EXCESS DIVIDED BY THE NUMBER OF SHARES OUTSTANDING AT THE END OF
THE PERFORMANCE PERIOD.
FOR PURPOSES OF THIS CALCULATION, EBITDA, NET CAPITAL
EXPENDITURES, INTEREST PAYMENTS AND NUMBER OF SHARES SHALL EACH BE DETERMINED ON
A PRO FORMA BASIS TAKING INTO ACCOUNT ACQUISITIONS AND DISPOSITIONS, AND CAPITAL
EXPENDITURES AND ACQUISITIONS WILL BE AS DEFINED IN THE CREDIT AGREEMENT.
NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT THERE IS A MATERIAL CHANGE IN
THE COMPANY'S BUSINESS STRATEGY AS IT RELATES TO CAPITAL EXPENDITURES OR DEBT
STRUCTURE, THE COMMITTEE SHALL HAVE THE AUTHORITY TO MODIFY THE APPLICABLE
PERFORMANCE CONDITIONS, IN GOOD FAITH AND IN CONSULTATION WITH MANAGEMENT, IN
ORDER TO REFLECT SUCH CHANGE.
THE DETERMINATION OF COMPANY'S EARNED
DISTRIBUTABLE CASH PER SHARE FOR EACH PERFORMANCE PERIOD WILL BE MADE BY THE
COMMITTEE IN GOOD FAITH, AND, ABSENT MANIFEST ERROR, SUCH DETERMINATION SHALL BE
BINDING ON THE EMPLOYEE.
(D)
DISTRIBUTION OF SHARES.
THE SHARES SUBJECT TO
A VESTED RSU SHALL BE TRANSFERRED TO THE EMPLOYEE ON THE FIFTH (5TH) BUSINESS
DAY FOLLOWING THE APPLICABLE VESTING DATE OF THE RSU.
(E)
DIVIDEND EQUIVALENTS.
THE EMPLOYEE SHALL NOT
BE ENTITLED TO RECEIVE DIVIDENDS ON, OR VOTE, ANY SHARES IN RESPECT OF AN RSU
PRIOR TO THE TRANSFER OF THE SHARES TO THE EMPLOYEE AFTER A VESTING DATE AS SET
FORTH IN SECTION 2(D) ABOVE.
NOTWITHSTANDING THE FOREGOING, IF THE AMOUNT OF
EARNED DISTRIBUTABLE CASH PER SHARE FOR A PERFORMANCE PERIOD EXCEEDS THE
TARGETED AMOUNT (AS SET FORTH IN APPENDIX A HERETO) FOR A SUBSEQUENT PERFORMANCE
PERIOD, DIVIDEND EQUIVALENT PAYMENTS WILL BE MADE WITH RESPECT TO THE PORTION OF
THE RSU SUBJECT TO VESTING IMMEDIATELY FOLLOWING, AND AS A RESULT OF THE
PERFORMANCE IN, SUCH SUBSEQUENT PERFORMANCE PERIOD (THE "DIVIDEND SHARES").
THE
DIVIDEND EQUIVALENT PAYMENTS WILL BE EQUAL TO THE AMOUNT OF THE DIVIDENDS
ACTUALLY PAID DURING SUCH SUBSEQUENT PERFORMANCE PERIOD ON A NUMBER OF SHARES
EQUAL TO THE DIVIDEND SHARES, AND SUCH DIVIDEND EQUIVALENT PAYMENTS WILL BE MADE
AT THE TIME SUCH DIVIDENDS ARE PAID ON THE SHARES.
(F)
ACCELERATED VESTING.
NOTWITHSTANDING ANY
PROVISION OF THIS AGREEMENT TO THE CONTRARY, THE TIME VESTED RSUS AND THE
PERFORMANCE VESTED RSUS WILL IMMEDIATELY VEST IN FULL, AND SHARES SUBJECT TO THE
RSUS WILL BE TRANSFERRED TO THE EMPLOYEE, ON THE DATE OF A CHANGE IN CONTROL.
(G)
TERMINATION OF SERVICE; FORFEITURE OF UNVESTED
SHARES.
IN THE EVENT OF TERMINATION OF SERVICE OF THE EMPLOYEE PRIOR TO THE
DATE THE RSUS OTHERWISE BECOME VESTED, THE UNVESTED PORTION OF THE RSUS SHALL
IMMEDIATELY BE FORFEITED BY THE EMPLOYEE AND BECOME THE PROPERTY OF THE COMPANY.
(H)
NO TRANSFER.
THE EMPLOYEE SHALL HAVE NO RIGHT
TO TRANSFER, PLEDGE, HYPOTHECATE OR OTHERWISE ENCUMBER THE RSUS.
2
(I)
NO RIGHT TO CONTINUED EMPLOYMENT.
THIS
AWARD OF RSUS SHALL NOT CONFER UPON THE EMPLOYEE ANY RIGHT WITH RESPECT TO
CONTINUANCE OF EMPLOYMENT BY THE COMPANY NOR SHALL IT INTERFERE WITH THE RIGHT
OF THE COMPANY TO TERMINATE THE EMPLOYEE'S EMPLOYMENT AT ANY TIME.
(J)
ANTIDILUTION ADJUSTMENTS.
IN THE EVENT
THAT THE COMMITTEE SHALL