BY THE BOARD.
(J)
"FAIR MARKET VALUE" HAS THE MEANING SPECIFIED IN THE PLAN, EXCEPT
AS EXPRESSLY SET FORTH HEREIN.
(K)
"FIRST PERFORMANCE-BASED TRANCHE" HAS THE MEANING SPECIFIED IN
SECTION 2 OF THIS AGREEMENT.
(L)
"FREE CASH FLOW" SHALL MEAN, FOR ANY APPLICABLE PERIOD, EBITDA
(AS DEFINED ABOVE) FOR SUCH PERIOD MINUS CAPITAL EXPENDITURES DURING SUCH PERIOD
AND INCREASED OR DECREASED, AS THE CASE MAY BE, BY THE CHANGE IN OPERATING
WORKING CAPITAL DURING SUCH PERIOD.
(M)
"GOOD REASON" SHALL MEAN A MATERIAL REDUCTION IN THE OPTIONEE'S
COMPENSATION BELOW THE AMOUNT OF COMPENSATION IN EFFECT ON THE DATE OF THIS
AGREEMENT WHICH IS NOT CURED WITHIN THIRTY (30) DAYS FOLLOWING THE COMPANY'S OR
ITS SUBSIDIARY'S, AS APPLICABLE, RECEIPT OF WRITTEN NOTICE FROM SUCH OPTIONEE
DESCRIBING THE EVENT CONSTITUTING GOOD REASON.
(N)
"OPERATING WORKING CAPITAL" AS OF ANY DATE SHALL MEAN THE
DIFFERENCE BETWEEN CURRENT ASSETS (EXCLUDING CASH AND INVESTMENTS, INTEREST AND
TAX ACCOUNTS) AND CURRENT LIABILITIES (EXCLUDING DEBT, INTEREST AND TAX
ACCOUNTS).
ACCRUED LIABILITIES RELATED TO RESTRUCTURING CHARGES ADDED BACK FOR
THE PURPOSES OF COMPUTING EBITDA ARE ALSO EXCLUDED FROM CURRENT LIABILITIES TO
COMPUTE OPERATING WORKING CAPITAL.
(O)
"OPTION" HAS THE MEANING SPECIFIED IN SECTION 2 OF THIS AGREEMENT.
(P)
"OPTION PRICE" HAS THE MEANING SPECIFIED IN SECTION 2 OF THIS
AGREEMENT.
(Q)
"OPTION SHARES" HAS THE MEANING SPECIFIED IN SECTION 2 OF THIS
AGREEMENT.
(R)
"PERFORMANCE PERIOD" SHALL MEAN THE FIVE-YEAR PERIOD COMMENCING
JANUARY 1, 2008 AND ENDING DECEMBER 31, 2012.
(S)
"SECOND PERFORMANCE-BASED TRANCHE" HAS THE MEANING SPECIFIED IN
SECTION 2 OF THIS AGREEMENT.
(T)
"STOCKHOLDERS AGREEMENT" SHALL MEAN THAT CERTAIN STOCKHOLDERS
AGREEMENT APPLICABLE TO THE OPTIONEE, AS AMENDED FROM TIME TO TIME.
(U)
"TERMINATION FOR CAUSE" SHALL MEAN THE TERMINATION BY THE COMPANY
OF OPTIONEE'S EMPLOYMENT WITH THE COMPANY AS A RESULT OF (I) THE OPTIONEE'S
WILLFUL AND CONTINUED FAILURE TO SUBSTANTIALLY PERFORM OPTIONEE'S DUTIES (OTHER
THAN ANY SUCH FAILURE RESULTING FROM THE OPTIONEE'S DISABILITY OR ANY SUCH
FAILURE SUBSEQUENT TO THE OPTIONEE BEING DELIVERED NOTICE OF THE COMPANY'S
INTENT TO TERMINATE THE OPTIONEE'S EMPLOYMENT WITHOUT CAUSE), (II) CONVICTION
OF, OR A PLEA OF NOLO CONTENDERE TO, (A) A FELONY (OTHER THAN TRAFFIC-RELATED)
UNDER THE LAWS OF THE UNITED STATES OR ANY STATE THEREOF OR ANY SIMILAR CRIMINAL
ACT IN A JURISDICTION OUTSIDE THE UNITED STATES OR (B) A CRIME INVOLVING MORAL
TURPITUDE THAT COULD BE INJURIOUS TO THE COMPANY OR ITS REPUTATION, (III) THE
OPTIONEE'S WILLFUL MALFEASANCE OR WILLFUL MISCONDUCT WHICH IS MATERIALLY AND
DEMONSTRABLY INJURIOUS TO THE COMPANY, OR (IV) ANY ACT OF FRAUD BY THE OPTIONEE
IN THE PERFORMANCE OF THE OPTIONEE'S DUTIES.
2
2.
GRANT OF STOCK OPTION.
SUBJECT TO AND UPON THE TERMS,
CONDITIONS, AND RESTRICTIONS SET FORTH IN THIS AGREEMENT AND IN THE PLAN, THE
COMPANY HAS GRANTED TO OPTIONEE AN OPTION (THE "OPTION") TO PURCHASE [
]
SHARES OF THE COMPANY'S COMMON STOCK (THE "OPTION SHARES") AT A PRICE (THE
"OPTION PRICE") OF $[
] PER SHARE, WHICH IS THE FAIR MARKET VALUE PER
SHARE ON THE EFFECTIVE DATE.