**Exhibit 10.5**

 

**UHS HOLDCO, INC.**

 

**FORM OF OPTION AGREEMENT EVIDENCING A GRANT OF AN OPTION UNDERTHE 2007 STOCK OPTION PLAN**

 

ThisOption Agreement (this “Agreement”) is made **[                      ]**,20    , between UHS Holdco, Inc., a Delawarecorporation (the “Company”), and **[                      ]**(“Grantee”).  Capitalized termsused but not defined herein shall have the meanings assigned to such terms inthe Plan (as defined below).

 

1.             **Grantof Option.**  Pursuant tothe UHS Holdco, Inc. Stock Option Plan (the “Plan”), the Companyhereby grants to Grantee, as of the date hereof, a stock option (the “Option”)to purchase from the Company **[        ]**shares (the “Shares”) of the Company’s common stock, $0.01 par value pershare (the “Common Stock”), at the exercise price per share of $**[          ]**(the “Exercise Price”), subject to the terms and conditions set forthherein and in the Plan.  Upon certainevents, the number of Shares and/or the Exercise Price may be adjusted asprovided in the Plan.

 

2.             **GranteeBound by Plan.**  The Plan isincorporated herein by reference and made a part hereof.  Grantee hereby acknowledges receipt of a copyof the Plan and agrees to be bound by all the terms and provisionsthereof.  The Plan should be carefullyexamined before any decision is made to exercise the Option.

 

3.             **Exerciseof Option.**  Subject tothe terms and conditions contained herein, including Section 7hereof, and in the Plan, the Option may be exercised, in whole or in part, tothe extent it has become vested, by written notice to the Company at any timeand from time to time after the date of grant. The Option may not be exercised for a fraction of a share of CommonStock.  Options are subject tocancellation as provided in the Plan.

 

4.             **Expiration of Option.**

 

(a)           The Option shall not be exercisable in any event tenyears after the date hereof.  Any part ofthe Option that is not vested on the Termination Date shall expire and beforfeited on such date, and any part of the Option that is vested on theTermination Date shall also expire and be forfeited to the extent not exercisedon or before 90 days following the Termination Date or such shorter period ifsuch 90-day period would exceed the original term of the Option; provided,that in the event of the death or disability of the Grantee, any part of theOption that is vested on the date of the Termination Date shall expire and beforfeited to the extent not exercised on or before 180 days following theTermination Date or such shorter period if such 180-day period would exceed theoriginal term of the Option.

 

(b)           Subject to Section 5(d),all unvested Performance Vesting Options shall terminate in their entirety,without any action on the part of the Company, upon the occurrence of a Sale ofthe Company.

 

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5.             **Vestingof Performance Vesting Options.**

 

(a)           A portion of the Option granted under this Agreementrepresenting the right to purchase[                      ]Shares (the “Performance Vesting Options”) shall vest in whole or inpart and become exercisable with respect to the Shares prior to the tenthanniversary of the date hereof upon the attainment of certain goals and uponcertain events as described in this Section 5.

 

(b)           The Performance Vesting Option shall vest and becomeexercisable with respect to 16.66% of the Shares (rounded to the nearest wholeshare) on each December 31 after the date hereof (a “PerformanceVesting Date”) during the period beginning on the date hereof and ending onDecember 31, 20[    ](1) (such period of time isreferred to as the “Performance Vesting Period”), if and only if,(i) the Grantee remains continuously employed with the Company and/or anyof its Subsidiaries during the period beginning on the date hereof and endingon the applicable Performance Vesting Date and (ii) the Company’s AdjustedEBITDA (as defined below) for such fiscal year equals or exceeds the AdjustedTarget EBITDA (as defined below) for such fiscal year; provided, however,at the end of each fiscal year of the Company during the Performance VestingPeriod, if the sum of the Company’s Adjusted EBITDA for the fiscal year endingon such Performance Vesting Date and the Company’s Adjusted EBITDA for each ofthe previous fiscal years during the Performance Vesting Period equals at least100% of the sum of the Adjusted Target EBITDA for the fiscal year ending onsuch Performance Vesting Date and the Adjusted Target EBITDA for each of theprevious fiscal years during the Performance Vesting Period (such determinationis referred to herein as the “Aggregate Test”), then the PerformanceVesting Options shall vest and become exercisable for the number of Shareswhich will result in the aggregate number of Shares which are vested as of theend of such fiscal year being equal to the greater of (A) the number ofShares that would have otherwise vested and become exercisable as determinedwithout regard to the Aggregate Test and (B) the number of Shares whichwould have vested if 16.66% of the Shares vested on each Performance VestingDate ending on or prior to the Performance Vesting Date which is the last dayof such fiscal year.

