THE PERFORMANCE AWARD SHALL
BE PAYABLE UPON A CHANGE IN CONTROL (AS DEFINED IN THAT CERTAIN INDENTURE (AS
AMENDED, AMENDED AND RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO
TIME), BY AND AMONG THE COMPANY, THE GUARANTORS PARTY THERETO AND THE BANK OF
NEW YORK, AS TRUSTEE, PURSUANT TO WHICH THE COMPANY ISSUED ITS 9-3/4% SENIOR
SECURED NOTES DUE DECEMBER 1, 2010) AND SHALL BE PAID TO PARTICIPANT WITHIN FIVE
(5) BUSINESS DAYS FOLLOWING SUCH CHANGE IN CONTROL.
QUALIFIED PERFORMANCE BASED COMPENSATION.
THE PERFORMANCE AWARD, IF PAID, IS
INTENDED TO CONSTITUTE QUALIFIED "PERFORMANCE BASED COMPENSATION" FOR PURPOSES
OF SECTION 162(M) OF THE CODE AND THIS AGREEMENT SHALL BE INTERPRETED IN
ACCORDANCE WITH SUCH INTENT.
THE COMMITTEE SHALL HAVE THE AUTHORITY TO MAKE ANY
AMENDMENT TO THIS AGREEMENT, IF DEEMED NECESSARY, SUCH THAT THE AWARD SATISFIES
THE REQUIREMENTS UNDER SECTION 162(M) OF THE CODE.
TERMINATION OF EMPLOYMENT DURING PERFORMANCE PERIOD.
IF THE PARTICIPANT'S
EMPLOYMENT WITH THE COMPANY AND/OR ITS SUBSIDIARIES TERMINATES DURING THE
PERFORMANCE PERIOD FOR ANY REASON, THE AWARD GRANTED UNDER THIS AGREEMENT WILL
BE FORFEITED ON THE DATE OF SUCH TERMINATION OF EMPLOYMENT.
HEIRS AND SUCCESSORS; NON-TRANSFERABILITY.
THIS AGREEMENT SHALL BE BINDING
UPON, AND INURE TO THE BENEFIT OF, THE COMPANY AND ITS SUCCESSORS AND ASSIGNS,
AND UPON ANY PERSON ACQUIRING, WHETHER BY MERGER, CONSOLIDATION, PURCHASE OF
ASSETS OR OTHERWISE, ALL OR SUBSTANTIALLY ALL OF THE COMPANY'S ASSETS AND
BUSINESS.
NO AWARD SHALL BE ASSIGNABLE OR TRANSFERABLE BY THE PARTICIPANT,
OTHERWISE THAN BY WILL OR THE LAWS OF DESCENT AND DISTRIBUTION.
15
ADMINISTRATION.
THE AUTHORITY TO MANAGE AND CONTROL THE OPERATION AND
ADMINISTRATION OF THIS AGREEMENT SHALL BE VESTED IN THE COMMITTEE, AND THE
COMMITTEE SHALL HAVE ALL POWERS WITH RESPECT TO THIS AGREEMENT AS IT HAS WITH
RESPECT TO THE PLAN. ANY INTERPRETATION OF THE AGREEMENT BY THE COMMITTEE AND
ANY DECISION MADE BY IT WITH RESPECT TO THE AGREEMENT ARE FINAL AND BINDING.
PLAN GOVERNS.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, THE
TERMS OF THIS AGREEMENT SHALL BE SUBJECT TO THE TERMS OF THE PLAN.
IN THE EVENT
OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND THE PLAN, THE PLAN SHALL GOVERN AND CONTROL.
AMENDMENT.
THIS AGREEMENT MAY BE AMENDED BY WRITTEN AGREEMENT OF THE
PARTICIPANT AND THE COMPANY.
OFFSET.
NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN OR THE PLAN, THE
COMPANY MAY OFF-SET ON A DOLLAR FOR DOLLAR BASIS ANY AMOUNTS PAYABLE OR
OTHERWISE DUE HEREUNDER TO THE PARTICIPANT AGAINST AMOUNTS THAT THE COMPANY
DETERMINES IN GOOD FAITH THAT SUCH PARTICIPANT OWES THE COMPANY.
ALL
DETERMINATIONS UNDER THIS PARAGRAPH 9 SHALL BE MADE BY THE COMMITTEE IN ITS SOLE
DISCRETION AND ANY SUCH DETERMINATION SHALL BE FINAL AND BINDING ON ALL PARTIES.
SEVERABILITY.
IF ANY PORTION OF THIS AGREEMENT IS DECLARED INVALID, THE
REMAINDER OF THE AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES.