a copy of which is attached hereto as Annex A and is
incorporated herein for all purposes.
C.
The Plan contemplates that an Award may be evidenced by a written
agreement, at the discretion of the Committee, between the Company and the
Participant incorporating the terms and conditions set forth in the Plan,
together with such other terms and conditions not inconsistent with the Plan.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, the terms and conditions
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Definitions.
Capitalized terms used herein but not defined herein shall have
the respective meanings set forth in the Plan.
Performance Award.
(a)
Performance Award Amount.
Subject to the terms of this Agreement
and the Plan, the Participant is hereby awarded a Performance Award in the form
of a bonus equal to the amount of Three Million Two Hundred Eighty-Six Thousand
and Sixty-Five Dollars ($3,286,065.00), payable in cash, shares of Common Stock
(Nonvoting) or a combination thereof at the discretion of the Committee,
according to the terms set forth herein, provided the Participant achieves the
Performance Objective set forth below on or before April 15, 2004. Such
Performance Award shall be reflected in a book account maintained by the Company
during the Performance Period.
14
(B)
PERFORMANCE OBJECTIVE.
THE PERFORMANCE OBJECTIVE SHALL BE THAT
THE PARTICIPANT, EITHER ALONE OR TOGETHER WITH OTHERS, OBTAINS ON BEHALF OF THE
COMPANY, ON OR BEFORE APRIL 15, 2004, THE REFINANCING OF THE COMPANY'S CURRENT
SENIOR DEBT, AS REFLECTED IN THE COMPANY'S AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 30, 2002 (THE "CREDIT AGREEMENT"), SUCH THAT THE MATURITY DATE
WITH RESPECT TO THE COMPANY'S SENIOR DEBT IS EXTENDED FOR AT LEAST TWO (2) YEARS
FROM ITS CURRENT MATURITY.
(C)
PERFORMANCE PERIOD.
THE "PERFORMANCE PERIOD" SHALL BE THE PERIOD
BEGINNING ON THE GRANT DATE AND ENDING ON APRIL 15, 2004 OR SUCH EARLIER DATE
THAT THE PARTICIPANT ACHIEVES THE PERFORMANCE OBJECTIVE SET FORTH IN THIS
AGREEMENT.
(D)
AWARD ACHIEVEMENT DATE.
THE "AWARD ACHIEVEMENT DATE" IS SUCH DATE
THAT THE PARTICIPANT ACHIEVES THE PERFORMANCE OBJECTIVE, AND THE COMMITTEE HAS
CERTIFIED THAT THE PERFORMANCE OBJECTIVE HAS BEEN ACHIEVED IN ACCORDANCE WITH
SECTION 5(C) OF THE PLAN.
(E)
PAYMENT OF AWARD.
IF THE PARTICIPANT ACHIEVES THE PERFORMANCE
OBJECTIVE, THE PARTICIPANT SHALL BE PAID (I) TWO HUNDRED TWENTY-ONE THOUSAND TWO
HUNDRED DOLLARS ($221,200.00) IN CASH FIVE (5) BUSINESS DAYS PRIOR TO THE
MATURITY OF THE PARTICIPANT'S PROMISSORY NOTE DATED JANUARY 1, 2001, ISSUED TO
THE COMPANY AND (II) THE REMAINDER OF THE PERFORMANCE AWARD ("PERFORMANCE AWARD
BALANCE") IN ONE-THIRD INCREMENTS OF ONE MILLION TWENTY-ONE THOUSAND SIX HUNDRED
TWENTY-ONE AND 67/100 DOLLARS ($1,021,621.67) ON EACH OF THE FIRST, SECOND AND
THIRD ANNIVERSARIES OF THE AWARD ACHIEVEMENT DATE.
THE COMPANY SHALL PAY THE
PARTICIPANT'S ANNUAL PORTION OF THE PARTICIPANT'S PERFORMANCE AWARD BALANCE, AS
SOON AS PRACTICABLE AFTER EACH RELEVANT ANNIVERSARY DATE; PROVIDED, THAT,
NOTWITHSTANDING THE FOREGOING, ANY UNPAID PORTION OF