Common use of Treatment of Performance Awards Clause in Contracts

Treatment of Performance Awards. At the Effective Time, each Company performance-based restricted stock unit award, that is outstanding immediately prior to the Effective Time (each, a “Company Performance Award” and, collectively with the Company Options, Company Restricted Stock and Company Restricted Stock Units, the “Company Equity Awards”), shall be converted into that number of restricted stock units of Parent Common Stock (“Converted Performance Award”) equal to the product of (A) the number of shares of Company Common Stock subject to such Company Performance Awards (provided, that if the performance period ends on or prior to the Effective Date, in accordance with the terms of any award agreement, this (A) shall equal the number of shares of Company Common Stock resulting from the achievement of the performance goals through the Effective Time) and (B) the Exchange Ratio. Any Converted Performance Awards issued pursuant to this Section 2.3(d) shall be subject to the same terms and conditions as were applicable to such Company Performance Award; provided, however, vesting provisions relating to achievement of performance targets shall be subject to revision, in the reasonable discretion of Parent, following the Closing in order to appropriately reflect the acquisition by Parent and changes to the business of the Company as a result thereof. Notwithstanding the foregoing, with respect to any Company Performance Award that vests and would otherwise be settled in accordance with the terms of such Company Performance Award upon the Effective Time, such Performance Award shall be cancelled at, the Effective Time (each, a “Cancelled Performance Award”), and, in exchange therefor, the Surviving Corporation shall pay to each former holder of any such Cancelled Performance Award, as soon as reasonably practicable after the Effective Time (or such later time as required by the applicable award agreement, any deferral agreement with respect to such Company Performance Award or as necessary to avoid a violation and/or adverse tax consequences under Section 409A of the Code), an amount in cash, without interest and less any required withholding Taxes, equal to the product of (1) the Merger Consideration and (2) the number of shares of Company Common Stock subject to such Cancelled Performance Award in accordance with the terms of such award agreements.

Treatment of Performance Awards. At Prior to the Effective Time, the Company’s board of directors (or, if appropriate, any committee thereof) shall adopt appropriate resolutions to provide that immediately prior to the Effective Time, each Company outstanding performance-based restricted stock unit awardaward with respect to Shares (each, a “Performance Award”) become vested on a prorated basis (or, with respect to any Performance Award granted after the date hereof, in accordance with Section 5.01(b) of the Company Disclosure Letter), determined in accordance with the terms of the applicable Company Stock Plan and award agreement, and paid out in accordance with Section 2.03(h). For purposes of determining the number of Shares earned pursuant to any pending performance period under such Performance Award, the Company’s board of directors (or, if appropriate, any committee thereof) shall determine that is outstanding the applicable performance goals shall be deemed to have been satisfied at 100% of the target level of performance. Each Performance Award shall be cancelled as of immediately prior to the Effective Time (each, a “Company Performance Award” and, collectively with the Company Options, Company Restricted Stock and Company Restricted Stock Units, the “Company Equity Awards”), shall be converted into that number of restricted stock units of Parent Common Stock (“Converted Performance Award”) equal to the product of (A) the number of shares of Company Common Stock subject to such Company Performance Awards (provided, that if the performance period ends on or prior to the Effective Date, in accordance with the terms of any award agreement, this (A) shall equal the number of shares of Company Common Stock resulting from the achievement of the performance goals through the Effective Time) and (B) the Exchange Ratio. Any Converted Performance Awards issued pursuant to this Section 2.3(d) shall be subject to the same terms and conditions as were applicable to such Company Performance Award; provided, however, vesting provisions relating to achievement of performance targets shall be subject to revision, in the reasonable discretion of Parent, following the Closing in order to appropriately reflect the acquisition by Parent and changes to the business of the Company as a result thereof. Notwithstanding the foregoing, with respect to any Company Performance Award that vests and would otherwise be settled in accordance with the terms of such Company Performance Award upon the Effective Time, such Performance Award shall be cancelled at, the Effective Time (each, a “Cancelled Performance Award”), and, in exchange therefor, the Surviving Corporation shall pay to each former holder of any such Cancelled Performance Award, as soon as reasonably practicable after the Effective Time (or such later time as required by the applicable award agreement, any deferral agreement with respect to such Company cancelled Performance Award or as necessary shall be entitled to avoid a violation and/or adverse tax consequences under Section 409A receive, in consideration of the Code)cancellation of such Performance Award and in settlement therefor, an amount in cash, without interest and less any required withholding Taxes, cash equal to the sum of (1) the product of (1a) the Merger Consideration and (2b) the number of performance shares earned or deemed to have been earned in accordance with this Section 2.03(d) or Section 5.01(b) of the Company Common Stock Disclosure Letter (if applicable) and (2) all dividend equivalents accrued with respect to such prorated number of performance shares subject to such Cancelled Performance Award to the extent such dividend equivalents are required by the terms and conditions set forth in the applicable award agreement for such Performance Awards as in effect prior to the date hereof, without interest (such amounts payable hereunder, the “Performance Award Payments”) (less any required Tax withholdings as provided in Section 2.05), and each Performance Award that does not vest in accordance with the terms of such award agreementsforegoing shall be cancelled for no consideration.

