Common use of Treatment of Company RSUs Clause in Contracts

Treatment of Company RSUs. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately prior to the Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of a Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a payment equal to the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and (iii) in the case of any Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied as of immediately prior to the Effective Time and such portion of the Company RSU is not required (pursuant to the terms and conditions applicable to the award) to become vested in connection with the transactions contemplated by this Agreement, such Company RSU shall be cancelled immediately prior to the Effective Time without any payment being made in respect thereof. To the extent any such cancelled Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunder.

Treatment of Company RSUs. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will shall adopt appropriate resolutions and take all other actions necessary and appropriate to provide that: (i) , immediately prior to the Effective Time, each outstanding award of restricted stock units granted unit awarded pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (whether or not then vested, shall be cancelled and, in the case exchange therefor, each former holder of a any such cancelled Company RSU that is shall be entitled to receive, in consideration of the cancellation of such Company RSU and in settlement therefor, a payment in cash (subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions any applicable withholding or other Taxes required by applicable Law) of an amount equal to the awardproduct of (i) the total number of Shares previously subject to such Company RSU and become free of any restrictions and will be cancelled in exchange for the right to receive a payment equal to (ii) the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after . The holders of all canceled Company RSUs shall, as of the Effective Time, cease to have any such cancelled Company RSUs will only entitle the former holder thereof further right or entitlement to the payment acquire Shares or any shares of the RSU Payment; and (iii) in the case capital stock of any Parent or Purchaser under their canceled Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied as of immediately prior to the Effective Time and such portion of the Company RSU is not required (pursuant to the terms and conditions applicable to the award) to become vested in connection with the transactions contemplated by this Agreement, such Company RSU shall be cancelled immediately prior to the Effective Time without any payment being made in respect thereofRSUs. To the extent any such cancelled canceled Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled canceled Company RSU will shall be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunder.

Treatment of Company RSUs. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately prior to Immediately after the Effective Time, each outstanding award of restricted stock units unit granted pursuant to any under the Company Stock Option Plan Plans (the a “Company RSUsRSU”), will vest shall, automatically and without any required action on the part of the holder thereof, cease to represent a restricted stock unit denominated in shares of Company Class A Common Stock and shall be converted into a restricted stock unit denominated in shares of Parent Common Stock (in the case a “Converted Parent RSU”). The number of a Company RSU that is shares of Parent Common Stock subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a payment each such Converted Parent RSU shall equal to the Merger Consideration product (with the result rounded down to the nearest whole number) of (i) the number of shares of Company Class A Common Stock subject to such amounts payable hereunder being referred Company RSU immediately prior to as the “RSU Payments”); Effective Time multiplied by (ii) from and after the Exchange Ratio. Except as specifically provided above, following the Effective Time, any each such cancelled Company RSUs will only entitle Converted Parent RSU shall continue to be governed by the former holder same terms and conditions (including vesting (and acceleration thereof upon the Closing, to the payment of extent provided therein), forfeiture and settlement terms) as were applicable to the corresponding Company RSU Paymentat the Effective Time; and provided, however, that (iiiA) in to the case of extent that any Company RSU that is subject to vesting solely upon achievement of a performance-based vesting conditionTarget Price (a “Target Price RSU”) would, to the extent the applicable performance-based vesting condition has not been satisfied by its terms, expire as of immediately prior to the Effective Time, such Target Price RSU shall be amended such that it will not expire upon the Effective Time and such portion instead shall become a Converted Parent RSU, and remain eligible to vest upon satisfaction of the applicable Adjusted Target Price, (B) all Converted Parent RSUs held by a Company RSU is not required Employee (pursuant other than any Converted Parent RSUs with an Adjusted Target Price) shall vest in their entirety to the terms and conditions applicable to the award) to become vested in connection with the transactions contemplated by this Agreement, extent such Company RSU Employee undergoes a Covered Termination and (C) all Converted Parent RSUs with an Adjusted Target Price held by a Company Employee shall be cancelled immediately prior for no consideration or payment to the Effective Time without extent such Company Employee undergoes any payment being made in respect thereof. To termination of employment (including a Covered Termination) and at the extent any such cancelled Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder time of such cancelled Company RSU will be distributed in accordance with Section 409A of termination, the Code and the applicable Treasury Regulations thereunderAdjusted Target Price is not achieved.

Treatment of Company RSUs. (a) Effective immediately prior to the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each restricted stock unit award, vested or unvested, that (i) corresponds to Shares, (ii) is granted under the Company Equity Plan (each, a “Company RSU”) other than to a non-employee director and (iii) is outstanding immediately prior to the Effective Time shall be cancelled and converted into an award of restricted stock units covering the number of shares of Parent Common Stock, rounded down to the nearest whole share, (“Converted RSUs”), equal to the product of (x) the number of Shares subject to such award of Company RSUs and (y) the sum of (A) 0.097, and (B) the quotient obtained by dividing (i) the Per Share Cash Merger Consideration by (ii) the Parent Common Stock VWAP. (b) Effective immediately prior to the Effective Time, by virtue of the Merger and without any action on the part of the holders thereof, each Company RSU award that is held by a non-employee director and is outstanding immediately prior to the Effective Time shall vest in full and shall be cancelled and converted into the right to receive the Per Share Merger Consideration multiplied by the number of Shares subject to such award of Company RSUs. All payments described in this Section 2.4(b) shall be paid in accordance with the payment provisions in this Article 2. (c) Any Converted RSUs issued pursuant to Section 2.4(a) shall be subject to the same terms and conditions as were applicable under such Company RSUs (including any applicable change of control or other accelerated vesting provisions, whether pursuant to an award agreement or any other agreement between the Company and any holder of any award of Company RSUs or pursuant to any other arrangement or plan applicable to any holder of an award of Company RSUs). (d) Prior to the Effective Time, the Company and the Company Board (or, if appropriate, any or an applicable committee thereof) will shall adopt such resolutions and take all other actions as are necessary to authorize and appropriate give effect to provide that: (i) immediately the treatment of the Company RSUs in accordance with this Section 2.4, including delivering all required notices, obtaining all necessary consents. At or prior to the Effective Time, Parent shall take all actions necessary to reserve for issuance a number of shares of Parent Common Stock in respect of each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of a Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a payment equal to the Merger Consideration (such amounts payable hereunder being referred to Converted RSU. As soon as the “RSU Payments”); (ii) from and after practicable on or following the Effective Time, Parent shall file a registration statement on Form S-8, Form S-3 or Form S-1 (or any such cancelled Company RSUs will only entitle the former holder thereof successor or other appropriate form), as applicable, with respect to the payment shares of the RSU Payment; and (iii) in the case of any Company RSU that is Parent Common Stock subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied as each such award of immediately prior to the Effective Time and such portion of the Company RSU is not required (pursuant to the terms and conditions applicable to the award) to become vested in connection with the transactions contemplated by this Agreement, such Company RSU shall be cancelled immediately prior to the Effective Time without any payment being made in respect thereof. To the extent any such cancelled Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunderConverted RSUs.

Treatment of Company RSUs. Prior to No outstanding Company RSUs shall be assumed by Parent or the Surviving Corporation. (i) At the Effective Time, each Vested Company RSU outstanding immediately prior to the Effective Time shall, without any action on the part of Parent, Merger Sub, the Company Board or the holder thereof, be canceled and converted into, and shall become a right to receive, an amount in cash, without interest, equal to the product of (orA) the Merger Consideration multiplied by (B) the total number of Shares subject to such award of Vested Company RSUs (the “Vested RSU Consideration”). As soon as practicable following the Closing, if appropriateand in no event later than the second (2nd) regular payroll cycle following the Closing Date (subject to local requirements), Parent shall cause the Surviving Corporation or its designee (including the Paying Agent) to pay to each holder of a Vested Company RSU, the Vested RSU Consideration, less any committee thereofapplicable Taxes, in accordance with Applicable Law. (ii) will adopt resolutions At the Effective Time, each Unvested Company RSU held by an individual who is providing services to the Company or its Subsidiaries immediately prior to the Effective Time which is outstanding immediately prior to the Effective Time shall be canceled and take all other actions necessary and appropriate exchanged for the right to provide that: receive an amount in cash, without interest, equal to the product of (iA) the Merger Consideration multiplied by (B) the total number of Shares subject to such award of Unvested Company RSUs (the “Unvested RSU Consideration”), with such Unvested RSU Consideration vesting in accordance with the vesting schedule applicable to such Unvested Company RSU immediately prior to the Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of a Company RSU that is subject to a performance-based such holder remaining employed by or otherwise in service to Parent on each applicable vesting condition, date. The vesting will and payment of the Unvested RSU Consideration shall also be determined in accordance with subject to the terms and conditions applicable of the Unvested Payment Plan. In the event that such holder does not execute and deliver an Unvested Payment Plan Agreement within the timeframe set forth in such Unvested Payment Plan Agreement, such holder shall forfeit any and all rights with respect to the award) and become free of Unvested Company RSUs, including any restrictions and will be cancelled in exchange for the right to receive a payment equal payments with respect to such Unvested Company RSUs pursuant to the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and Unvested Payment Plan. (iii) in the case of any Each Unvested Company RSU that is subject to held by a performancecurrent non-based vesting condition, to employee director of the extent the applicable performance-based vesting condition has not been satisfied as of Company Board immediately prior to the Effective Time and such portion shall, without any action on the part of Parent, Merger Sub, the Company RSU is not required (pursuant or the holder thereof, be canceled and converted into, and shall become a right to receive, an amount in cash, without interest, equal to the terms product of (A) the Merger Consideration multiplied by (B) the total number of Shares subject to such award of Unvested Company RSUs. As soon as practicable, and conditions applicable to in no event later than two (2) Business Days, following the awardClosing Date, Parent shall cause the Surviving Corporation or its designee (including the Paying Agent) to become vested pay to each non-employee director the amounts set forth in connection with this Section 2.09(b)(iii). (iv) At the transactions contemplated by this AgreementEffective Time, such each Company RSU shall be cancelled held by a Person other than an individual described in Section 2.09(b)(i), Section 2.09(b)(ii), or Section 2.09(b)(iii) which is outstanding immediately prior to the Effective Time shall, without any payment being made in respect thereof. To action on the extent any such cancelled part of Parent, Merger Sub, the Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to or the holder within such period without thereof, be immediately canceled at the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunderEffective Time for no consideration.

