Company Performance Unit Awards. At the Effective Time, each outstanding award of performance units denominated in shares of Company Common Stock (a “Company Performance Unit Award”) granted pursuant to the Company Stock Plan shall, by virtue of the occurrence of the Closing and without any action by Parent, Merger Sub, the Company or the holder thereof, immediately vest and be converted into the right to receive (i) in the case of Company Performance Unit Awards that vest based on total shareholder return, (A) that number of shares of Parent Common Stock (rounded to the nearest whole share) equal to the product of (x) the number of shares of Company Common Stock subject to such Company Performance Unit Award immediately prior to the Effective Time reflecting the attainment of the applicable performance metrics at the maximum level of performance (which, for the avoidance of doubt, shall be equal to 200% of the target number of performance units subject to such Company Performance Unit Award) multiplied by (y) the Exchange Ratio and (B) an amount in cash equal to the accrued but unpaid dividend equivalents with respect to each such share of Company Common Stock, or (ii) in the case of Company Performance Unit Awards that vest based on free cash flow, an amount in cash reflecting the attainment of the applicable performance metrics at the maximum level of performance (which, for the avoidance of doubt, shall be equal to 200% of the target number of performance units subject to such Company Performance Unit Award) multiplied by the average of the daily closing price of a share of Company Common Stock during the final thirty (30) calendar days ending on the last trading day immediately preceding the Closing Date (the “Average Price ”); provided, however that if any values were banked under such award based on a price per share of Company Common Stock that is greater than the Average Price then such higher price shall be used for such portion of the award, plus any dividend equivalents accrued with respect to such Company Performance Unit Award, in the case of each of the foregoing clauses (i) and (ii), as promptly as administratively possible after the Closing, but in no event later than ten (10) Business Days after the Closing.
Company Performance Unit Awards. The Company shall take such actions that it deems necessary or appropriate so that each restricted stock unit entitling the recipient to receive, upon vesting based upon the attainment of designated performance goals, shares of Company Common Stock granted under the Company Equity Plan (“Company Performance Unit Awards”) that is outstanding as of immediately prior to the Acceptance Time shall, by virtue of the occurrence of the Acceptance Time and without any action on the part of any holder of any Company Performance Unit Award, be cancelled, as of the occurrence of the Acceptance Time, in exchange for the right to receive from the Company a cash payment, without interest, equal to the product obtained by multiplying (x) the Offer Price by (y) the greater of (1) the number of shares of Company Common Stock which may be earned pursuant to such Company Performance Unit Award based upon performance at the target level of performance and (2) the number of shares of Company Common Stock which may be earned pursuant to such Company Performance Unit Award based upon actual performance prior to the Acceptance Time (determined in accordance with the provisions of the award agreement governing such Company Performance Unit Award), subject to the withholding of Taxes required by applicable Law in accordance with Section 4.5; provided, however, that in the case of a Company Performance Unit Award which is a “Total Stockholder Return Performance Unit Award” the number of shares of Company Common Stock used for purposes of this clause (y) shall be the number determined in accordance with Section 6.3 of the award agreement governing such award. Parent or Purchaser shall cause any cash payments required pursuant to this Section 4.4(c) to be paid as promptly as reasonably practicable (but in any event not later than three (3) Business Days following the Effective Time, and in all events in compliance with the requirements of Section 409A of the Code).
Company Performance Unit Awards
