Company PSUs. At least five Business Days prior to the Effective Time, the Compensation Committee of the Company Board shall (i) cause any then-current performance period applicable to any Company PSUs to end, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, such Company PSU 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled and converted into the right to receive (A) a number of shares of Parent Common Stock, equal to the sum of (x) the product of (I) the Exchange Ratio, multiplied by (II) the number of shares of Company Common Stock subject to vesting under the Company PSU based on the achievement of performance conditions determined immediately prior to the Effective Time pursuant to this Section 2.8(c), plus (y) the quotient of (I) the product of (aa) the number of shares of Company Common Stock described in clause (A)(x)(II) above, multiplied by (bb) the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of such Company PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a Company PSU pursuant to this Section 2.8(c), such holder shall be entitled to the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”). Notwithstanding the foregoing, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions of this Section 2.8(c) shall be of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; 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 PSUs 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).
Appears in 4 contracts
Samples: Merger Agreement (Enova International, Inc.), Merger Agreement (Enova International, Inc.), Merger Agreement (Enova International, Inc.)
Company PSUs. At least five Business Days prior to the Effective Time, the Compensation Committee of the Company Board shall (i) cause any then-current performance period applicable to any Company PSUs to end, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, such Each Company PSU 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled and converted into the right to receive (A) a number of shares of Parent Common Stock, equal to the sum of (x) the product of (I) the Exchange Ratio, multiplied by (II) the number of shares of Company Common Stock subject to vesting granted under the Company PSU based on the achievement of performance conditions determined Company’s 2009 Incentive Award Plan that is outstanding immediately prior to the Effective Time pursuant will cease to this Section 2.8(c)represent a right to acquire Company Shares and will be converted as of the Effective Time into performance share units (each a “Converted PSU”) covering a number of validly issued, plus (y) the quotient of (I) fully paid and nonassessable Parent Common Shares equal to the product of (aaA) the number of shares Company Shares that would be issuable under such Company PSU, measuring, for such purposes, achievement of Company Common Stock described in clause (A)(x)(II) abovethe applicable performance conditions as of the Closing Date, multiplied by (bbB) the Cash ConsiderationExchange Ratio, divided by rounded down to the nearest whole share. Each Converted PSU shall otherwise have substantially the same terms and conditions as the corresponding Company PSU, provided that (II1) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of Shares issuable under such Company Converted PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due shall be issued to the holder of a such Converted PSU on the original target date applicable to such Company PSU pursuant and (2) no further performance conditions shall apply to this Section 2.8(c)such Converted PSU.
(ii) Each Company PSU granted under the Company’s 2005 Executive Officer Equity Plan that is outstanding immediately prior to the occurrence of the Change-of-Control associated with the Merger, such holder if any, whether or not then vested, shall vest and become nonforfeitable and shall be entitled to cancelled on the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”). Notwithstanding the foregoing, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions of this Section 2.8(c) shall be of no force or effect and the portion occurrence of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31Change-of-Control, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; provided thatand, in exchange therefor, Parent or the event that the Effective Time occurs on or after January 1Company shall pay to each former holder of any such cancelled Company PSU, 2021, if as of the date that is five (5) days prior to soon as practicable following the Effective Time, an amount in cash (without interest, and less any amount withheld pursuant to Section 3.05) equal to the Compensation Committee product of (A) the Merger Consideration multiplied by (B) the number of Company Board has not yet made a final determination of the level of Shares that would be issuable under such Company PSU, measuring, for such purposes, achievement of the applicable performance conditions applicable to the relevant Company PSUs for the performance period ending on December 31, 2020, the Compensation Committee as of the Closing Date. For the avoidance of doubt, in no event shall a holder of a cancelled Company Board shall make PSU be entitled to payment with respect to such determination with the approval of Parent (which shall not be unreasonably withheldCompany PSU under both this Section 3.02(c)(ii) and Section 3.01(b).
Appears in 2 contracts
Samples: Merger Agreement (Texas Instruments Inc), Merger Agreement (National Semiconductor Corp)
Company PSUs. At least five Business Days (i) Immediately prior to the Effective Time, with respect to each outstanding Company PSU that, pursuant to its terms, requires accelerated vesting as of the Effective Time, the restrictions and vesting conditions applicable to such Company PSU shall lapse in accordance with the terms thereof and each such Company PSU shall, by virtue of the Merger and without any action on the part of the holder thereof, be converted as of the Effective Time into the right to receive, with respect to each share of Company Common Stock underlying such Company PSU, the Cash Election Consideration. The Cash Election Consideration, less applicable Tax withholdings, shall be paid or provided to the holder of such Company PSU as soon as reasonably practicable following the Closing Date, but in no event later than ten (10) Business Days following the Closing Date.
(ii) Immediately prior to the Effective Time, with respect to each outstanding Company PSU that, pursuant to its terms, does not require accelerated vesting as of the Effective Time (and which is therefore not converted into the right to receive the Cash Election Consideration pursuant to Section 3.6(b)(i)), such Company PSU shall, by virtue of the Merger and without further action on the part of the holder thereof, be treated as follows:
(A) Company PSUs or portions thereof that are eligible to vest in respect of (I) performance conditions that are not based on share or market price and (II) performance achieved during the year in which the Closing occurs, shall vest based on the level of actual performance achievement of the applicable performance criteria through the end of the month immediately preceding the month in which the Closing occurs, as proportionately extrapolated through the remainder of the applicable performance period (as determined by the Compensation Committee of the Company Board shall (i) cause any then-current performance period applicable to any Company PSUs to endof Directors, in its reasonable discretion and in consultation with Parent), and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination converted as of the level of achievement of Effective Time into the performance conditions applicable right to such Company PSUs for such performance period; providedreceive, that with respect to any holder each share of Company PSUs listed on Schedule 2.8(c) Common Stock underlying the vested portion of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, the Cash Election Consideration. The Cash Election Consideration, less applicable Tax withholdings, shall be paid or provided to the holder of such Company PSU shallas soon as reasonably practicable following the Closing Date, at but in no event later than ten (10) Business Days following the Closing Date. Any such Company PSUs which do not become vested pursuant to this Section 3.6(b)(ii)(A) shall be cancelled as of the Effective Time without consideration.