Treatment of Company RSUs. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) , immediately prior to the Effective Time, each outstanding award of restricted stock units granted unit awarded pursuant to any Company Stock Option the Xyratex Amended and Restated 2006 Incentive Award Plan (the “Company RSUs”), ) will vest (in and the case number of a shares subject to such Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable issued to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a payment equal to the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and (iii) in the case of any Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied as of immediately prior to the Effective Time and each such portion of the Company RSU is not required (pursuant to the terms and conditions applicable to the award) to become vested in connection with the transactions contemplated by this Agreement, such Company RSU shall share will be cancelled immediately prior to treated at the Effective Time without any payment being made the same as, and have the same rights and be subject to the same conditions of, the Shares described in respect thereofArticle 2 above. To the extent any such cancelled Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to treatment set forth in the immediately preceding sentence would cause the holder within such period without the holder’s incurrence of to incur a Tax and/or an interest penalty Tax and interest penalties under Section 409A of the Code, then such Company RSUs will be cancelled in exchange for the right to receive a cash payment of an amount equal to the product of (A) the total number of Shares subject to such Company RSU and (B) the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”), and any such RSU Payments otherwise payable to the holder of such cancelled canceled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunder.

Treatment of Company RSUs. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately prior to At the Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of a Company RSU RSUs that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a payment equal to the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and (iii) in the case of any Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied outstanding as of immediately prior to the Effective Time and such portion of the Company RSU held by a Continuing Service Provider who is not required a Specified Company Award Holder shall be assumed by Parent and converted into an award of Parent RSUs (pursuant each award of Company RSUs so assumed by Parent, an “Assumed RSU Award”). Following the Effective Time, each such Assumed RSU Award will continue to have, and be subject to, the same terms and conditions set forth in the applicable Company Award Agreement, the applicable Company Equity Incentive Plan and any other document applicable to the award) to become vested in connection with the transactions contemplated by this Agreement, such Company RSU shall award, except that (A) each such Assumed RSU Award will be cancelled converted into an award for that number of Parent RSUs equal to the product of the number of shares of Company Common Stock that were subject to such award of Company RSUs immediately prior to the Effective Time without any payment being made multiplied by the Conversion Ratio, rounded down to the nearest whole Parent RSU, (B) in respect thereof. To of any Assumed RSU Awards related to Unvested Company RSUs, will vest during the applicable calendar year in which vesting is to occur (the “Vest Year”) on March 15, June 15, September 15 or December 15 (each such date, a “Standard Quarterly Vesting Date” and collectively, the “Standard Quarterly Vesting Dates”) following the Closing (it being understood that as of the Effective Time, the vesting condition related to a “Change of Control” (as defined for purposes of Company RSUs in the applicable Company Award Agreement) will be deemed satisfied), (C) in respect of any Assumed RSU Awards related to Unvested Company RSUs, will have a vesting schedule providing for vesting in equal installments on the Standard Quarterly Vesting Dates that occur during the Vest Year of the related award of Company RSUs (and to the extent any Assumed RSU Awards have a Vest Year that occurs in the same calendar year in which the Effective Time occurs, such cancelled Assumed RSU Awards related to Unvested Company RSUs will vest in equal installments on the remaining Standard Quarterly Vesting Dates that occur on or after the Effective Time); provided, that no such vesting of Unvested Company RSUs shall occur until the first applicable Standard Quarterly Vesting Date that occurs on or after the Effective Time, (D) in respect of any Assumed RSU Awards related to Unvested Company RSUs, vesting under clause C shall be subject to the Continuing Service Provider continuing to provide services to Parent and its Affiliates through the applicable vesting date, except to the extent the holder is eligible for accelerated vesting based on constructive termination, resignation for good reason or any term of similar effect pursuant to an agreement that remains in effect following the Effective Time (subject to clause (F)), (E) in respect of any Assumed RSU Awards related to Vested Company RSUs, will be settled within 30 days following the Closing Date, and with respect to Assumed RSU Awards related to Unvested Company RSUs, will be settled within the time period permitted under the applicable Company Award Agreement, with shares otherwise deliverable upon settlement of Assumed RSU Awards to be withheld or sold to cover applicable Taxes, to the extent such method does not violate Applicable Law, and (F) to the extent any applicable holder has waived accelerated vesting based on constructive termination, resignation for good reason or any term of similar effect effective as of the Effective Time, no Assumed RSU Award that is subject to such waiver will be subject to accelerated vesting based on a deferred payment schedule pursuant constructive termination, resignation for good reason or any term of similar effect. Following the Effective Time, the Parent Board of Directors or a committee thereof shall succeed to the applicable distribution provisions of Section 409A authority and responsibility of the Code so Company Board of Directors or any committee thereof with respect to each Assumed RSU Award. It is intended that each Assumed RSU Award held by a Continuing Service Provider who is subject to taxation in the RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU United States will be distributed assumed and converted by Parent in accordance with a manner that results in such Assumed RSU Award remaining exempt from Section 409A of the Code and this Section 2.05(b)(i) will be construed consistently with such intent. (ii) Each Unvested Company RSU held by a Person who does not constitute a Continuing Service Provider shall be canceled and extinguished at the applicable Treasury Regulations thereunderEffective Time (with no consideration payable in connection with such cancellation and extinguishment). In no event shall the Company RSUs described in this Section 2.05(b)(ii) be assumed by Parent.