 

(c)           Notwithstanding anything contained herein to thecontrary, (i) if the Company or any of it Subsidiaries consummates anacquisition of another Person, a disposition of the Company or any of itsSubsidiaries to another Person or any similar transaction during any fiscalyear of the Company or (ii) if the accounting policies, procedures or rules towhich the Company is subject change, in either case during the PerformanceVesting Period, then the Adjusted Target EBITDA for the remainder of suchfiscal year after such transaction or the effective date of such change and allsubsequent fiscal years during the Performance Vesting Period will be adjustedin good faith by the Committee, and each such adjusted and approved AdjustedTarget EBITDA shall be deemed the applicable Adjusted Target EBITDA for suchfiscal year and each such subsequent fiscal years for all purposes hereunderduring the Performance Vesting Period. Any such adjustment to the Adjusted Target EBITDA will not 

 

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(1)          This will refer to the fifth year after the yearduring which grants are made (e.g., for grants made in 2010, insert “15”).

 

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affectthe Adjusted Target EBITDA or the Aggregate Test with respect to any fiscalyears (or a portion of any fiscal year) prior to the consummation of suchtransaction.

 

(d)           In the event of a Sale of the Company, so long asthe Grantee remains continuously employed by the Company and/or any of itsSubsidiaries during the period beginning on the date hereof and ending on thedate that such Sale of the Company is consummated **[(or if the Grantee is terminated without Cause or the Grantee resignsfor Good Reason in the 30 days period prior to the consummation of such Sale ofthe Company, the Grantee shall be deemed to have been continuously employed bythe Company and/or any of its Subsidiaries during the period beginning on thedate hereof and ending on the date that such Sale of the Company is consummatedfor purposes of this Section 5(d) only)]** thePerformance Vesting Options shall vest and become immediately exercisable withrespect to 100% of the Shares and, subject to Sections 5.10 and 6.4 of thePlan, shall remain exercisable for a period of 90 days following such Sale ofthe Company.

 

(e)           For purposes of this Section 5, thefollowing terms have the following meanings:

 

(i)            “Adjusted EBITDA”means, with respect to the Company and its Subsidiaries, on a consolidatedbasis, for any fiscal year, the sum of: (A) the net income for such fiscalyear (before the payment of any dividends and excluding the effect of anyextraordinary gains or losses during such period and the effect of any purchaseaccounting adjustments as a result of the acquisition of UHS by the Company), plus(B)  interest expense, federal, state, foreign and local income,franchise, and other similar taxes, depreciation and amortization for suchfiscal year, plus (C) any management fees paid to Irving PlaceCapital Merchant Manager III, L.P. (formerly known as Bear Stearns MerchantManager III, L.P., formerly known as Bear Stearns Merchant Manager III(Cayman), L.P.) or its Affiliates (collectively, “BSMB”) pursuant to theAmended and Restated Professional Services Agreement, dated as of February 1,2008, by and between UHS and Irving Place Capital Merchant Manager III, L.P.(formerly known as Bear Stearns Merchant Manager III, L.P., formerly known asBear Stearns Merchant Manager III (Cayman), L.P.), as amended, modified orrestated from time to time (the “Services Agreement”), any managementfees paid to any other institutional investor that owns shares of Common Stockand any director fees paid to members of the Board, in each case, during suchfiscal year, plus (D) any non-cash charges to the extent that suchcharges will not result in a cash charge in any future period (including anynon-cash expenses relating to the options under FAS 123(R)) during such fiscalyear, plus (E) any fees paid by the Company or UHS to DavidDovenberg, but not to exceed $250,000 in any fiscal year, plus (orminus) (F) any unusual and non-recurring losses (or gains) for such fiscalyear, minus (G) any non-cash gains during such fiscal year, in eachcase, as determined in accordance with United States generally acceptedaccounting principles and as set forth on the Company’s financial statementsfor such fiscal year which have been approved by the Board.

