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 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, but conditioned upon 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. 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 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 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.