Treatment of Performance Awards. At the Effective Time, each Company performance-based restricted stock unit award, Each performance award that is outstanding immediately prior granted pursuant to the Effective Time Stock Plans (each, a “Company Performance Award” and, collectively with ”) that is outstanding as of immediately prior to the Company Options, Company Restricted Stock Effective Time and Company Restricted Stock Units, for which the “Company Equity Awards”)applicable performance period has not ended, shall be cancelled and converted into the right to receive cash in an amount based on the greater of target achievement and the actual level of achievement of such applicable performance metric(s) through the Effective Time as reasonably determined by the compensation committee of the board of directors of the Company in a manner that number of restricted stock units of Parent Common Stock is consistent with past practice (the “Converted Performance AwardAward Amount”) to be paid as follows: (i) a pro-rata payment equal to the product Performance Award Amount multiplied by a fraction, the numerator of which is the number of full months that have elapsed since the beginning of the applicable performance period through the Effective Time, and the denominator of which is the total number of months in such performance period, paid in accordance with Section 3.3(e), and (ii) the remaining portion of the Performance Award Amount, net of any applicable withholding Taxes, paid on the earlier of (A) the number of shares of Company Common Stock subject to date on which such Company Performance Awards (providedAward was originally scheduled to vest, that if the performance period ends on or prior subject to the Effective Date, in accordance holder’s continued employment with the terms Company or any of any award agreementits Affiliates through such date, this (A) shall equal the number of shares of Company Common Stock resulting from the achievement of the performance goals through the Effective Time) and (B) the Exchange Ratio. Any Converted Performance Awards issued pursuant to this holder’s termination of employment without “Cause” or resignation for “Good Reason” (each as defined in Section 2.3(d3.3(d) shall be subject to of the same terms and conditions as were applicable to Company Disclosure Schedule) (each such Company Performance Awardtype of termination, a “Qualifying Termination”); provided, however, vesting provisions relating to achievement of performance targets shall be subject to revision, that in the reasonable discretion of Parent, event that a holder’s employment with the Company (including any Affiliate thereof) terminates following the Closing Date for reasons other than a Qualifying Termination, such holder’s right to receive the payment specified in order to appropriately reflect the acquisition by Parent and changes to the business of the Company as a result thereof. Notwithstanding the foregoingclause (ii) above shall terminate; provided, that, with respect to any Company Performance Award Awards payable pursuant to Section 3.3(d)(ii) that vests and would otherwise constitute nonqualified deferred compensation subject to Section 409A of the Code, payment will not be settled in accordance with made until the terms of such Company Performance Award upon the Effective Time, such Performance Award shall be cancelled at, the Effective Time (each, earliest time permitted that will not trigger a “Cancelled Performance Award”), and, in exchange therefor, the Surviving Corporation shall pay to each former holder of any such Cancelled Performance Award, as soon as reasonably practicable after the Effective Time (Tax or such later time as required by the applicable award agreement, any deferral agreement with respect to such Company Performance Award or as necessary to avoid a violation and/or adverse tax consequences penalty under Section 409A of the Code), an amount in cash, without interest and less any required withholding Taxes, equal to the product of (1) the Merger Consideration and (2) the number of shares of Company Common Stock subject to such Cancelled Performance Award in accordance with the terms of such award agreements.