Common use of Merger or Change in Control Clause in Contracts

Merger or Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each outstanding Award will be treated as the Board determines (subject to the provisions of the following paragraph) without a Recipient’s consent, including, without limitation, that (A) Award will be assumed, or substantially equivalent Award will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; (B) upon written notice, the Award will terminate upon or immediately prior to the consummation of such merger or Change in Control; (C) any outstanding Award will vest and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, in whole or in part prior to or upon consummation of such merger or Change in Control, and, to the extent the Board determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (D) (I) the termination of the Award in exchange for an amount of cash and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Recipient’s rights as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Board determines in good faith that no amount would have been attained upon the exercise of the Award or realization of the Recipient’s rights, then the Award may be terminated by the Company without payment), or (II) the replacement of the Award with other rights or property selected by the Board in its sole discretion; or (E) any combination of the foregoing. In the event that the successor corporation does not assume or substitute for the Award (or portion thereof), the Recipient will fully vest in and have the right to exercise all of his or her unvested Restricted Stock Units, and all restrictions on such Restricted Stock Units will lapse.

Merger or Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each outstanding Award will be treated as the Board Administrator determines (subject to the provisions of the following paragraph) without a RecipientParticipant’s consent, including, without limitation, including that (Aa) Award Awards will be assumed, or substantially equivalent Award awards will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; (Bb) upon written noticenotice to a Participant, that the Award Participant’s Awards will terminate upon or immediately prior to the consummation of such merger or Change in Control; (Cc) any outstanding Award Awards will vest and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, in whole or in part prior to or upon consummation of such merger or Change in Control, and, to the extent the Board Administrator determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (Dd) (Ii) the termination of the an Award in exchange for an amount of cash and/or or property, if any, equal to the amount that would have been attained upon the exercise of the vested portion of such Award or realization of the RecipientParticipant’s vested rights as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Board Administrator determines in good faith that no amount would have been attained upon the exercise of the such Award or realization of the RecipientParticipant’s rights, then the such Award may be terminated by the Company without payment), or (IIii) the replacement of the such Award with other rights or property selected by the Board Administrator in its sole discretion; or (Ee) any combination of the foregoing. In taking any of the actions permitted under this Section 15.3, the Administrator will not be obligated to treat all Awards, all Awards held by a Participant, all Awards of the same type, or all portions of Awards, similarly. In the event that the successor corporation does not assume or substitute for the Award (or portion thereof), the Recipient Participant will fully vest in and have the right to exercise all of his or her unvested outstanding Options and Stock Appreciation Rights (or portions thereof) not assumed or substituted for, including Shares as to which such Awards would not otherwise be vested or exercisable, all restrictions on Restricted Stock, Restricted Stock Units, or Performance Awards (or portions thereof) not assumed or substituted for will lapse, and, with respect to Awards with performance-based vesting (or portions thereof) not assumed or substituted for, all performance goals or other vesting criteria will be deemed achieved at 100% of target levels and all restrictions other terms and conditions met, in each case, unless specifically provided otherwise under the applicable Award Agreement or other written agreement authorized by the Administrator between the Participant and the Company or any of its Subsidiaries or Parents, as applicable. In addition, unless specifically provided otherwise under the applicable Award Agreement or other written agreement authorized by the Administrator between the Participant and the Company or any of its Subsidiaries or Parents, as applicable, if an Option or Stock Appreciation Right (or portion thereof) is not assumed or substituted in the event of a merger or Change in Control, the Administrator will notify the Participant in writing or electronically that the Option or Stock Appreciation Right (or its applicable portion) will be exercisable for a period of time determined by the Administrator in its sole discretion, and the Option or Stock Appreciation Right (or its applicable portion) will terminate upon the expiration of such period. For the purposes of this Section 15.3, an Award will be considered assumed if, following the merger or Change in Control, the Award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation Right or upon the payout of a Restricted Stock Units Unit or Performance Award, for each Share subject to such Award, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the merger or Change in Control. Notwithstanding anything in this Section 15.3 to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more performance goals will lapse.not be considered assumed if the Company or its successor modifies any of such performance goals without the Participant’s consent, in all cases, unless specifically provided otherwise under the applicable Award Agreement or other written agreement authorized by the Administrator between the Participant and the Company or any of its Subsidiaries or Parents, as applicable; provided, however, a modification to such performance goals only to reflect the successor corporation’s post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Award assumption. Notwithstanding anything in this Section 15.3 to the contrary, and unless otherwise provided in an Award Agreement, if an Award that vests, is earned or paid-out under an Award Agreement is subject to Section 409A and if the change in control definition contained in the Award Agreement (or other agreement related to the Award, as applicable) does not comply with the definition of “change in control” for purposes of a distribution under Section 409A, then any payment of an amount that is otherwise accelerated under this Section will be delayed until the earliest time that such payment would be permissible under Section 409A without triggering any penalties applicable under Section 409A.