(B) Company PSUs or portions thereof that are eligible to vest in respect of (I) performance conditions that are not based on stock or market price and (II) a performance period that has not yet commenced as of the Effective Time, whether vested or unvested, automaticallyshall vest based on deemed achievement at the “target” level performance, and shall be converted as of the Effective Time into the right to receive, with respect to each share of Company Common Stock underlying the vested portion of such Company PSU, the Cash Election Consideration. The Cash Election Consideration, less applicable Tax withholdings, shall be paid or provided to the holder of such Company PSU as soon as reasonably practicable following the Closing Date, but in no event later than ten (10) Business Days following the Closing Date. Any such Company PSUs which do not become vested pursuant to this Section 3.6(b)(ii)(B) shall be cancelled as of the Effective Time without any consideration
(C) Company PSUs that are eligible to vest in respect of performance conditions that are based on stock or market price (each, a “Company Market-PSU”) shall, by virtue of the Merger and without further action on the part of Parent, Merger Sub, the Company or the holder thereof, be cancelled and assumed by Parent as 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled Effective Time and converted into the right to receive a performance-based restricted unit award of Parent (A) a each, an “Assumed Company Performance Unit Award”). Each Assumed Company Performance Unit Award shall cover that number of whole shares of Parent Common Stock, Stock equal to the sum of (x) the product of (I) the Exchange Ratio, multiplied by (II) the number of shares of Company Common Stock subject underlying the applicable Company Market-PSU immediately prior to vesting under the Company PSU Effective Time, multiplied by (II) the Exchange Ratio, with the result rounded down to the nearest whole number of shares of Parent Common Stock. The stock-based on the achievement of or market-based performance conditions determined applicable to each Assumed Company Performance Unit Award shall be equal to the quotient obtained by dividing (x) the applicable stock-based or market-based performance target(s) of the applicable Company Market-PSU immediately prior to the Effective Time pursuant to this Section 2.8(c), plus by (y) the quotient Exchange Ratio (or, if the applicable stock-based or market-based performance target(s) are determined as a percentage or multiple of (I) the product of (aa) the number of shares of Company Common Stock described in clause (A)(x)(II) abovean initial value, multiplied by (bb) the Cash Consideration, then instead such initial value shall instead be divided by (II) the Parent Trading PriceExchange Ratio). Except as otherwise provided in this Section 3.6(b)(ii)(C), minus (B) that number of shares of Parent Common Stock with a fair market value (each Assumed Company Performance Unit Award shall continue to have, and shall be subject to, the same terms and conditions as determined in accordance with applied to the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of such corresponding Company PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due immediately prior to the holder of a Company PSU pursuant to this Section 2.8(c), such holder shall be entitled to the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”)Effective Time. Notwithstanding the foregoing, if the original terms and conditions applicable to a Company Market-PSU granted under a Company Stock Plan do not expressly provide for the extent treatment of such Company Market-PSU upon a termination of employment that occurs following a “change in control” or “corporate transaction” (as such terms are used in an applicable Company Stock Plan, or the Effective Time occurs on or after January 1award agreement, 2021as applicable), then, upon such Company Market-PSU becoming an Assumed Company Performance Unit Award, the foregoing provisions of this terms set forth on Section 2.8(c) shall be of no force or effect and the portion 3.6 of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 Disclosure Schedule shall be treated as deemed to apply to such Assumed Company Employee RSUs subject to Section 2.8(b)(i) hereofPerformance Unit Award; provided thatprovided, 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 all other terms and conditions applicable to the relevant such Company PSUs for the performance period ending on December 31, 2020, the Compensation Committee of the Company Board Market-PSU shall make such determination with the approval of Parent (which shall not be unreasonably withheld)continue to apply unaffected.
Appears in 2 contracts
Samples: Merger Agreement (CAESARS ENTERTAINMENT Corp), Merger Agreement (Eldorado Resorts, Inc.)
Company PSUs. At least five Business Days prior to Neither the Surviving Corporation nor Parent shall assume any Company PSU or substitute for any Company PSU any similar award for the Surviving Corporation or Parent stock, in connection with the Merger or any of the other Transactions. Effective as of the Effective Time, the Compensation Committee of the Company Board shall (i) cause any then-current performance period applicable to any Company PSUs to end, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, such Company PSU shall, at the Effective Time, whether vested or unvested, automatically, Time and without any further action on the part of Parent, Merger Sub, the Company or the any 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 PSUs, such each Company PSUs PSU that is then outstanding shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will automatically be cancelled canceled and converted into the right to receive (Ai) a number from the Surviving Corporation an amount of shares of Parent Common Stock, cash equal to the sum of (x) the product of (IA) the Exchange Ratio, multiplied by (II) the total number of shares of Company Common Stock subject then underlying such Company PSUs pursuant to vesting under the applicable Company PSU based on grant terms, with, for the achievement avoidance of doubt, all performance conditions determined immediately prior metrics deemed achieved at 100%, multiplied by (B) the Closing Cash Consideration, without any interest thereon (the “Company PSU Cash Consideration”) and (ii) CVRs in an amount equal to the Effective Time pursuant to this Section 2.8(c), plus (y) the quotient of (I) the product of (aa) the total number of shares of Company Common Stock described then underlying such Company PSUs pursuant to the applicable Company PSU grant terms, with, for the avoidance of doubt, all performance metrics deemed achieved at 100%, and each holder of any such Company PSU shall cease to have any rights with respect thereto, except the right to receive consideration in clause (A)(x)(II) above, multiplied by (bb) accordance with this Section 1.5(c). The Surviving Corporation shall pay the Company PSU Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal without interest thereon and subject to all deduction for any required withholding Taxes due upon settlement as contemplated in Section 1.7, at the Effective Time or at the Surviving Corporation’s next ordinary course payroll date (that is at least 5 Business Days following the Effective Time) and with respect to a CVR such payment will be made, without interest thereon and subject to deduction for any required withholding as contemplated in Section 1.7, if, and only if, a Milestone Payment for 2026 and/or a Milestone Payment for 2027 is made and will be made at the same time such applicable Milestone Payment is made to other holders of such Company PSU as described in clause (A)CVRs; provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due notwithstanding anything to the holder contrary contained herein, payment in respect of a Company PSU pursuant to this Section 2.8(c), such holder the CVR shall only be entitled to the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”). Notwithstanding the foregoing, made to the extent that such payment is made not later than five years after the Effective Time occurs on or after January 1Closing Date, 2021, and no amount in respect of the foregoing provisions of this Section 2.8(c) CVR shall be paid to any holder of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; provided that, in the event that the Effective Time occurs on or after January 1, 2021, if as of the date that is such 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 PSUs 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)year period.
