without any 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 an In-the-Money Vested Company Option the aggregate Option Consideration payable to such holder of In-the-Money Options pursuant to this Section 2.7(d). Such cash consideration shall be rounded down to the nearest cent 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 at the time of exercise, and instead the following shall apply: As soon as practicable after the Effective Time, the Parent shall cause the Paying Agent to transfer to (x) the 102 Trustee (in the case of 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 whom 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, less applicable deductions and withholding at the time of payment, which shall be transferred to the applicable Tax authority. Notwithstanding the foregoing, the proceeds payable with respect to Company Shares obtained upon exercise of Vested Company Options which are held amounts were withheld by the Section 102 Trustee shall be held, paid and distributed by the 102 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 obtainedSurviving Company or Parent.

Vested Company Options. Each Company Share Option (a “At the Closing, each then outstanding and unexercised Vested Company Option”) that is vested and outstanding prior to the Effective Time shall automatically be exercised as of and subject to occurrence Option shall, by virtue of the Closing. Such exercise shall be effected either by appropriate amendment to the Company Benefit Plan which forces the exercise of the Vested Company Options as of the Closing or by voluntary exercise Acquisition and without any action on the part of any holder thereof, be terminated and the holder of Vested thereof shall be entitled to receive, with respect to each Company Options. Such holders of Vested Company Options shall not be required Share subject thereto, consideration (measured in US dollars) equal to make payment the excess, if any, of the Per Ordinary Share Consideration over the per share exercise price of such Vested Company Options at Option as set forth in the time Payment Spreadsheet (the “Per Option Consideration”). The Per Option Consideration shall consist of exercise(i) cash equal to 40% of the Per Option Consideration, and instead (ii) fully vested restricted stock units of Parent (“RSUs”) equal to 60% of the following shall apply: As soon as practicable after the Effective Time, Per Option Consideration divided by the Parent Average Trading Price. In the event that the exercise price per share of a Vested Company Option is equal to or higher than the Per Ordinary Share Consideration, then the Per Option Consideration shall cause be equal to zero. Notwithstanding the Paying Agent to transfer to (x) the 102 Trustee (foregoing, in the case event that the number of RSUs issuable to any holder of Vested Company Option with respect to its entire grant of Vested Company Options held by is equal to or less than fifty (50) (subject to adjustment for any recapitalization events), and to the extent approved in the 102 Trustee) or (y) Tax Ruling, then the Company (in the case of all other Vested Company Options) the full Merger entire Per Option Consideration payable to such holder with respect to the Company Shares obtained upon exercise of such Vested Company OptionsOptions shall be paid 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 stock incentive plan) that has been qualified under Section 102 of the Israeli Income Tax Ordinance, (B) will qualify under the capital gains route with respect to any such shares issued to holders of Vested Company Options that were granted under the 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 Law, (D) will be registered as of Closing and thereafter under an effective registration statement of Parent on Form S-8, and (E) their issuance will be exempt from prospectus in Israel under an exemption to be obtained prior to Closing pursuant to Section 15D of the 102 Trustee or Israeli Securities Law. For purposes of calculating 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 Acquisition Consideration due to each former holder of Vested Company Options, less applicable deductions and withholding at the time each individual grant of payment, which RSUs shall be transferred calculated separately and aggregated, with any cash amount being rounded to the applicable Tax authoritynearest cent and any amount of RSUs being rounded down to the nearest whole share. Notwithstanding the foregoing, the proceeds payable with respect to Company Shares obtained upon exercise Any holder of Vested Company Options which 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 held by the Section 102 Trustee shall be held, paid Vested Company Options and distributed by any Company 3(i) Options that are Vested Company Options to the 102 Trustee Trustee, to be held and released in accordance with the agreement with the 102 Trustee, applicable Law, including, without limitation, Law (including the provisions of Section Sections 102 and 3(i) of the Israeli Tax Code Ordinance and the regulations and rules promulgated thereunder thereunder, including the completion of any required 102 Trust Period) and the Israeli Options 102 Tax RulingRuling (or any other approval from the ITA received either by the Company prior to Closing, if obtainedor 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.