 

(ii)           “Adjusted Target EBITDA”means, for any fiscal year of the Company during the Performance Vesting Period,the Base Target EBITDA (as set forth or 

 

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provided for in Annex I attached hereto)for such year; provided, that the Committee shall make appropriateadjustments to any Adjusted Target EBITDA (i) to the extent that there arematerial deviations in the amount of capital expenditures actually incurred bythe Company during any fiscal year from the Capital Expenditures Target (as setforth or provided for in Annex I attached hereto) for such fiscalyear and (ii) in accordance with Section 5(c) above.

 

6.             **Vesting of Time Vesting Options**.

 

(a)           A portion of the Option granted under this Agreementrepresenting the right to purchase[              ]Shares shall be subject to vesting (the “Time Vesting Options”) in themanner described in this Section 6.

 

(b)           The Time Vesting Options shall fully vest and becomeexercisable with respect to the applicable number of Shares set forth below ifand only if the Termination Date does not occur during the period beginning onthe date hereof and ending on the applicable vesting date determinedbelow.  The Time Vesting Options shallcumulatively vest and become exercisable with respect to 16.66% of the Shares(rounded to the nearest one-thousandth (0.001) of a share of Common Stock) oneach December 31 after the date hereof during the period beginning on thedate hereof and ending on December 31, 20[    ](2).

 

(c)           Upon (i) a Change in Control (as defined below)or (ii) a Sale of the Company pursuant to clause (ii) of the definitionthereof set forth in the Plan, 100% of any portion of the Time Vesting Optionsthat is not vested as of the date of such Change in Control or such Sale of theCompany, as applicable, shall become vested and immediately exercisable and,subject to Sections 5.10 and 6.4 of the Plan, shall remain exercisable for aperiod of 90 days following such Change in Control or such Sale of the Company,as applicable.  For the purposes  hereof, “Change in Control” means any (i) saleor issuance (or series of sales or issuances) of Common Stock or the right toacquire Common Stock by the Company or any holders thereof which results in anyPerson or group of Affiliated Persons (other than the owners of Common Stock orthe right to acquire Common Stock as of the date hereof and Affiliates of suchPersons) owning and/or having the right to acquire more than 50% of the CommonStock on a fully diluted basis at the time of such sale or issuance (or seriesof sales or issuances), other than in connection with a Public Offering or (ii) merger,share exchange, reorganization, recapitalization or consolidation to which theCompany is a party (other than a merger in which the Company is the survivingentity, or a share exchange in which capital stock of the Company is issued,that does not result in more than 49% of the Company’s outstanding capitalstock possessing the voting power (under ordinary circumstances) to elect amajority of the Board being owned of record or beneficially by persons orentities other than the holders of such capital stock immediately prior to suchmerger or share exchange).

 

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(2)   This will refer to the fifthyear after the year during which grants are made (e.g., for grants made in2010, insert “15”).

 

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7.             **Conditionsto Exercise.** The Optionmay not be exercised by Grantee unless the following conditions are met:

 

(a)           The Option has become vested with respect to theShares to be acquired pursuant to such exercise;

 

(b)           Legal counsel for the Company must be satisfied atthe time of exercise that the issuance of shares of Common Stock upon exercisewill be in compliance with the Securities Act and applicable United Statesfederal, state, local and foreign laws; and

 

(c)           Grantee must pay at the time of exercise the fullExercise Price for the Shares being acquired hereunder in the form elected byGrantee, plus any withholding tax (which shall be paid only in cash) requiredin connection with such exercise, in each case, in accordance with the terms ofthe Plan**[; provided, that theWithholding Amount relating to the Options, at the Grantee’s election, shallreduce the number of Shares (based on the Fair Market Value of such Shares)that are issuable upon exercise of such portion of the Option; provided,however, that the number of Shares used to satisfy the WithholdingAmount shall not exceed the minimum withholding tax obligation under applicablefederal and state law in effect at such time]**.