Merger or Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each outstanding Award of Restricted Stock Units will be treated as the Board Administrator determines (subject to the provisions of Section 16.3 of the following paragraphPlan) without a RecipientParticipant’s consent, including, without limitation, that (Aa) Award Awards of Restricted Stock Units will be assumed, or substantially equivalent Award awards will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; , (Bb) upon written noticenotice to Participant, that the Participant’s Award of Restricted Stock Units will terminate upon or immediately prior to the consummation of such merger or Change in Control; , (Cc) any outstanding Award Awards of Restricted Stock Units will vest and become exercisable, realizable, realizable or payable, or restrictions applicable to an Award of Restricted Stock Units will lapse, in whole or in part prior to or upon consummation of such merger or Change in Control, and, to the extent the Board determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (Dd) (Ii) the termination of the an Award of Restricted Stock Units in exchange for an amount of cash and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the RecipientParticipant’s rights as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Board Administrator determines in good faith that no amount would have been attained upon the exercise of the Award or realization of the RecipientParticipant’s rights, then the such Award of Restricted Stock Units may be terminated by the Company without payment), or (IIii) the replacement of the such Award of Restricted Stock Units with other rights or property selected by the Board Administrator in its sole discretion; , or (Ee) any combination of the foregoing. In taking any of the event that actions permitted under this Award Agreement, the successor corporation does Administrator will not assume be obligated to treat all Awards, all Awards held by a Participant, all Awards of the same type, or substitute for all portions of Awards, similarly. For purposes of clarification, the provisions of Section 16.3 of the Plan apply to the Award (or portion thereof), the Recipient will fully vest in and have the right to exercise all of his or her unvested Restricted Stock Units, and all restrictions on such Restricted Stock Units will lapse.

Merger or Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each outstanding Award the Option will be treated in accordance with the following without Participant’s consent, provided that any portion of the Option that is unvested as of the Board determines effective time of a Change in Control (subject to after first applying the provisions of Section 4(b) of Exhibit B, will terminate automatically upon such effective time: (i) the following paragraphOption will be assumed or an equivalent option or right substituted by the successor corporation or a Parent or Subsidiary of the successor corporation, or (ii) without a Recipient’s consent, including, without limitation, that (A) Award will be assumed, or substantially equivalent Award will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; (B) upon written notice, the Award will terminate upon or immediately prior to the consummation of such merger or Change in Control; (C) any outstanding Award will vest and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, in whole or in part prior to or upon consummation of such merger or Change in Control, and, to the extent the Board determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (D) (I) the termination of the Award Option in exchange for an amount of cash and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award the Option or realization of the RecipientParticipant’s rights as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Board Administrator determines in good faith that no amount would have been attained upon the exercise of the Award Option or realization of the RecipientParticipant’s rights, then the Award Option may be terminated by the Company without payment), or (IIB) the replacement of the Award Option with other equivalent rights or property selected by the Board Administrator in its sole discretion; or (Eiii) any combination of the foregoing. In taking any of the event actions permitted under this subsection 11(c), the Administrator will not be obligated to treat all Company equity awards, all equity awards held by Participant, or all equity awards of the same type, similarly. For the purposes of this provision, the Option will be considered assumed if, following the merger or Change in Control, the Option confers the right to purchase or receive, for each Share subject to the Option immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or Change in Control is not solely common stock of the successor corporation does not assume or substitute its Parent, the Administrator may, with the consent of the successor corporation, provide for the Award (consideration to be received upon the exercise of an Option, for each Share subject to the Option, to be solely common stock of the successor corporation or portion thereof), its Parent equal in fair market value to the Recipient will fully vest per share consideration received by holders of Common Stock in and have the right to exercise all of his merger or her unvested Restricted Stock Units, and all restrictions on such Restricted Stock Units will lapseChange in Control.

