Common use of 2018 and 2020 Company Performance Unit Awards Clause in Contracts

2018 and 2020 Company Performance Unit Awards. Immediately prior to the Effective Time, the Compensation Committee of the Company Board shall (A) cause any then-current performance period applicable to any Company Performance Units Awards to end, and (B) with the approval of Parent (which approval shall not be unreasonably withheld), make a reasonable good-faith determination of the level of achievement of the performance conditions applicable to such Company Performance Units Awards for such performance period; provided, that with respect to any holder of Company Performance Unit Awards listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Performance Unit Awards shall be deemed at the target level. To the extent such determined achievement is below the threshold performance for any such Company Performance Unit Awards, such Company Performance Unit Awards shall, at the Effective Time, whether vested or unvested, automatically, and without any further action on the part of Parent, Merger Sub, the Company or the holder thereof, be cancelled and of no further force or effect and with no consideration payable therefor. To the extent such determined achievement is at least threshold performance for any such Company Performance Unit Awards, a portion of such Company Performance Unit Awards shall become vested at a level that is based on the determination of the Compensation Committee of the Company Board of relevant performance (or as otherwise set forth in this Section 6.9(e)(i)) and will be cancelled and converted into the right to receive, an amount in cash, without interest thereon, equal to (i) $1.00 multiplied by (ii) the total number of units of the Company Performance Unit Awards that become vested based on the determined achievement of applicable performance conditions (the “2018 and 2020 Performance Unit Consideration”). At or prior to the Closing, Parent shall deposit (or cause to be deposited) with the Company, by wire transfer of immediately available funds, the aggregate 2018 and 2020 Performance Unit Consideration owed to all holders of Company Performance Unit Awards granted in 2018 or 2020. As promptly as reasonably practicable, but in any event no later than five Business Days after the Closing Date, the holders of such Company Performance Unit Awards will be paid by the Company or the Surviving Corporation, through its payroll system or payroll provider, all amounts required to be paid to such holders in respect of Company Performance Unit Awards that were granted in 2018 or 2020 pursuant to this Section 6.9(e)(i), less any required withholding Taxes. Notwithstanding the foregoing provisions of this Section 6.9(e)(i), (x) to the extent the Effective Time occurs on or after January 1, 2021, the provisions of this Section 6.9(e)(i) shall be of no further force or effect and all Company Performance Unit Awards shall be subject to the treatment described in Section 6.9(e)(ii) (ignoring the references therein to grants made in 2019); provided that, in the event that the Effective Time occurs on or after January 1, 2021, if as of the date that is five (5) days prior to the Effective Time, the Compensation Committee of the Company Board has not yet made a final determination of the level of achievement of the performance conditions applicable to the relevant Company Performance Unit Awards for the performance period ending on December 31, 2020, the Compensation Committee of the Company Board shall make such determination with the approval of Parent (which shall not be unreasonably withheld), and (y) to the extent any Company Performance Unit Award granted in 2018 or 2020 is nonqualified deferred compensation subject to Section 409A of the Code, Parent will distribute the applicable portion of the 2018 and 2020 Performance Unit Consideration, at the earliest time permitted under the terms of the applicable agreement, plan or arrangement relating to such Company Performance Unit Award that will not trigger a Tax or penalty under Section 409A of the Code, provided that each holder of Company Performance Unit Awards granted in 2018 or 2020 shall be responsible for all Taxes under Section 409A of the Code, if any, due in connection with such awards (other than, to the extent applicable, required withholding amounts) and none of Parent, the Company or the Surviving Corporation shall responsible for any such Taxes arising under Section 409A of the Code.