Performance Period Complete. Except as otherwise agreed between NYCB and Flagstar, at the Effective Time, each outstanding performance share unit award under the Flagstar Stock Plans (a “Flagstar PSU”) for which the applicable performance period is complete, including awards granted prior to the date of this Agreement under the Executive Long-Term Incentive Program and Flagstar PSUs granted in 2019, whether vested or unvested, shall, automatically and without any action on the part of the holder thereof, cease to represent a performance share unit denominated in shares of Flagstar Common Stock and shall be converted into the right to receive the Merger Consideration in respect of the number of shares of Flagstar Common Stock subject to such Flagstar PSU immediately prior to the Effective Time based on actual performance through completion of the applicable performance period as determined by the compensation committee of the Flagstar Board (the “Flagstar Compensation Committee”) in its reasonable judgement, less applicable Tax withholding, which shall be delivered as soon as reasonably practicable following the Closing Date and in no event later than five (5) days following the Closing Date; provided, that, with respect to any Flagstar PSUs that constitute nonqualified deferred compensation subject to Section 409A of the Code and that are not permitted to be paid at the Effective Time without triggering a Tax or penalty under Section 409A of the Code, such payment shall be made at the earliest time permitted under the applicable Flagstar Stock Plan and award agreement that will not trigger a Tax or penalty under Section 409A of the Code.