Merger or Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each outstanding Award will be treated as the Board Administrator determines (subject to the provisions of the following paragraph) without a RecipientParticipant’s consent, including, without limitation, that (Aa) Award Awards will be assumed, or substantially equivalent Award awards will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; (Bb) upon written noticenotice to a Participant, that the Award Participant’s Awards will terminate upon or immediately prior to the consummation of such merger or Change in Control; (Cc) any outstanding Award Awards will vest and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, in whole or in part prior to or upon consummation of such merger or Change in Control, and, to the extent the Board Administrator determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (Dd) (Ii) the termination of the an Award in exchange for an amount of cash and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the RecipientParticipant’s rights as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Board Administrator determines in good faith that no amount would have been attained upon the exercise of the such Award or realization of the RecipientParticipant’s rights, then the such Award may be terminated by the Company without payment), or (IIii) the replacement of the such Award with other rights or property selected by the Board Administrator in its sole discretion; or (Ee) any combination of the foregoing. In taking any of the actions permitted under this Section 15.3, the Administrator will not be obligated to treat all Awards, all Awards held by a Participant, all Awards of the same type, or all portions of Awards, similarly. In the event that the successor corporation does not assume or substitute for the Award (or portion thereof), the Recipient Participant will fully vest in and have the right to exercise all of his or her unvested outstanding Options and Stock Appreciation Rights (or portions thereof) not assumed or substituted for, including Shares as to which such Awards would not otherwise be vested or exercisable, all restrictions on Restricted Stock, Restricted Stock Units, or Performance Awards (or portions thereof) not assumed or substituted for will lapse, and, with respect to Awards with performance-based vesting (or portions thereof) not assumed or substituted for, all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and all restrictions other terms and conditions met, in each case, unless specifically provided otherwise under the applicable Award Agreement or other written agreement authorized by the Administrator between the Participant and the Company or any of its Subsidiaries or Parents, as applicable. In addition, unless specifically provided otherwise under the applicable Award Agreement or other written agreement authorized by the Administrator between the Participant and the Company or any of its Subsidiaries or Parents, as applicable, if an Option or Stock Appreciation Right (or portion thereof) is not assumed or substituted in the event of a merger or Change in Control, the Administrator will notify the Participant in writing or electronically that the Option or Stock Appreciation Right (or its applicable portion) will be exercisable for a period of time determined by the Administrator in its sole discretion, and the Option or Stock Appreciation Right (or its applicable portion) will terminate upon the expiration of such period. For the purposes of this Section 15.3 and Section 15.4 below, an Award will be considered assumed if, following the merger or Change in Control, the Award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation Right or upon the payout of a Restricted Stock Units Unit or Performance Award, for each Share subject to such Award, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the merger or Change in Control. Notwithstanding anything in this Section 15.3 to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more performance goals will lapse.not be considered assumed if the Company or its successor modifies any of such performance goals without the Participant’s consent, in all cases, unless specifically provided otherwise under the applicable Award Agreement or other written agreement authorized by the Administrator between the Participant and the Company or any of its Subsidiaries or Parents, as applicable; provided, however, a modification to such performance goals only to reflect the successor corporation’s post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Award assumption. Notwithstanding anything in this Section 15.3 to the contrary, and unless otherwise provided in an Award Agreement, if an Award that vests, is earned or paid-out under an Award Agreement is subject to Section 409A and if the change in control definition contained in the Award Agreement (or other agreement related to the Award, as applicable) does not comply with the definition of “change in control” for purposes of a distribution under Section 409A, then any payment of an amount that is otherwise accelerated under this Section will be delayed until the earliest time that such payment would be permissible under Section 409A without triggering any penalties applicable under Section 409A.