 

8.             **Transferability.**  The Option (including the right to receivethe Shares) may not be Transferred or assigned by Grantee, other than by willor the laws of descent and distribution and, during the lifetime of Grantee,the Option may be exercised only by Grantee (or, if Grantee is incapacitated,by Grantee’s legal guardian or legal representative).  In the event of the death of Grantee, theOption, to the extent it has not vested on the date of death, shall terminate;and the exercise of the Option, to the extent it has vested as of the date ofdeath, may be made only by the executor or administrator of Grantee’s estate orthe Person or Persons to whom Grantee’s rights under the Option pass by will orthe laws of descent and distribution.  IfGrantee or anyone claiming under or through Grantee attempts to violate this Section 8,such attempted violation shall be null and void and without effect, and theCompany’s obligation hereunder shall terminate. Any Issued Stock received upon exercise of the Option is subject to the **[repurchase right]**, restrictions onTransfer and other rights and obligations set forth in the Plan**[; provided, that, notwithstanding anythingcontained in the Plan, any Shares received by Grantee upon exercise of theOption shall not be subject to the repurchase rights set forth in Section 5.7of the Plan]**.

 

9.             **Administration.**  Any action taken or decision made by theCompany, the Board, or the Committee or its delegates arising out of or inconnection with the construction, administration, interpretation or effect ofthe Plan or this Agreement shall lie within its sole and absolute discretion,as the case may be, and shall be final, conclusive and binding on Grantee andall persons claiming under or through Grantee, except as expressly provided inGrantee’s employment agreement, if any, with the Company or any of itsSubsidiaries.  By accepting this grant orother benefit under the Plan, Grantee and each person claiming under or throughGrantee shall be conclusively deemed to have indicated acceptance andratification of, and consent to, any action taken under the Plan by theCompany, the Board or the Committee or its delegates.

 

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10.           **No Rights as Stockholder.**  Unless and until a certificate orcertificates representing such shares of Common Stock shall have been issued toGrantee (or any person acting under Section 7 above), Grantee shallnot be or have any of the rights or privileges of a stockholder of the Companywith respect to shares of Common Stock acquirable upon exercise of the Option.

 

11.           **Investment Representation.**  Grantee hereby acknowledges that the sharesof Common Stock which Grantee may acquire by exercising the Option shall not beTransferred in the absence of an effective registration statement for theshares of Common Stock under the Securities Act and applicable state securitieslaws or an applicable exemption from the registration requirements of theSecurities Act and any applicable state securities laws.  Grantee also agrees that the shares of CommonStock which Grantee may acquire by exercising the Option will not be sold orotherwise disposed of in any manner which would constitute a violation of anyapplicable federal or state securities laws.

 

12.           **Rights of Grantee.**  Neither this Agreement nor the Plan createsany employment rights in Grantee and neither the Company nor any of itsSubsidiaries shall have any liability arising out of the Plan or this Agreementfor terminating Grantee’s employment or reducing Grantee’s responsibilities.

 

13.           **Notices.**  Any notice hereunder to the Company shall beaddressed to the Company’s principal executive office, Attention: GeneralCounsel, and any notice hereunder to Grantee shall be addressed to Grantee atGrantee’s last address on the records of the Company, subject to the right ofeither party to designate at any time hereafter in writing some otheraddress.  Any notice shall be deemed tohave been duly given when delivered personally, one day following dispatch ifsent by reputable overnight courier, fees prepaid, or three days followingmailing if sent by registered mail, return receipt requested, postage prepaidand addressed as set forth above.

 

14.           **Binding Effect.**  This Agreement shall be binding upon andinure to the benefit of any successors and assigns to the Company and allpersons lawfully claiming under Grantee.

 

15.           **[Non-Competition and Non-Solicitation.**

 

(a)           In consideration of the Company’s grant of theOption hereunder, the Grantee acknowledges that, during the course of theGrantee’s employment with the Company and its Subsidiaries (the “Term”),the Grantee shall become familiar with the trade secrets of the Company and itsSubsidiaries and other Confidential Information (as defined below) concerningthe Company and its Subsidiaries (and their respective predecessor companies)and that the Grantee’s services have been and shall be of special, unique andextraordinary value to the Company and its Subsidiaries.  Accordingly, the Grantee agrees that duringthe Term and thereafter until the end of the first anniversary of the Grantee’sTermination Date, the Grantee shall not directly or indirectly own any interestin, manage, control, participate in, consult with, render services for, or inany manner engage in any Competing Business (as defined below) in the UnitedStates; provided, that the foregoing shall not prohibit Grantee fromowning stock as a 

 

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passiveinvestor in any publicly traded corporation so long as Grantee’s ownership insuch corporation, directly or indirectly, is less than 2% of the voting stockof such corporation.  For purposes ofthis paragraph, “Competing Business” means any business activityinvolving the outsourcing or rental of movable medical equipment and relatedservices to the health care industry.