Appears in 2 contracts
Samples: Merger Agreement (Alimera Sciences Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Company PSUs. (i) At least five Business Days the Effective Time, each Company PSU that is held by an Employee and that is outstanding immediately prior to the Effective Time, the Compensation Committee of the Company Board shall (i) cause any then-current performance period applicable to any Company PSUs to end, Time and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed except as set forth on Schedule 2.8(cSection 1.6(e)(i) of the Company Disclosure LetterLetter (each, an “Employee PSU”) shall be assumed and converted into a restricted stock unit (each, an “Adjusted Employee PSU”) with the level of achievement of same terms and conditions (including with respect to the performance remaining term and vesting schedule) as were applicable to such Employee PSU immediately prior to the Effective Time (except that the performance-based vesting conditions applicable to such Company PSUs Employee PSU immediately prior to the Effective Time shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, such Company PSU shall, at not apply from and after 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled and converted into the right relating to receive (A) a number of shares of Parent Common Stock, Guarantor Ordinary Shares equal to the sum of (x) the product of (I) the Exchange Ratio, multiplied by (IIi) the number of shares of Company Common Stock subject to vesting under the Company such Employee PSU based on the achievement of performance conditions determined immediately prior to the Effective Time pursuant based on the attainment of the applicable performance metrics (x) for those Employee PSUs that vest based on performance metrics related to this Section 2.8(c)total stockholder return, plus at the actual level of performance through the Effective Time, as determined in good faith and consistent with past practice by the Company Board or a committee thereof, (y) for those Employee PSUs that vest based on performance metrics related to data science, at the quotient greater of the actual level of performance through the Effective Time (Iif calculable), as determined in good faith and consistent with past practice by the Company Board or a committee thereof, or the target level of performance, and (z) for each other Employee PSU, at the target level of performance, multiplied by (ii) the Equity Award Conversion Ratio, with any fractional shares rounded to the nearest whole number of shares.
(ii) At the Effective Time, each Company PSU that is not an Employee PSU and that is outstanding immediately prior to the Effective Time (each, a “Non-Employee PSU”) shall be canceled and converted into the right to receive an amount in cash, without interest, equal to the product of (aai) the number of shares of Company Common Stock described subject to such Non-Employee PSU immediately prior to the Effective Time based on the attainment of the applicable performance metrics (x) for those Non-Employee PSUs that vest based on performance metrics related to total stockholder return, at the actual level of performance through the Effective Time, as determined in clause good faith and consistent with past practice by the Company Board or a committee thereof, (A)(x)(IIy) abovefor those Non-Employee PSUs that vest based on performance metrics related to data science, at the greater of the actual level of performance through the Effective Time (if calculable), as determined in good faith and consistent with past practice by the Company Board or a committee thereof, or the target level of performance, and (z) for each other Non-Employee PSU, at the target level of performance, multiplied by (bbii) the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of such Company PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a Company PSU pursuant to this Section 2.8(c), such holder shall be entitled to the applicable the Fractional Share Merger Consideration (such consideration collectively, the “Non-Employee PSU Consideration”). Notwithstanding The Surviving Corporation shall, and Parent shall cause the foregoingSurviving Corporation to, pay through the payroll of the Surviving Corporation (to the extent that applicable) to each holder of a Non-Employee PSU the Effective Time occurs on or after January 1Non-Employee PSU Consideration, 2021less any required withholding Taxes, the foregoing provisions of this Section 2.8(cwithin two (2) shall be of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; 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 Business Days following the Effective Time; provided, that to the Compensation Committee extent payment within such time or on such date would trigger a Tax or penalty under Section 409A of the Company Board has Code, such payments shall be made on the earliest date that payment would not yet made a final determination of the level of achievement of the performance conditions applicable to the relevant Company PSUs for the performance period ending on December 31, 2020, the Compensation Committee of the Company Board shall make trigger such determination with the approval of Parent (which shall not be unreasonably withheld)Tax or penalty.
Appears in 1 contract
Company PSUs. (i) At least five Business Days the Effective Time, each Company PSU that is outstanding as of immediately prior to the Effective Time, the Compensation Committee Time and is vested in accordance with its terms but not yet settled as of the Company Board shall Effective Time (i) cause any then-current performance period applicable to any Company PSUs to endeach, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such “Vested Company PSU, such Company PSU ”) shall, at the Effective Time, whether vested or unvested, automatically, automatically and without any further required 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled and converted into the right to receive (A) a number of shares of Parent Common Stockan amount in cash, without interest, equal to the sum of product obtained by multiplying (x1) the product of (I) the Exchange Ratio, multiplied by (II) the total number of shares of Company Common Stock underlying such Company PSU, by (2) the Merger Consideration, subject to vesting under any required withholding of Taxes (the “Vested Company PSU based on the Consideration”).
(ii) The achievement of applicable performance conditions determined metrics of each Company PSU that is outstanding as of immediately prior to the Effective Time pursuant and not a Vested Company PSU (each, an “Unvested Company PSU”) for which the applicable performance period has not been completed, will be determined, prior to this Section 2.8(cthe Effective Time in good faith by the Company Board or a committee thereof in accordance with the terms of the applicable Company PSU award agreement (any achieved Unvested Company PSUs, the “Achieved Unvested Company PSUs”). At the Effective Time, plus each Achieved Unvested Company PSUs shall, automatically and without any required action on the part of the holder thereof, be converted into the contingent right to receive an aggregate amount in cash, without interest, equal to the product obtained by multiplying (y1) the quotient of (I) the product of (aa) the total number of shares of Company Common Stock described in clause (A)(x)(II) aboveunderlying such Achieved Unvested Company PSU, multiplied by (bb2) the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of such Company PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a Company PSU pursuant to this Section 2.8(c), such holder shall be entitled to the applicable the Fractional Share Merger Consideration (such consideration collectively, the “Unvested Company PSU Consideration”). Notwithstanding the foregoing, Subject to the extent that holder’s continued service with Parent and its Affiliates (including the Effective Time occurs on or after January 1Surviving Corporation and its Subsidiaries) through the applicable vesting dates, 2021, such Unvested Company PSU Consideration will vest and become payable at the foregoing provisions of this Section 2.8(c) shall be of no force or effect and the portion of same time as the Company PSUs that became PSU from which such Unvested Company PSU Consideration was converted would have vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 pursuant to its terms and shall be treated as Company Employee RSUs otherwise remain subject to Section 2.8(b)(i) hereof; provided that, in the event that same terms and conditions as were applicable to the Effective Time occurs on or after January 1, 2021, if as of the date that is five (5) days underlying Achieved Unvested Company PSU immediately prior to the Effective Time, the Compensation Committee including vesting acceleration terms (except for terms rendered inoperative by reason of the Company Board has not yet made a final transactions contemplated by this Agreement or for such other administrative or ministerial changes as in the reasonable and good faith determination of Parent are appropriate to conform the level of achievement administration of the performance conditions applicable to Achieved Unvested Company PSU Consideration amounts, provided that no such changes shall adversely affect the relevant Company PSUs for the performance period ending on December 31, 2020, the Compensation Committee rights of the applicable holder of Unvested Company Board shall make such determination PSU Consideration unless necessary to comply with applicable Law) with respect to receipt of the approval of Parent (which shall not be unreasonably withheld)Unvested Company PSU Consideration.
Appears in 1 contract
Samples: Merger Agreement (Smartsheet Inc)
Company PSUs. At least five Business Days Immediately prior to the Effective TimeDate, the Compensation Committee of the Company Board shall (iA) cause any each then-current performance period applicable to any Company PSUs to end, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs outstanding award for such performance period; provided, that restricted stock units with respect to Company Shares that vests based on both performance and the passage of time (each, a “Company PSU”) granted under any holder of Company PSUs listed on Schedule 2.8(c) Share Plan prior to calendar year 2021, whether or not vested, that vests and is paid out (except as required under Section 409A of the Company Disclosure LetterCode) immediately prior to the Effective Date in accordance with its terms as in effect on the date of this Agreement (each, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such a “Cash-Out Company PSU, such Company PSU ”) shall, at the Effective Time, whether vested or unvested, automatically, 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled and converted into the right to receive receive, and the Company shall pay to each former holder of any such award of Cash-Out Company PSUs an amount in cash equal to the product of (Ai) the Consideration and (ii) the number of Company Shares subject to such Cash-Out Company PSU award (with such number of Company Shares based on the greater of the target level achievement and the actual level of achievement of any performance goals as determined by the Board immediately prior to the Effective Date based on pro-rated performance goals to account for any shortened performance period), payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after the Effective Date (or at such later date as required under Section 409A of the Code) and (B) each then-outstanding Company PSU granted under any Company Share Plan, whether or not vested, that is not a Cash-Out Company PSU, including, for the avoidance of doubt, each then-outstanding Company PSU that was granted in calendar year 2021 (the “2021 Company PSU”) (each, a “Rollover Company PSU”) shall, automatically and without any action on the part of the holder thereof, be assumed by BidCo and converted into, on substantially the same terms and conditions as were applicable under such Rollover Company PSU award (but excluding any performance conditions), an award for restricted stock units with respect to a number of shares of Parent BidCo Common Stock, Stock (rounded up to the nearest whole number of shares) equal to the sum of (x) the product of (I) the Exchange Ratio, multiplied by (IIi) the number of shares Company Shares subject to such Rollover Company PSU award (with such number of Company Common Stock subject to vesting under the Company PSU Shares based on the greater of the target level achievement and the actual level of achievement of any performance conditions goals as determined by the Board immediately prior to the Effective Time pursuant Date based on pro-rated performance goals to this Section 2.8(c), plus account for any shortened performance period) and (yii) the quotient of Equity Award Exchange Ratio (I) each, a “BidCo PSU”). From and after the product of (aa) Effective Date, each such BidCo PSU award shall be eligible to continue to vest on each date that the number of shares of applicable Rollover Company Common Stock described in clause (A)(x)(II) above, multiplied by (bb) the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined PSU award would have otherwise time-vested in accordance with its terms but only if such conditions to vesting are satisfied prior to each such vesting date (excluding any performance conditions); provided, that if the employment or service of the grantee of such BidCo PSU award is terminated prior to each such vesting date either (i) by BidCo or one of its Affiliates without Cause or as a result of death or Disability (each as defined in the award agreement pursuant to which the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of such Rollover Company PSU as described in clause (A); provided that in lieu award was granted, which definitions, for purposes of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a 2021 Company PSU pursuant to this awards, shall be the same as the definitions in the Company PSU award agreements evidencing the grants made in calendar year 2020) or (ii) by the grantee for Good Reason (as defined in Section 2.8(c9.5, if applicable), such holder shall be entitled to the applicable the Fractional Share Consideration (such consideration collectivelythen, in each case, the “BidCo PSU Consideration”). Notwithstanding the foregoing, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions of this Section 2.8(c) award shall be of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; provided that, in the event that the Effective Time occurs on or after January 1, 2021, if fully vest 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 such termination of the level of achievement of the performance conditions applicable to the relevant Company PSUs for the performance period ending on December 31, 2020, the Compensation Committee of the Company Board shall make such determination employment or service and be settled in accordance with the approval of Parent (which shall not be unreasonably withheld)its terms.
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Samples: Acquisition Agreement (NCR Corp)
Company PSUs. (i) At least five Business Days prior to the Effective Time, each outstanding performance-based stock unit (each, a “Company PSU”) granted under the Compensation Committee of Stock Plans for which the Company Board shall (i) cause any then-current applicable performance period applicable to any Company PSUs to endis not complete (each, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such an “Open Performance Company PSU, such Company PSU ”) shall, at the Effective Time, whether vested or unvested, automatically, automatically and without any further required action on the part of Parent, Merger Sub, the Company or the holder thereof, be cancelled assumed by Parent and will be subject to the same terms and conditions applicable to such Open Performance Company PSU immediately prior to the Effective Time (including any accelerated vesting upon qualifying terminations 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or employment as otherwise set forth in this Section 2.8(cthe applicable Stock Plan or applicable award agreement)) , except that such Open Performance Company PSU shall no longer be subject to performance-based vesting conditions, and will such Open Performance Company PSU shall be cancelled and converted into the right to receive (A) in respect of a number of shares of Parent Common Stock, Shares that is equal to the sum of (x) the product of (I) the Exchange Ratio, multiplied by (II) the number of shares of Company Common Stock underlying such Open Performance Company PSU immediately prior to the Effective Time, assuming achievement of applicable performance goals at target level, multiplied by (y) the Exchange Ratio.
(ii) At the Effective Time, each outstanding Company PSU granted under the Stock Plans for which the applicable performance period is complete but remains subject to service-based vesting under conditions (each, a “Closed Performance Company PSU”) shall, automatically and without any required action on the part of the holder thereof, be assumed by Parent and will be subject to the same terms and conditions applicable to such Closed Performance Company PSU based on the achievement of performance conditions determined immediately prior to the Effective Time pursuant to this Section 2.8(c(including any accelerated vesting upon qualifying terminations of employment as set forth in the applicable Stock Plan or applicable award agreement), plus except that such Closed Performance Company PSU shall be in respect of a number of Parent Common Shares that is equal to (y) the quotient of (I) the product of (aax) the number of shares of Company Common Stock described in clause (A)(x)(II) above, multiplied by (bb) the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of underlying such Closed Performance Company PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a Company PSU pursuant to this Section 2.8(c), such holder shall be entitled to the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”). Notwithstanding the foregoing, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions of this Section 2.8(c) shall be of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; 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 immediately prior to the Effective Time, based on achievement of applicable performance goals at the Compensation Committee higher of target performance and actual performance as reasonably determined by the compensation committee of the Company Board has not yet made a final determination (the “Company Compensation Committee” ) in accordance with the terms of the level of achievement applicable award agreement, multiplied by (y) the Exchange Ratio.
(iii) At the Effective Time, each outstanding Company PSU granted under the Stock Plans that is subject to a deferral arrangement (a “Deferred Company PSU”) shall, automatically and without any required action on the part of the performance holder thereof, be assumed by Parent and will be subject to the same terms and conditions applicable to such Deferred Company PSU immediately prior to the relevant Effective Time (including any accelerated vesting upon qualifying terminations of employment as set forth in the applicable Stock Plan or applicable award agreement), except that such Deferred Company PSUs for the performance period ending on December 31, 2020, the Compensation Committee PSU shall be in respect of the Company Board shall make such determination with the approval a number of Parent Common Shares that is equal to (which shall not be unreasonably withheld)x) the number of shares of Company Common Stock underlying such Deferred Company PSU immediately prior to the Effective Time, assuming achievement of applicable performance goals at target level, multiplied by (y) the Exchange Ratio.
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Company PSUs. (i) At least five Business Days prior to the Effective Time, each outstanding performance stock unit denominated in shares of Company Common Stock (a “Company PSU”) under the Compensation Committee Stock Plans of the Company Board shall (i) cause any then-current performance period applicable to any Company PSUs to endgranted after December 31, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided2015, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, such Company PSU shall, at the Effective Time, whether vested or unvested, automatically, automatically and without any further action on the part of Parent, Merger Sub, the Company or the holder thereof, cease to represent a performance stock unit denominated in shares of Company Common Stock and shall be cancelled and adjusted to represent a service-based stock unit denominated in shares of no further force or effect and with no consideration payable thereforParent Common Stock (a “Parent Stock-Based RSU”). To the extent such determined achievement is at least threshold performance for any such Company PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled and converted into the right to receive (A) a The number of shares of Parent Common Stock subject to each such Parent Stock, -Based RSU shall be equal to the sum product (rounded down to the nearest whole number) of (x) the product of (I) the Exchange Ratio, multiplied by (IIA) the number of shares of Company Common Stock subject to vesting under the such Company PSU based on the achievement of performance conditions determined immediately prior to the Effective Time pursuant to this Section 2.8(c), plus (ywith any performance-based vesting conditions deemed satisfied based on actual performance through the Effective Time as provided in the applicable award agreement) multiplied by (B) the quotient Exchange Ratio. Except as specifically provided above, following the Effective Time, each such Parent Stock-Based RSU shall continue to be governed by the same terms and conditions (including service vesting terms, but excluding any performance vesting terms) as were applicable to the applicable Company PSU immediately prior to the Effective Time.
(ii) At the Effective Time, each outstanding Company PSU under the Stock Plans of the Company granted in 2014 or 2015, shall, automatically and without any action on the part of the holder thereof, be cancelled and converted into the right to receive a number of shares of Parent Common Stock equal to the product (rounded down to the nearest whole number) of (I) the product of (aaA) the number of shares of Company Common Stock described in clause (A)(x)(II) above, multiplied by (bb) subject to such Company PSU immediately prior to the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as Effective Time determined in accordance with the applicable Company Stock Planimmediately following sentence multiplied by (B) the Exchange Ratio, together with a cash payment equal to all required withholding Taxes due upon settlement the amount of any dividend equivalents accrued with respect to such Company PSU. For purposes of the immediately preceding sentence, the number of shares of Company Common Stock subject to such Company PSU shall be determined, (1) for any Company PSU granted in 2014, assuming a vesting percentage of 100%, and (2) for any Company PSU granted in 2015, with the vesting percentage determined as described set forth in clause Section 2(a) of the applicable award agreement (A); provided except that in lieu of delivering any fractional shares of Parent Common Stock otherwise due performance shall be based upon the Company’s total shareholder return relative to the holder total shareholder return of a Company PSU pursuant to this Section 2.8(c)the peer group for the period beginning on January 1, such holder shall be entitled to 2015, and ending on the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”). Notwithstanding the foregoing, to the extent that date on which the Effective Time occurs on or after January 1, 2021, as required by Section 2(c) of the foregoing provisions of applicable award agreement). Parent shall provide the consideration described in this Section 2.8(c2.5(c)(ii) shall be of no force or effect and within ten Business Days following the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31Closing Date, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; 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 less applicable to the relevant Company PSUs 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)withholdings.