Treatment of Company RSUs. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately prior to As of the Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of unit representing a Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a Share (each, a “Company RSU”) granted under a Company Stock Plan that is vested or becomes vested as of the Effective Time and that is outstanding at the Effective Time (each, a “Vested Company RSU”) shall be cancelled and, in exchange therefor, each former holder of any such cancelled Vested Company RSU shall be entitled to receive, in consideration of the cancellation of such Vested Company RSU and in settlement therefor, a payment in cash (subject to all applicable withholding or other Taxes required by applicable Law) of an amount equal to the product of (i) the total number of Shares subject to such Vested Company RSU immediately prior to such cancellation and (ii) the Merger Consideration (such awards and the amounts payable hereunder thereunder being referred to as the “Vested RSU Payments”); . The Vested RSU Payments shall be paid by Parent or the Surviving Corporation as soon as practicable (iiand in any event within five (5) from Business Days) following the Effective Time, without interest. From and after the Effective Time, any such cancelled a Vested Company RSUs will RSU shall no longer represent the right to receive Shares upon vesting, but shall entitle the holder thereof but shall only entitle the former such holder thereof to the payment of the Vested RSU Payment; and , if any. (iiiii) in As of the case of any Effective Time, each Company RSU that is subject to a performance-based vesting conditionoutstanding at the Effective Time, to the extent it is unvested as of the Effective Time, (each an “Unvested Company RSU”) shall be assumed by Parent and shall be converted into an award entitling the holder to a payment in cash (subject to all applicable performance-based withholding or other Taxes required by applicable Law) of an amount equal to the product of (i) the total number of Shares subject to such Unvested Company RSU immediately prior to such conversion and (ii) the Merger Consideration (such awards and the amounts payable thereunder being referred to as the “Unvested RSU Payments” and, together with the Vested RSU Payments, the “RSU Payments”). The Unvested RSU Payment which a former holder of an Unvested Company RSU may be eligible to receive shall (x) be earned subject to the same vesting condition has not been satisfied schedule and other vesting terms and conditions (including any applicable acceleration provisions, except as otherwise agreed to by Parent and selected holders thereof in writing with respect to acceleration provisions relating to certain specified employment or other service termination rights) which applied to such holder’s Unvested Company RSU as of the Effective Time and (y) become payable, less any required withholding Taxes, on the date or dates that such Unvested Company RSU would have become vested under the vesting schedule in place for such Unvested Company RSU as of immediately prior to the Effective Time and (or an alternative date during the month in which such portion of the Unvested Company RSU is not required (pursuant to would otherwise vest). From and after the terms and conditions applicable to the award) to become vested in connection with the transactions contemplated by this AgreementEffective Time, such an Unvested Company RSU shall be cancelled immediately prior no longer represent the right to receive Shares upon vesting, but shall entitle the Effective Time without any holder thereof upon vesting to receive the cash payment being made in respect thereof. To due under the extent any such cancelled Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the Unvested RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunderaward.

Treatment of Company RSUs. Prior to At the Effective Time, the Company Board (or, if appropriate, A) any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately prior to the Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of a Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the awardeach restricted stock unit (a “Company RSU”) and become free of any restrictions and will be cancelled in exchange for the right to receive a payment equal to the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and (iii) in the case of any Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied as of outstanding immediately prior to the Effective Time under the Stock Plan, shall, automatically and such portion without any required action on the part of the holder thereof, be deemed satisfied in full, and (B) each Company RSU is not shall, automatically and without any required (pursuant to action on the terms part of the holder thereof, be cancelled and conditions applicable to shall only entitle the award) to become vested in connection with the transactions contemplated by this Agreement, holder of such Company RSU shall be cancelled to receive (without interest) the Per Share Merger Consideration in respect of each Class A Share subject to such Company RSU immediately prior to the Effective Time without any payment being (in the case of Company RSUs subject to performance conditions, with such conditions deemed satisfied at “target” levels), less applicable Taxes required to be withheld with respect to such payment. Such Per Share Merger Consideration shall include either the Per Share Cash Consideration or the Per Share Stock Consideration at the election of the holder of the Company RSU, made in respect thereofaccordance with the procedure set out in Section 4.3(b), and shall be subject to proration as set out in Section 4.3(c) and (d). To the extent any that a holder of Company RSUs is entitled to receive Per Share Stock Consideration, whether due to such cancelled Company RSU is holder’s election or the proration set out in Section 4.3(c) and (d), such holder shall receive one Continuing Class A Share in respect of each Class A Share subject to a Company RSU that entitles such holder to receive the Per Share Stock Consideration. Payment of such Per Share Merger Consideration, with respect to Company RSUs, including delivery of any Continuing Class A Shares, shall be made as soon as reasonably practicable after the Closing Date; provided that, with respect to any Company RSUs that constitute nonqualified deferred payment schedule pursuant compensation subject to the applicable distribution provisions of Section 409A of the Code so and that the RSU Payments canare not permitted to be paid to at the holder within such period Effective Time without the holder’s incurrence of triggering a Tax or penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to such payment shall be made at the holder of such cancelled Company RSU earliest time permitted under the Stock Plan and award agreement that will be distributed in accordance with not trigger a Tax or penalty under Section 409A of the Code and the applicable Treasury Regulations thereunderCode.

Treatment of Company RSUs. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately Immediately prior to the Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of unit representing a Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a Share (each, a “Company RSU”) granted under a Company Stock Plan that is outstanding immediately prior to the Effective Time shall be cancelled and, in exchange therefor, each former holder of any such cancelled Company RSU shall be entitled to receive from the Company, in consideration of the cancellation of such Company RSU and in settlement therefor, a payment in cash (subject to all applicable withholding or other Taxes required by applicable Law) of an amount equal to the product of (i) the total number of Shares subject to such Company RSU immediately prior to such cancellation and (ii) the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); provided, however, that with respect to each Company RSU, (iiA) from one-half of the RSU Payments, without interest, shall be paid to the holder of such Company RSU as of immediately prior to the Effective Time on the one-year anniversary of the Closing Date and (B) the remaining one-half of the RSU Payments, without interest, shall be paid to the holder of such Company RSU as of immediately prior to the Effective Time on the two-year anniversary of the Closing Date, in each case subject to such holder’s continued employment with the Surviving Corporation or its Subsidiaries on each applicable payment date; provided, further, that if such holder’s employment with the Surviving Corporation and its Subsidiaries is terminated by the Surviving Corporation or one of its Subsidiaries, as applicable, without Cause (as defined in Section 2.4(b) of the Company Disclosure Schedule) or due to such holder’s death or permanent disability (each, a “Qualifying Termination”), the remaining unpaid portion of the RSU Payments shall be paid to such holder as described in the immediately succeeding sentence on the first payroll date following the date of such Qualifying Termination.. From and after the Effective Time, any such cancelled Company RSUs will RSU shall no longer represent the right to receive a Share by a holder thereof, but shall only entitle the former such holder thereof to the payment of the RSU Payment; and (iii) in the case of any Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied as of immediately prior to the Effective Time and such portion of the Company RSU is not required (pursuant to the terms and conditions applicable to the award) to become vested in connection with the transactions contemplated by this Agreement, such Company RSU shall be cancelled immediately prior to the Effective Time without any payment being made in respect thereof. To the extent any such cancelled Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunder.

Treatment of Company RSUs. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereofa) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately prior to At the Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of a Vested Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a payment equal to the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and (iii) in the case of any Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied outstanding as of immediately prior to the Effective Time shall be canceled and such extinguished and the Vested RSU Holder shall be entitled to receive, subject to Section 2.11, (i) the Per Share Closing Consideration, (ii) the right to receive a portion of the Company RSU is not required Adjustment Amount, if any, payable to the Indemnitors in accordance with Section 2.08(b)(vii), (iii) the right to receive distributions, if any, from the Indemnity Escrow Fund in accordance with Article 10 and the Escrow Agreement and (iv) the right to receive distributions, if any, of the Securityholder Expense Fund pursuant to Section 11.01(c) (collectively, the terms “Vested RSU Consideration”). Payments of the Vested RSU Consideration to current and conditions applicable former employees of the Acquired Companies shall be remitted through the payroll system of the Surviving Company. The Per Share Closing Consideration payable to Vested RSU Holders under this Section 2.07(a) shall be paid as soon as administratively practicable, but in no event later than four (4) Business Days, following the Effective Time; provided, that, notwithstanding anything to the award) to become vested contrary contained in connection with the transactions contemplated by this Agreement, such any payment in respect of any Vested Company RSU which immediately prior to such cancellation is “deferred compensation” subject to Section 409A of the Code shall be cancelled made on the applicable settlement date(s) for such Vested Company RSU if required in order to comply with Section 409A of the Code. (b) Except as provided in Section 2.07(c), at the Effective Time, each award of Unvested Company RSUs that is outstanding immediately prior to the Effective Time without shall be assumed by Parent and converted into an award of Parent RSUs (each award of Unvested Company RSUs so assumed by Parent, an “Assumed RSU Award”). Following the Effective Time, each such Assumed RSU Award will continue to have, and be subject to, the same terms and conditions set forth in the applicable Company RSU award documents, including the applicable Company Equity Incentive Plan and agreement or other document evidencing such Company RSU award, except that each such Assumed RSU Award will cover a number of whole shares of Parent Stock equal to the product of the number of shares of Company Common Stock that were subject to such Unvested Company RSUs immediately prior to the Effective Time multiplied by the Conversion Ratio, rounded down to the nearest whole number of shares of Parent Stock. Following the Effective Time, the Parent Board of Directors or a committee thereof shall succeed to the authority and responsibility of the Company Board of Directors or any payment being made committee thereof with respect to each Assumed RSU Award. (c) Each Company RSU held by a non-employee director or former non-employee director, if any, of any Acquired Company, shall be canceled and extinguished at the Effective Time and the holder thereof shall be paid the consideration contemplated by Section 2.07(a) in respect thereofconnection with such cancellation and extinguishment. To Each Company RSU held by a consultant or former consultant, if any, of any Acquired Company shall be canceled and extinguished at the extent any Effective Time and, if such cancelled Company RSU is subject to a deferred payment schedule pursuant to Vested Company RSU, the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot holder thereof shall be paid to the holder within consideration contemplated by Section 2.07(a) in connection with such period without cancellation and extinguishment. In no event shall the holder’s incurrence of a penalty Tax and interest penalties under Company RSUs described in this Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will 2.07(c) be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunderassumed by Parent.

Treatment of Company RSUs. Prior to the Effective Offer Acceptance Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) , immediately prior to the Effective Offer Acceptance Time, by virtue of the consummation of the Offer, each outstanding award of restricted stock units granted unit awarded pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of a Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and the Company will as promptly as practicable thereafter deliver with respect to such Company RSU (i) shares of Company Common Stock (such that such shares may be tendered in the Offer) and (ii) the amount of any declared but unpaid dividends to the holder thereof in settlement of each such Company RSU. At the Effective Time, each share of Company Common Stock issued in respect of the Company RSUs (that has not otherwise been tendered in the Offer or in any subsequent offering period) will be cancelled in exchange for converted into the right to receive a payment equal to the Merger Consideration in accordance with Section 3.1(a) (such amounts payable hereunder under this Section 3.4(b) being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and (iii) in the case of any Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied as of immediately prior to the Effective Time and such portion of the Company RSU is not required (pursuant to the terms and conditions applicable to the award) to become vested in connection with the transactions contemplated by this Agreement, such Company RSU shall be cancelled immediately prior to the Effective Time without any payment being made in respect thereof. To the extent any such cancelled canceled Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled canceled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunder.

Treatment of Company RSUs. (a) At the Effective Time, all of the Vested Company RSUs outstanding immediately prior to the Effective Time will, automatically and without any action on the part of any Company RSU Holder, or beneficiary thereof, be deemed settled and converted into the right to receive (I) that number of shares of Newco Class A Common Stock (with fractional shares of a Company RSU Holder aggregated and rounded down to the nearest whole share) determined by finding the quotient of (i) (A) the number of shares of Company Class A Common Stock underlying such Vested Company RSU, multiplied by (B) the Per Share Equity Value, minus (C) the applicable withholding taxes relating to the deemed settlement of such Vested Company RSU (to the extent the number calculated under this sub-clause (i) is a positive number), divided by (ii) the Reference Price and (II) upon a Triggering Event, the applicable Per Share Earnout Consideration (with any fractional share to which any holder of Company Shares would otherwise be entitled rounded down to the nearest whole share) in accordance with Section 4.11, in each case without interest. As of the Effective Time, all Company RSUs shall no longer be outstanding and each holder of Company RSUs shall cease to have any rights with respect to such Company RSUs, except as set forth in this Section 4.04(a). (b) At the Effective Time, all of the Unvested Company RSUs outstanding immediately prior to the Effective Time, automatically and without any action on the part of any Company RSU Holder or beneficiary thereof, will be assumed by DSAC, and each such Unvested Company RSU shall be converted into a restricted stock unit (each, a “Converted RSU”) of shares of Newco Class A Common Stock. Each such Converted RSU as so assumed and converted shall continue to have and be subject to substantially the same terms and conditions as were applicable to such Company RSU immediately before the Effective Time (including vesting (if applicable) and payment provisions), except that, as of the Effective Time, each such Converted RSU as so assumed and converted shall be settled for (i) that number of shares of Newco Class A Common Stock determined by multiplying the number of Company Shares subject to such Company RSU immediately prior to the Effective Time by the Exchange Ratio, which product shall be rounded down to the nearest whole number of shares and (ii) upon a Triggering Event, the applicable Per Share Earnout Consideration (with any fractional share rounded down to the nearest whole share). As of the Effective Time, all Unvested Company RSUs shall no longer be outstanding and each holder of Converted RSUs shall cease to have any rights with respect to such Unvested Company RSUs, except as set forth in this Section 4.04(b). (c) Prior to the Effective Time, the Company Board shall deliver to each Company RSU Holder a notice setting forth the effect of the Merger on such Company RSU Holder’s Company RSU and describing the treatment of such Company RSUs in accordance with this Section 4.04. (or, if appropriate, any committee thereofd) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately prior Prior to the Effective Time, each outstanding award the Company shall have taken (or caused to be taken) all such actions as are reasonably necessary or appropriate to effect the treatment of restricted stock units granted Company Options and Company RSUs pursuant to any Company Stock Option Plan (Section 4.03 and Section 4.04 as of the “Company RSUs”), will vest (in the case of a Company RSU that is subject to a performance-based vesting condition, vesting will be determined Effective Time in accordance with Applicable Law and the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a payment equal to the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and (iii) in the case of any Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied as of immediately prior to the Effective Time and such portion of the Company RSU is not required (pursuant to the terms Equity Plan and conditions applicable to the award) to become vested in connection with the transactions contemplated by this Agreement, such any Contracts evidencing Company RSU shall be cancelled immediately prior to the Effective Time without any payment being made in respect thereof. To the extent any such cancelled Options or Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunderRSUs.

Treatment of Company RSUs. Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately prior to As of the Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of unit representing a Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a Share (each, a “Company RSU”) granted under a Company Stock Plan that is vested or becomes vested as of the Effective Time and that is outstanding at the Effective Time (each, a “Vested Company RSU”) shall be cancelled and, in exchange therefor, each former holder of any such cancelled Vested Company RSU shall be entitled to receive, in consideration of the cancellation of such Vested Company RSU and in settlement therefor, a payment in cash (subject to all applicable withholding or other Taxes required by applicable Law) of an amount equal to the product of (i) the total number of Shares subject to such Vested Company RSU immediately prior to such cancellation and (ii) the Merger Consideration (such awards and the amounts payable hereunder thereunder being referred to as the “Vested RSU Payments”); . The Vested RSU Payments shall be paid by Parent or the Surviving Corporation as soon as practicable (iiand in any event within five (5) from Business Days) following the Effective Time, without interest. From and after the Effective Time, any such cancelled a Vested Company RSUs will RSU shall no longer represent the right to receive Shares upon vesting, but shall entitle the holder thereof but shall only entitle the former such holder thereof to the payment of the Vested RSU Payment; and , if any. (iiiii) in As of the case of any Effective Time, each Company RSU that is subject to a performance-based vesting conditionoutstanding at the Effective Time, to the extent it is unvested as of the Effective Time (each an “Unvested Company RSU”), shall be assumed by Parent and shall be converted into an award entitling the holder to a payment in cash (subject to all applicable performance-based withholding or other Taxes required by applicable Law) of an amount equal to the product of (i) the total number of Shares subject to such Unvested Company RSU immediately prior to such conversion and (ii) the Merger Consideration (such awards and the amounts payable thereunder being referred to as the “Unvested RSU Payments” and, together with the Vested RSU Payments, the “RSU Payments”). The Unvested RSU Payment which a former holder of an Unvested Company RSU may be eligible to receive shall (x) be earned subject to the same vesting condition has not been satisfied schedule and other vesting terms and conditions (including any applicable acceleration provisions, except as otherwise agreed to by Parent and selected holders thereof in writing with respect to acceleration provisions relating to certain specified employment or other service termination rights) which applied to such holder’s Unvested Company RSU as of the Effective Time and (y) become payable, less any required withholding Taxes, on the date or dates that such Unvested Company RSU would have become vested under the vesting schedule in place for such Unvested Company RSU as of immediately prior to the Effective Time and (or an alternative date during the month in which such portion of the Unvested Company RSU is not required (pursuant to would otherwise vest). From and after the terms and conditions applicable to the award) to become vested in connection with the transactions contemplated by this AgreementEffective Time, such an Unvested Company RSU shall be cancelled immediately prior no longer represent the right to receive Shares upon vesting, but shall entitle the Effective Time without any holder thereof upon vesting to receive the cash payment being made in respect thereof. To due under the extent any such cancelled Company RSU is subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the Unvested RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunderaward.

Treatment of Company RSUs. Prior to As of the Effective Time, Business Day immediately preceding the Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) immediately prior to the REIT Merger Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of a Company RSU that is subject to a performance-based vesting condition, vesting will be determined in accordance with the terms and conditions applicable to the award) and become free of any restrictions and will be cancelled in exchange for the right to receive a payment equal to the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and (iii) in the case of any Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied outstanding as of immediately prior to the REIT Merger Effective Time (whether or not then vested or subject to any performance condition that has not been satisfied) shall automatically become vested to the extent determined as set forth in the award agreement or other Company Benefit Plan governing such Company RSU, and all restrictions with respect to such portion vesting Company RSUs shall lapse. Each share of Company Common Stock resulting from the vesting of the Company RSU is not required (pursuant to the terms and conditions applicable to the award) to become vested RSUs in connection accordance with the transactions contemplated by this Agreement, preceding sentence (less the number of shares of Company Common Stock withheld to satisfy the withholding Tax obligations with respect to such Company RSU vesting) shall be cancelled treated as a share of Company Common Stock issued and outstanding immediately prior to the REIT Merger Effective Time without any payment being made in respect thereof. To and shall be converted into the extent any such cancelled Company RSU is subject right to a deferred payment schedule pursuant to receive from Parent LP the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot be paid to the holder within such period without the holder’s incurrence of a penalty Tax and interest penalties under Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will be distributed REIT Common Merger Consideration in accordance with Section 409A 3.1(b)(i). As of the Code Business Day immediately preceding the REIT Merger Effective Time, any dividend equivalent rights associated with the Company RSUs that vest in accordance with this Section 3.3(b) (the “Company Dividend Equivalents”) shall automatically become fully vested and converted into the right to receive an amount in cash equal to the value of such Company Dividend Equivalents as of immediately prior to the REIT Merger Effective Time, less applicable withholding Tax obligations (the “Company Dividend Equivalent Payment”). As of the REIT Merger Effective Time, each holder of Company RSUs shall cease to have any rights with respect thereto, except the right to receive from Parent LP the REIT Common Merger Consideration (including the right, if any, to receive, pursuant to Section 3.9, cash in lieu of fractional Parent Common Shares into which such shares of Company Common Stock have been converted pursuant to Section 3.1(b)(i)) and the applicable Treasury Regulations thereunderCompany Dividend Equivalent Payment in accordance with this Agreement.