 

(b)           During the Term and thereafter until the end of thesecond anniversary of the Date of Termination, the Grantee shall not directlyor indirectly through another Person (i) induce or attempt to induce anyemployee of the Company or any Subsidiary to leave the employ of the Company orsuch Subsidiary, or in any way interfere with the relationship between theCompany or any Subsidiary and any employee thereof, (ii) hire any personwho was an employee of the Company or any Subsidiary at any time within the one(1) year period before the Grantee’s Termination Date, or (iii) induceor attempt to induce any customer, supplier, licensee, licensor, franchisee orother business relation of the Company or any Subsidiary to cease doingbusiness with the Company or such Subsidiary, or in any way interfere with therelationship between any such customer, supplier, licensee or business relationand the Company or any Subsidiary, except with the prior written consent of theBoard, which consent will be given at the sole discretion of the Board.]

 

16.           **[Non-Disclosure**. The Granteeagrees that during and at all times after the Term, the Grantee will keepsecret all confidential matters and materials of the Company (including itsSubsidiaries and Affiliates), including, without limitation, know-how, tradesecrets, real estate plans and practices, individual office results, customerlists, pricing policies, operational methods, any information relating to theCompany (including any of its Subsidiaries and Affiliates) products, processes,customers and services and other business and financial affairs of the Company(collectively, “Confidential Information”), to which the Grantee had ormay have access and will not disclose such Confidential Information to anyPerson other than (i) the Company, its respective authorized employees andsuch other Persons to whom the Grantee has been instructed to make disclosureby the Board, (ii) as appropriate (as determined by the Grantee in goodfaith) to perform the Grantee’s duties to the Company or its Subsidiaries, or (iii) incompliance with legal process or regulatory requirements.  “Confidential Information” will not includeany information which is in the public domain during or after the Term to theextent that such information is not in the public domain as a consequence ofdisclosure by the Grantee in violation of this Option Agreement.]

 

17.           **[Intellectual Property, Inventionsand Patents.**  The Granteeacknowledges that all discoveries, concepts, ideas, inventions, innovations,improvements, developments, methods, designs, analyses, drawings, reports,patent applications, copyrightable work and mask work (whether or not includingany Confidential Information) and all registrations or applications relatedthereto, all other proprietary information and all similar or relatedinformation (whether or not patentable) which relate to the actual oranticipated business, research and development or existing or future productsor services of the Company or its Subsidiaries and which are conceived,developed or made by the Grantee (whether individually or jointly with others)while employed by the Company or its Subsidiaries (or their respectivepredecessors) (“Work Product”), belong to the Company or itsSubsidiaries.  The Grantee shall promptlydisclose such Work Product to the Board and, at the Company’s expense, performall 

 

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actionsreasonably requested by the Board (whether during or after the Term) toestablish and confirm such ownership (including, without limitation,assignments, consents, powers of attorney and other instruments).]

 

18.           **[Modification**.  The Grantee agrees and acknowledges that theduration and scope of the covenants described in Section 15, 16or 17 are fair, reasonable and necessary in order to protect thegoodwill and other legitimate interests of the Company and its Subsidiaries,that adequate consideration has been received by the Grantee for suchobligations, and that these obligations do not prevent the Grantee from earninga livelihood.  If, however, for anyreason any court of competent jurisdiction determines that any restrictioncontained in Section 15, 16 or 17 are not reasonable,that consideration is inadequate, such restriction will be interpreted,modified or rewritten to include as much of the duration, scope and geographicarea identified in Section 15, 16 or 17 as willrender such restrictions valid and enforceable.]

 

19.           **[Remedies.** The Granteeacknowledges that the Company will suffer irreparable harm as a result of abreach of this Option Agreement by the Grantee for which an adequate monetaryremedy does not exist and a remedy at law may prove to be inadequate.  Accordingly, in the event of any actual orthreatened breach by the Grantee of any provision of this Option Agreement, theCompany will, in addition to any other remedies permitted by law, be entitledto obtain remedies in equity, including without limitation specificperformance, injunctive relief, a temporary restraining order and/or apermanent injunction in any court of competent jurisdiction, to prevent orotherwise restrain any such breach without the necessity of proving damages,posting a bond or other security.  Suchrelief will be in addition to and not in substitution of any other remediesavailable to the Company.  The existenceof any claim or cause of action by the Grantee against the Company or any ofits Subsidiaries, whether predicated on this Option Agreement or otherwise,will not constitute a defense to the enforcement by the Company of this OptionAgreement.  The Grantee agrees not todefend on the basis that there is an adequate remedy at law.]