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Company PSUs. At least the Effective Time, each outstanding performance stock unit or Company RSU subject to performance vesting conditions (in each case, a “Company PSU”) under the Stock Plans, whether vested or unvested, shall, automatically and without any required action on the part of the holder thereof, be cancelled and converted into only the right to receive (without interest), an amount in cash, equal to (x) the number of Shares subject to such Company PSU immediately prior to the Effective Time, multiplied by (y) the Per Share Merger Consideration. The number of Company PSUs in the preceding clause (x) will be determined based on, (A) in the case of Company PSUs granted during 2015, target performance, subject to proration for the portion of the performance period elapsed through the Effective Time; (B) in the case of Company PSUs granted during 2016, but prior to the date of this Agreement, the greater of target and actual performance as of the Effective Time; and (C) in the case of any Company PSUs granted on or after the date of this Agreement, actual performance as of the date performance is measured as prescribed by the applicable award agreement. Any determination of actual performance in respect of Company PSUs granted during 2016 shall be made by the compensation committee of the Company Board (the “Company Compensation Committee”), based on actual performance as of the Effective Time, determined through a date no earlier than five Business Days prior to the Effective Time, . Amounts payable in respect of each former Company PSU shall vest and be payable (1) in the Compensation Committee of the Company Board shall (i) cause any then-current performance period applicable to any Company PSUs to end, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder case of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, such Company PSU shallgranted during 2015, at the Effective Time, whether vested and (2) in the case of all other Company PSUs, at the time or unvestedtimes provided by and subject to the terms applicable to such Company PSU; provided that, automaticallywith respect to any Company PSU in respect of which payment is to be made at the Effective Time, such amount shall be payable in a lump sum as soon as reasonably practicable after the Effective Time (and in no event later than 30 Business Days following the Effective Time); provided further, that any other Company PSU for which neither this Agreement nor the applicable award agreement requires automatic vesting upon the occurrence of the Effective Time shall remain subject to the same vesting schedule and other relevant terms (including, without limitation, any further action on terms that provide for pro-rated vesting in connection with termination of employment) as in effect immediately before the part Effective Time and the holder of such Company PSU must remain in service to Parent, Merger Sub, the Company or any of their Affiliates through the holder thereof, be cancelled and of no further force or effect and with no consideration payable therefor. To applicable vesting date (which includes the extent such determined achievement is at least threshold performance for any vesting dates designated in the award agreement pertaining to such Company PSUsPSU, as well as the date or dates to which vesting may be accelerated in connection with the occurrence of certain events, including without limitation, termination of employment, pursuant to such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)award agreement) and will be cancelled and converted into the right to receive (A) a number of shares of Parent Common Stock, equal to the sum of (x) the product of (I) the Exchange Ratio, multiplied by (II) the number of shares of Company Common Stock subject to vesting under the Company PSU based on the achievement of performance conditions determined immediately prior to the Effective Time pursuant to this Section 2.8(c), plus (y) the quotient of (I) the product of (aa) the number of shares of Company Common Stock described payment in clause (A)(x)(II) above, multiplied by (bb) the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of such Company PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a Company PSU pursuant to this Section 2.8(c), such holder shall be entitled to the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”). Notwithstanding the foregoing, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions of this Section 2.8(c) shall be of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; 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 PSUs 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)respect thereof.
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Company PSUs. At least five Business Days prior to the Effective Time, the Compensation Committee of the Company Board shall Time (i) cause any then-current performance period applicable to any Company PSUs to end, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, such each Other Company PSU shall, at outstanding immediately prior to the Effective Time, whether vested or unvested, automaticallywill, and without any further action on the part of Parent, Merger Sub, the Company or the holder thereof, be cancelled for no consideration and (ii) each Specified Company PSU granted on December 8, 2017 or March 9, 2018 outstanding immediately prior to the Effective Time, whether vested or unvested, will, without any 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) converted into and will be cancelled and converted into the become a right to receive (A) a number of shares of Parent Common Stockan amount in cash, without interest, equal to the sum of (x) the product amount of (I) the Exchange Ratio, Per Share Price; multiplied by (IIy) the total number of shares of Company Common Stock subject to such Specified Company PSU, with any performance-based vesting under the Company PSU conditions deemed achieved based on actual performance during the achievement of applicable performance conditions determined period, which shall be shortened to end on the date immediately prior to the Effective Time pursuant Closing Date (the “PSU Consideration”); provided, however, that with respect to this Section 2.8(ceach Specified Company PSU granted on or after December 7, 2018 (each such Specified Company PSU, a “Cash Rollover Specified Company PSU”), plus the PSU Consideration shall equal (yi) the quotient of Per Share Price; multiplied by (Iii) the product of (aa) the total number of shares of Company Common Stock described in clause subject to such Specified Company PSU, with any performance-based vesting conditions deemed achieved at target, and such PSU Consideration (A)(x)(IIthe PSU Consideration payable to holders of Cash Rollover Specified Company PSUs, the “Cash Replacement PSU Amounts”) abovewill, multiplied by subject to the holder’s continued service with Parent and its Affiliates (bbincluding the Surviving Corporation and its Subsidiaries) through the Cash Considerationapplicable vesting dates, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined vest and be payable in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement terms of such Cash Rollover Specified Company PSU as described in clause (A); for which such Cash Replacement PSU Amount was exchanged, provided that in lieu no less than 50% of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a each applicable Cash Rollover Specified Company PSU pursuant to holder’s Cash Replacement PSU Amount shall vest and be payable on the first anniversary of the Closing Date and any unvested portion of the applicable Cash Rollover Specified Company PSU holder’s Cash Replacement PSU Amount shall vest and be payable on the second anniversary of the Closing Date . Except as set forth in this Section 2.8(c)with respect to specific vesting dates, such holder shall be entitled all Cash Replacement PSU Amounts will have the same terms and conditions (including, with respect to the applicable the Fractional Share Consideration vesting (such consideration collectively, the “PSU Consideration”). Notwithstanding the foregoingincluding accelerated vesting on specific terminations of employment, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions of this Section 2.8(capplicable)) shall be of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; 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 applied to the Effective Time, the Compensation Committee award of the Cash Rollover Company Board has not yet made a final determination of the level of achievement of the performance conditions applicable to the relevant Specified Company PSUs for the performance period ending on December 31which they were exchanged, 2020, the Compensation Committee except for terms rendered inoperative by reason of the Company Board shall make such determination with the approval of Parent (which shall not be unreasonably withheld)transactions contemplated by this Agreement.
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Company PSUs. At least five Business Days Immediately prior to the Effective TimeDate, the Compensation Committee of the Company Board shall (iA) cause any each then-current performance period applicable to any Company PSUs to end, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs outstanding award for such performance period; provided, that restricted stock units with respect to Company Shares that vests based on both performance and the passage of time (each, a "Company PSU") granted under any holder of Company PSUs listed on Schedule 2.8(c) Share Plan prior to calendar year 2021, whether or not vested, that vests and is paid out (except as required under Section 409A of the Company Disclosure LetterCode) immediately prior to the Effective Date in accordance with its terms as in effect on the date of this Agreement (each, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such a "Cash-Out Company PSU, such Company PSU ") shall, at the Effective Time, whether vested or unvested, automatically, 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled and converted into the right to receive receive, and the Company shall pay to each former holder of any such award of Cash-Out Company PSUs an amount in cash equal to the product of (Ai) the Consideration and (ii) the number of Company Shares subject to such Cash-Out Company PSU award (with such number of Company Shares based on the greater of the target level achievement and the actual level of achievement of any performance goals as determined by the Board immediately prior to the Effective Date based on pro-rated performance goals to account for any shortened performance period), payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after the Effective Date (or at such later date as required under Section 409A of the Code) and (B) each then-outstanding Company PSU granted under any Company Share Plan, whether or not vested, that is not a Cash-Out Company PSU, including, for the avoidance of doubt, each then-outstanding Company PSU that was granted in calendar year 2021 (the "2021 Company PSU") (each, a "Rollover Company PSU") shall, automatically and without any action on the part of the holder thereof, be assumed by BidCo and converted into, on substantially the same terms and conditions as were applicable under such Rollover Company PSU award (but excluding any performance conditions), an award for restricted stock units with respect to a number of shares of Parent BidCo Common Stock, Stock (rounded up to the nearest whole number of shares) equal to the sum of (x) the product of (I) the Exchange Ratio, multiplied by (IIi) the number of shares Company Shares subject to such Rollover Company PSU award (with such number of Company Common Stock subject to vesting under the Company PSU Shares based on the greater of the target level achievement and the actual level of achievement of any performance conditions goals as determined by the Board immediately prior to the Effective Time pursuant Date based on pro-rated performance goals to this Section 2.8(c), plus account for any shortened performance period) and (yii) the quotient of Equity Award Exchange Ratio (I) each, a "BidCo PSU"). From and after the product of (aa) Effective Date, each such BidCo PSU award shall be eligible to continue to vest on each date that the number of shares of applicable Rollover Company Common Stock described in clause (A)(x)(II) above, multiplied by (bb) the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined PSU award would have otherwise time-vested in accordance with its terms but only if such conditions to vesting are satisfied prior to each such vesting date (excluding any performance conditions); provided, that if the employment or service of the grantee of such BidCo PSU award is terminated prior to each such vesting date either (i) by BidCo or one of its Affiliates without Cause or as a result of death or Disability (each as defined in the award agreement pursuant to which the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of such Rollover Company PSU as described in clause (A); provided that in lieu award was granted, which definitions, for purposes of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a 2021 Company PSU pursuant to this awards, shall be the same as the definitions in the Company PSU award agreements evidencing the grants made in calendar year 2020) or (ii) by the grantee for Good Reason (as defined in Section 2.8(c9.5, if applicable), such holder shall be entitled to the applicable the Fractional Share Consideration (such consideration collectivelythen, in each case, the “BidCo PSU Consideration”). Notwithstanding the foregoing, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions of this Section 2.8(c) award shall be of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; provided that, in the event that the Effective Time occurs on or after January 1, 2021, if fully vest 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 such termination of the level of achievement of the performance conditions applicable to the relevant Company PSUs for the performance period ending on December 31, 2020, the Compensation Committee of the Company Board shall make such determination employment or service and be settled in accordance with the approval of Parent (which shall not be unreasonably withheld)its terms.
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Company PSUs. (i) At least five Business Days the Effective Time, except as otherwise agreed in writing between Parent and any individual holder of an outstanding Company PSU, each outstanding Company PSU granted under the Stock Plans for which, as of immediately prior to the Effective Time, the Compensation Committee of the Company Board shall (i) cause any then-current applicable performance period applicable to any Company PSUs to endis not complete (each, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such an “Open Performance Company PSU, such Company PSU ”) shall, at the Effective Time, whether vested or unvested, automatically, automatically and without any further required action on the part of Parent, Merger Sub, the Company or the holder thereof, be cancelled assumed by Parent and will be subject to the same terms and conditions applicable to such Open Performance Company PSU immediately prior to the Effective Time (including any accelerated vesting upon qualifying terminations 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or employment as otherwise set forth in this Section 2.8(cthe applicable Stock Plan or applicable award agreement)) , except that such Open Performance Company PSU shall no longer be subject to performance-based vesting conditions, and will such Open Performance Company PSU shall be cancelled and converted into the right to receive (A) in respect of a number of shares of Parent Common Stock, Shares that is equal to the sum of (x) the product of (I) the Exchange Ratio, multiplied by (II) the number of shares of Company Common Stock subject to vesting under the underlying such Open Performance Company PSU based on the achievement of performance conditions determined immediately prior to the Effective Time pursuant to this Section 2.8(c)Time, plus assuming achievement of applicable performance goals at target level, multiplied by (y) the quotient Exchange Ratio; provided, that, with respect to all Open Performance Company PSUs for which the applicable performance period ends on or before December 31, 2022 (“2020 PSUs”), the number of Parent Common Shares underlying such Open Performance Company PSUs shall be determined based on actual achievement of applicable performance goals as reasonably determined by the compensation committee of the Board of Directors of Company (Ithe “Company Compensation Committee”) prior to the product Closing in accordance with the terms of the applicable award agreement.
(aaii) At the Effective Time, each outstanding Company PSU granted under the Stock Plans for which, as of immediately prior to the Effective Time, the applicable performance period is complete but has not yet been settled (each, a “Closed Performance Company PSU”) shall, automatically and without any required action on the part of the holder thereof, be cancelled and shall only entitle the holder of such Closed Performance Company PSU to receive (without interest), as soon as practicable after the Effective Time through the Surviving Corporation’s payroll, an amount in cash equal to (x) the number of shares of Company Common Stock described in clause (A)(x)(II) above, multiplied by (bb) the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of underlying such Closed Performance Company PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a Company PSU pursuant to this Section 2.8(c), such holder shall be entitled to the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”). Notwithstanding the foregoing, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions of this Section 2.8(c) shall be of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; 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 immediately prior to the Effective Time, based on actual achievement of applicable performance goals as reasonably determined by the Company Compensation Committee prior to the Closing in accordance with the terms of the applicable award agreement, multiplied by (y) the Merger Consideration, less applicable Taxes required to be withheld with respect to such payment; provided that, with respect to any Closed Performance Company Board has not yet made a final determination PSU that constitutes nonqualified deferred compensation subject to Section 409A of the level of achievement Code and that is not permitted to be paid at the Effective Time without triggering a Tax or penalty under Section 409A of the performance conditions Code, such payment shall be made at the earliest time permitted under the applicable to the relevant Company PSUs for the performance period ending on December 31, 2020, the Compensation Committee Stock Plan and award agreement that will not trigger a Tax or penalty under Section 409A of the Company Board shall make such determination with the approval of Parent (which shall not be unreasonably withheld)Code.
Appears in 1 contract
Samples: Merger Agreement (Cowen Inc.)
Company PSUs. At least five Business Days prior to the Effective Time, the Compensation Committee of the Company Board shall (i) cause any then-current performance period applicable to any Company PSUs to end, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, such Each Company PSU shallthat is unexpired, at unsettled and outstanding as of the Effective Time, whether vested or unvested, automaticallyshall, by virtue of the occurrence of the Effective Time and without any further action on the part of Parent, Merger Sub, the Company or Company, the holder thereofof such Company PSU or any other Person, 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 PSUs, such Company PSUs shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled and automatically converted into the right to receive the Per Share Merger Consideration, without interest and subject to any required withholding of Taxes. Each Company PSU for which the performance measurement period has not been completed and the level of performance achievement has not previously been determined will first be subject to the treatment set forth in the applicable award agreement (Aor in any other agreement then in effect between the holder of the Company PSU and the Company) with respect to determination of the level of performance achievement or, in the absence of any provisions setting forth such treatment, will be deemed to have a number level of shares of Parent Common Stock, performance achievement equal to 100% of the sum target level of performance achievement set forth in the applicable award agreement. The Surviving Corporation shall pay the amounts set forth in this Section 1.5(a)(vi) with respect to each Company PSU on the earlier to occur of (x) the product date set forth on Section 1.5(a) of (I) the Exchange Ratio, multiplied by (II) the number of shares of Company Common Stock subject to vesting under the Company PSU based on the achievement of performance conditions determined immediately prior to the Effective Time pursuant to this Section 2.8(c), plus Disclosure Letter and (y) the quotient date on which the holder of (Isuch Company PSU suffers a Qualifying Termination; provided, that, without limitation to any acceleration rights any holder may have under employment or other agreements in effect on the Agreement Date, the holder shall forfeit any unpaid amounts hereunder as of his or her employment termination other than a Qualifying Termination prior to the applicable payment date. Section 1.5(a)(vi) of the product Company Disclosure Letter sets forth a list of (aa) all Company PSUs that vest upon consummation by the number Company of shares of Company Common Stock described in clause (A)(x)(II) abovethe Transactions, multiplied by (bb) including the Cash ConsiderationMerger, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement terms of such Company PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a Company PSU pursuant to this Section 2.8(c), such holder shall be entitled to the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”)award agreements. Notwithstanding the foregoing, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions Table of this Section 2.8(c) shall be of no force or effect and the portion of the Company PSUs that became vested based on the achievement of performance conditions during the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; 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 PSUs 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).Contents
Appears in 1 contract
Samples: Merger Agreement (Shutterfly Inc)
Company PSUs. At least five Business Days Effective as of immediately prior to the Effective Time, the Compensation Committee of the Company Board shall (i) cause any all then-current performance period applicable to any outstanding Company PSUs to end, and (ii) with the approval of Parent (which shall not be unreasonably withheld) make a reasonable good faith determination of the level of achievement of the performance conditions applicable to such Company PSUs for such performance period; provided, that with respect to any holder of Company PSUs listed on Schedule 2.8(c) of the Company Disclosure Letter, the level of achievement of the performance conditions applicable to such Company PSUs shall be deemed at target level. To the extent such determined achievement is below the threshold performance for any such Company PSU, such Company PSU shall, at the Effective Time, whether vested or unvested), automaticallyother than CIC Year PSUs, shall become fully vested 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 each such Company PSUs, such Company PSUs PSU shall become vested at a level based on the Compensation Committee’s determination of performance (or as otherwise set forth in this Section 2.8(c)) and will be cancelled canceled and converted into the right to receive (A) a number from the Surviving Corporation an amount of shares of Parent Common Stockcash, without interest and subject to any applicable Tax withholding in accordance with Section 2.11, equal to the sum product of (x) the product total number of (I) the Exchange Ratio, shares of Company Stock then underlying such Company PSU multiplied by (IIy) the Merger Consideration, without any interest thereon and subject to all applicable withholding; provided, that, for purposes of determining the number of shares of Company Common Stock subject to vesting under the underlying each Company PSU based on the achievement of performance conditions determined outstanding immediately prior to the Effective Time pursuant Time: (1) for any portion of any Company PSU with respect to this Section 2.8(c)which the performance period has been completed as of the Closing, plus (y) the quotient of (I) the product of (aa) the number of shares of Company Common Stock described in clause underlying such portion shall be determined based on the actual level of performance achieved for the applicable performance period as determined by the HRC prior to the Closing; (A)(x)(II2) abovefor any portion of any Company PSU with respect to which the performance period has commenced but is not completed as of the Closing, multiplied by (bb) the Cash Consideration, divided by (II) the Parent Trading Price, minus (B) that number of shares of Parent Common Stock with a fair market value (as determined in accordance with the applicable Company Stock Plan) equal to all required withholding Taxes due upon settlement of underlying such Company PSU as described in clause (A); provided that in lieu of delivering any fractional shares of Parent Common Stock otherwise due to the holder of a Company PSU pursuant to this Section 2.8(c), such holder portion shall be entitled to the applicable the Fractional Share Consideration (such consideration collectively, the “PSU Consideration”). Notwithstanding the foregoing, to the extent that the Effective Time occurs on or after January 1, 2021, the foregoing provisions of this Section 2.8(c) shall be of no force or effect and the portion of the Company PSUs that became vested determined based on the achievement actual level of performance conditions during achieved as of the Closing Date (taking into account the Merger Consideration) as determined by the HRC prior to the Closing; and (3) for any portion of any Company PSU with respect to which the performance period ending on December 31, 2020 shall be treated as Company Employee RSUs subject to Section 2.8(b)(i) hereof; provided that, in the event that the Effective Time occurs on or after January 1, 2021, if has not yet commenced as of the date that is five (5) days prior to the Effective TimeClosing Date, the Compensation Committee number of the shares of Company Board has not yet made a final determination of the level of Stock underlying such portion shall be determined assuming achievement of the performance conditions applicable to the relevant Company PSUs for the performance period ending on December 31, 2020, the Compensation Committee target level of the Company Board shall make such determination with the approval of Parent (which shall not be unreasonably withheld)performance.
Appears in 1 contract
Samples: Merger Agreement (Domtar CORP)