Treatment of Company RSUs. Prior (a) Subject to the terms and conditions of this Agreement, at the Effective Time, the each Vested Company Board (or, if appropriate, any committee thereof) will adopt resolutions and take all other actions necessary and appropriate to provide that: (i) RSU outstanding immediately prior to the Effective Time, each outstanding award of restricted stock units granted pursuant to any Company Stock Option Plan (the “Company RSUs”), will vest (in the case of a Company RSU that is subject to a performance-based vesting condition, vesting Time will be determined in accordance with canceled without further action by the terms parties hereto and conditions applicable to the award) and become free of any restrictions and will shall be cancelled in exchange for converted into the right to receive a payment equal per Ordinary Share subject to the Merger Consideration (such amounts payable hereunder being referred to as the “RSU Payments”); (ii) from and after the Effective Time, any such cancelled Company RSUs will only entitle the former holder thereof to the payment of the RSU Payment; and (iii) in the case of any Vested Company RSU that is subject to a performance-based vesting condition, to the extent the applicable performance-based vesting condition has not been satisfied as of immediately prior to the Effective Time and such portion of the Company RSU is not required (pursuant after giving effect to the terms and conditions applicable to the award) to become vested any acceleration resulting from or in connection with the transactions contemplated by Merger) (without interest and subject to Section 3.3): (i) the Residual Per Share Amount, as allocated in accordance with and subject to Section 2.15 and provided in the Closing Allocation Schedule; (ii) any cash disbursements required to be made from the General Escrow Amount, the Tax Escrow Amount, Xxxx & Xxxxx Escrow Amount and Expense Fund, in each case, with respect to such share to the former holder of such Vested Company RSU in accordance with this Agreement, the terms of the Escrow Agreement and as provided in the Closing Allocation Schedule when such disbursements, if any, are required to be made; (iii) the Earn-Out Consideration Per Share, if any, if and when distributed in accordance with and subject to Section 2.16 and Section 2.18; and (iv) any adjustment pursuant to Section 3.6(d) as set forth therein and the Closing Allocation Schedule. (b) At the Effective Time, each Unvested Company RSU, shall, by virtue of the Merger, and without any further action on the part of any holder thereof, be terminated and canceled and shall be converted into the right to receive cash proceeds from the Xxxx & Xxxxx Escrow Amount (upon meeting the appropriate milestone, as set forth and pursuant to the RSU Agreements). (c) The Company shall take all action necessary to ensure that all Company RSUs are treated as set forth in this Section 2.12, including (i) providing any necessary notices to, or obtaining any necessary consents from, any Company RSU holders in forms reasonably satisfactory to Buyer and (ii) adopt applicable resolutions, amend the terms of the Equity Incentive Plan or any outstanding Company RSU and take all other appropriate actions to (A) give effect to the Merger, (B) terminate the Equity Incentive Plan as of, and subject to the occurrence of, the Effective Time, and (C) ensure that after the Effective Time, no holder of a Company RSU, any other award under the Equity Incentive Plan, any beneficiary thereof or any other participant in the Equity Incentive Plan shall be cancelled have any right thereunder to acquire any securities of the Company or to receive any payment or benefit with respect to any award previously granted under the Equity Incentive Plan, except as provided in this Section 2.12. (d) Notwithstanding anything to the contrary contained in this Agreement, any payment in respect of any Vested Company RSU which immediately prior to the Effective Time without any payment being made in respect thereof. To the extent any such cancelled Company RSU is cancellation was treated as “deferred compensation” subject to a deferred payment schedule pursuant to the applicable distribution provisions of Section 409A of the Code so that the RSU Payments cannot shall be paid converted to the holder within right to receive payments pursuant to this Section 2.2 and paid on the applicable settlement date for such period without the holder’s incurrence of a penalty Tax and interest penalties under Vested Company RSU as required in order to comply with Section 409A of the Code, then any RSU Payments otherwise payable to the holder of such cancelled Company RSU will be distributed in accordance with Section 409A of the Code and the applicable Treasury Regulations thereunder.