 

**20.**          **GoverningLaw.****The validity, construction,interpretation, administration and effect of the Plan, and of its rules andregulations, and rights relating to the Plan and to this Agreement, shall begoverned by the substantive laws, but not the choice of law rules, of the Stateof Delaware.  The parties hereto herebyirrevocably and unconditionally submit to the exclusive jurisdiction of anyFederal court sitting in the State of Minnesota over any suit, action orproceeding arising out of or relating to this Agreement.  The parties hereby agree that service of anyprocess, summons, notice or document by U.S. registered mail addressed to anysuch party shall be effective service of process for any action, suit orproceeding brought against a party in any such court.  The parties hereto hereby irrevocably andunconditionally waive any objection to the laying of venue of any such suit,action or proceeding brought in any such court and any claim that any suchsuit, action or proceeding brought in any such court has been brought in aninconvenient forum.  The parties heretoagree that a final judgment in any such suit, action or proceeding brought inany such court shall be conclusive and binding upon any party and may beenforced in any other courts to whose jurisdiction any party is or may besubject, by suit upon such judgment.**

 

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21.           **WAIVER OF RIGHT TO JURY TRIAL**. EACH PARTYHERETO HEREBY WAIVES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURYIN ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, ORARISING OUT OF THIS AGREEMENT OR THE PLAN, OR THE ENFORCEMENT HEREOF ORTHEREOF.  THE GRANTEE AGREES THAT THIS SECTION 21IS A SPECIFIC AND MATERIAL ASPECT OF THIS AGREEMENT AND ACKNOWLEDGES THAT THECOMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT IF THIS SECTION 21WERE NOT PART OF THIS AGREEMENT.

 

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INWITNESS WHEREOF, the Company and Grantee have executed this Option Agreement asof the date first above written.

 
|   | **UHS HOLDCO, INC.**                                                                                                                                                                                                                                                                                          |
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|   | **GRANTEE:**                                                                                                                                                                                                                                                                                                       |
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|   | **[                                                  ]** |

 

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**ANNEX I**

 
| **Fiscal Year**              | ** ** | **Base Target EBITDA**                                                                            | ** ** | **Capital Expenditures Target**                                                                    |
|------------------------------|------------|---------------------------------------------------------------------------------------------------|------------|----------------------------------------------------------------------------------------------------|
| ** **                   | ** ** | ** **                                                                                        | ** ** | ** **                                                                                         |
| 20[    ] |       | [N/A]  [$              (3)] |       | [[N/A]  [$              ](3) |
|                         |       |                                                                                              |       |                                                                                               |
| 20[    ] |       | [N/A]  [$              (4)] |       | [N/A]  [$              (4)]  |
|                         |       |                                                                                              |       |                                                                                               |
| 20[    ] |       | [N/A]  [$              (4)] |       | [N/A]  [$              (4)]  |
|                         |       |                                                                                              |       |                                                                                               |
| 20[    ] |       | [N/A]  [$              (4)] |       | [N/A]  [$              (4)]  |
|                         |       |                                                                                              |       |                                                                                               |
| 20[    ] |       | [N/A]  [$              (4)] |       | [N/A]  [$              (4)]  |
|                         |       |                                                                                              |       |                                                                                               |
| 20[    ] |       | [N/A]  [$              (4)] |       | [N/A]  [$              (4)]  |

 

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(3)          Note: Target to be determined by the Board orCommittee on or prior to the date of grant.

 

(4)          Note: Target may be determined by the Board orCommittee after the date of grant.  Insuch case, the applicable target will be so determined by September 30 ofthe fiscal year preceding the fiscal year for which the target applies.  Each such determination will be made by theBoard or Committee in its sole discretion, which determination will, subject tothe provisions of Sections 5(c) and 5(e)(ii) of this Agreement, befinal, conclusive and binding on the Grantee and the Company.  The Company will notify the Grantee inwriting of the Board or Committee’s determination promptly following suchdetermination.

 

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