Merger or Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each outstanding Award the Option will be treated as the Board determines (subject to the provisions of the following paragraph) without a RecipientParticipant’s consent, including, without limitation, that (Ai) Award the Option will be assumed, or a substantially equivalent Award option will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; (Bii) upon written noticenotice to Participant, the Award that Participant’s Option will terminate upon or immediately prior to the consummation of such merger or Change in Control; (Ciii) any outstanding Award the Option will vest and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, exercisable in whole or in part prior to or upon consummation of such merger or Change in Control, and, to the extent the Board determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (Div) (IA) the termination of the Award Option in exchange for an amount of cash and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Recipient’s rights Option as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Board determines in good faith that no amount would have been attained upon the exercise of the Award or realization of the Recipient’s rightsOption, then the Award Option may be terminated by the Company without payment), or (IIB) the replacement of the Award Option with other rights or property selected by the Board in its sole discretion; or (Ev) any combination of the foregoing. In taking any of the actions permitted under this subsection 10(c), the Board will not be obligated to treat all awards, all awards held by Participant, or all awards of the same type, similarly. In the event that the successor corporation does not assume or substitute for the Award Option (or portion thereof), the Recipient Participant will fully vest in and have the right to exercise all of his the Option, including Shares as to which the Option would not otherwise be vested or her unvested Restricted Stock Unitsexercisable and, with respect to any performance-based vesting (if applicable), all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and all other terms and conditions met. In addition, if the Option is not assumed or substituted in the event of a merger or Change in Control, the Board will notify Participant in writing or electronically that the Option will be exercisable for a period of time determined by the Board in its sole discretion, and all restrictions the Option will terminate upon the expiration of such period. For the purposes of this subsection 10(c), the Option will be considered assumed if, following the merger or Change in Control, the Option confers the right to purchase or receive, for each Share subject to the Option immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such Restricted consideration received in the merger or Change in Control is not solely common stock of the successor corporation or its Parent, the Board may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Option, for each Share subject to the Option, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock Units in the merger or Change in Control. Notwithstanding anything in this Section 10(c) to the contrary, if applicable, an Option that vests, is earned or paid-out upon the satisfaction of one or more performance goals will lapsenot be considered assumed if the Company or its successor modifies any of such performance goals without Participant’s consent; provided, however, a modification to such performance goals only to reflect the successor corporation’s post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Option assumption.

Merger or Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each outstanding Award the Option will be treated as the Board determines (subject to the provisions of the following proceeding paragraph) without a RecipientParticipant’s consent, including, without limitation, that (Ai) Award the Option will be assumed, or a substantially equivalent Award option will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; (Bii) upon written noticenotice to Participant, the Award that Participant’s Option will terminate upon or immediately prior to the consummation of such merger or Change in Control; (Ciii) any outstanding Award the Option will vest and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, exercisable in whole or in part prior to or upon consummation of such merger or Change in Control, and, to the extent the Board determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (Div) (IA) the termination of the Award Option in exchange for an amount of cash and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Recipient’s rights Option as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Board determines in good faith that no amount would have been attained upon the exercise of the Award or realization of the Recipient’s rightsOption, then the Award Option may be terminated by the Company without payment), or (IIB) the replacement of the Award Option with other rights or property selected by the Board in its sole discretion; or (Ev) any combination of the foregoing. In taking any of the actions permitted under this subsection 12(c), the Board will not be obligated to treat all awards, all awards held by Participant, or all awards of the same type, similarly. In the event that the successor corporation does not assume or substitute for the Award Option (or portion thereof), the Recipient Participant will fully vest in and have the right to exercise all of his the Option, including Shares as to which the Option would not otherwise be vested or her unvested Restricted Stock Unitsexercisable and, with respect to any performance-based vesting (if applicable), all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and all other terms and conditions met. In addition, if the Option is not assumed or substituted in the event of a merger or Change in Control, the Board will notify Participant in writing or electronically that the Option will be exercisable for a period of time determined by the Board in its sole discretion, and all restrictions the Option will terminate upon the expiration of such period. For the purposes of this subsection 12(c), the Option will be considered assumed if, following the merger or Change in Control, the Option confers the right to purchase or receive, for each Share subject to the Option immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such Restricted consideration received in the merger or Change in Control is not solely common stock of the successor corporation or its Parent, the Board may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Option, for each Share subject to the Option, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock Units in the merger or Change in Control. Notwithstanding anything in this Section 12(c) to the contrary, if applicable, an Option that vests, is earned or paid-out upon the satisfaction of one or more performance goals will lapsenot be considered assumed if the Company or its successor modifies any of such performance goals without Participant’s consent; provided, however, a modification to such performance goals only to reflect the successor corporation’s post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Option assumption.

Merger or Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each outstanding Award the Compensatory Warrant will be treated as the Board determines (subject to the provisions of the following proceeding paragraph) without a RecipientParticipant’s consent, including, without limitation, that (Ai) Award the Compensatory Warrant will be assumed, or a substantially equivalent Award Compensatory Warrant will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; (Bii) upon written noticenotice to Participant, the Award that Participant’s Compensatory Warrant will terminate upon or immediately prior to the consummation of such merger or Change in Control; (Ciii) any outstanding Award the Compensatory Warrant will vest and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, exercisable in whole or in part prior to or upon consummation of such merger or Change in Control, and, to the extent the Board determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (Div) (IA) the termination of the Award Compensatory Warrant in exchange for an amount of cash and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the Recipient’s rights Compensatory Warrant as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Board determines in good faith that no amount would have been attained upon the exercise of the Award or realization of the Recipient’s rightsCompensatory Warrant, then the Award Compensatory Warrant may be terminated by the Company without payment), or (IIB) the replacement of the Award Compensatory Warrant with other rights or property selected by the Board in its sole discretion; or (Ev) any combination of the foregoing. In taking any of the actions permitted under this Section 12(c), the Board will not be obligated to treat all awards, all awards held by Participant, or all awards of the same type, similarly. In the event that the successor corporation does not assume or substitute for the Award Compensatory Warrant (or portion thereof), the Recipient Participant will fully vest in and have the right to exercise all of his the Compensatory Warrant, including Shares as to which the Compensatory Warrant would not otherwise be vested or her unvested Restricted Stock Unitsexercisable and, with respect to any performance-based vesting (if applicable), all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and all other terms and conditions met. In addition, if the Compensatory Warrant is not assumed or substituted in the event of a merger or Change in Control, the Board will notify Participant in writing or electronically that the Compensatory Warrant will be exercisable for a period of time determined by the Board in its sole discretion, and all restrictions the Compensatory Warrant will terminate upon the expiration of such period. For the purposes of this Section 12(c), the Compensatory Warrant will be considered assumed if, following the merger or Change in Control, the Compensatory Warrant confers the right to purchase or receive, for each Share subject to the Compensatory Warrant immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such Restricted consideration received in the merger or Change in Control is not solely common stock of the successor corporation or its Parent, the Board may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of the Compensatory Warrant, for each Share subject to the Compensatory Warrant, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock Units in the merger or Change in Control. Notwithstanding anything in this Section 12(c) to the contrary, if applicable, an Compensatory Warrant that vests, is earned or paid-out upon the satisfaction of one or more performance goals will lapsenot be considered assumed if the Company or its successor modifies any of such performance goals without Participant’s consent; provided, however, a modification to such performance goals only to reflect the successor corporation’s post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Option assumption.

Merger or Change in Control. In the event of a merger of the Company with or into another corporation or other entity or a Change in Control, each outstanding Award will be treated as the Board Administrator determines (subject to the provisions of the following paragraph) without a RecipientParticipant’s consent, including, without limitation, that (Aa) Award Awards will be assumed, or substantially equivalent Award awards will be substituted, by the acquiring or succeeding corporation (or an affiliate thereof) with appropriate adjustments as to the number and kind of shares and prices; (Bb) upon written noticenotice to a Participant, that the Award Participant’s Awards will terminate upon or immediately prior to the consummation of such merger or Change in Control; (Cc) any outstanding Award Awards will vest and become exercisable, realizable, or payable, or restrictions applicable to an Award will lapse, in whole or in part prior to or upon consummation of such merger or Change in Control, and, to the extent the Board Administrator determines, terminate upon or immediately prior to the effectiveness of such merger or Change in Control; (Dd) (Ii) the termination of the an Award in exchange for an amount of cash and/or property, if any, equal to the amount that would have been attained upon the exercise of such Award or realization of the RecipientParticipant’s rights as of the date of the occurrence of the transaction (and, for the avoidance of doubt, if as of the date of the occurrence of the transaction the Board Administrator determines in good faith that no amount would have been attained upon the exercise of the such Award or realization of the RecipientParticipant’s rights, then the such Award may be terminated by the Company without payment), or (IIii) the replacement of the such Award with other rights or property selected by the Board Administrator in its sole discretion; or (Ee) any combination of the foregoing. In taking any of the actions permitted under this Section 15.3, the Administrator will not be obligated to treat all Awards, all Awards held by a Participant, all Awards of the same type, or all portions of Awards, similarly. In the event that the successor corporation does not assume or substitute for the Award (or portion thereof), the Recipient Participant will fully vest in and have the right to exercise all of his or her unvested outstanding Options and Stock Appreciation Rights (or portions thereof) not assumed or substituted for, including Shares as to which such Awards would not otherwise be vested or exercisable, all restrictions on Restricted Stock, Restricted Stock Units, or Performance Awards (or portions thereof) not assumed or substituted for will lapse, and, with respect to Awards with performance-based vesting (or portions thereof) not assumed or substituted for, all performance goals or other vesting criteria will be deemed achieved at one hundred percent (100%) of target levels and all restrictions other terms and conditions met, in each case, unless specifically provided otherwise under the applicable Award Agreement or other written agreement authorized by the Administrator between the Participant and the Company or any of its Subsidiaries or Parents, as applicable. In addition, unless specifically provided otherwise under the applicable Award Agreement or other written agreement authorized by the Administrator between the Participant and the Company or any of its Subsidiaries or Parents, as applicable, if an Option or Stock Appreciation Right (or portion thereof) is not assumed or substituted in the event of a merger or Change in Control, the Administrator will notify the Participant in writing or electronically that the Option or Stock Appreciation Right (or its applicable portion) will be exercisable for a period of time determined by the Administrator in its sole discretion, and the Option or Stock Appreciation Right (or its applicable portion) will terminate upon the expiration of such period. For the purposes of this Section 15.3 and Section 15.4 below, an Award will be considered assumed if, following the merger or Change in Control, the Award confers the right to purchase or receive, for each Share subject to the Award immediately prior to the merger or Change in Control, the consideration (whether stock, cash, or other securities or property) received in the merger or Change in Control by holders of Common Stock for each Share held on the effective date of the transaction (and if holders were offered a choice of consideration, the type of consideration chosen by the holders of a majority of the outstanding Shares); provided, however, that if such consideration received in the merger or Change in Control is not solely common stock of the successor corporation or its Parent, the Administrator may, with the consent of the successor corporation, provide for the consideration to be received upon the exercise of an Option or Stock Appreciation Right or upon the payout of a Restricted Stock Units Unit, or Performance Award, for each Share subject to such Award, to be solely common stock of the successor corporation or its Parent equal in fair market value to the per share consideration received by holders of Common Stock in the merger or Change in Control. Notwithstanding anything in this Section 15.3 to the contrary, an Award that vests, is earned or paid-out upon the satisfaction of one or more performance goals will lapse.not be considered assumed if the Company or its successor modifies any of such performance goals without the Participant’s consent, in all cases, unless specifically provided otherwise under the applicable Award Agreement or other written agreement authorized by the Administrator between the Participant and the Company or any of its Subsidiaries or Parents, as applicable; provided, however, a modification to such performance goals only to reflect the successor corporation’s post-Change in Control corporate structure will not be deemed to invalidate an otherwise valid Award assumption. Notwithstanding anything in this Section 15.3 to the contrary, and unless otherwise provided in an Award Agreement, if an Award that vests, is earned or paid-out under an Award Agreement is subject to Section 409A and if the change in control definition contained in the Award Agreement (or other agreement related to the Award, as applicable) does not comply with the definition of “change in control” for purposes of a distribution under Section 409A, then any payment of an amount that is otherwise accelerated under this Section will be delayed until the earliest time that such payment would be permissible under Section 409A without triggering any penalties applicable under Section 409A.