ON STOCKHOLDERS'
EQUITY; RETURN ON ASSETS; ATTAINMENT OF STRATEGIC AND OPERATIONAL INITIATIVES;
APPRECIATION IN AND/OR MAINTENANCE OF THE PRICE OF THE SHARES OR ANY OTHER
PUBLICLY-TRADED SECURITIES OF THE COMPANY; MARKET SHARE; GROSS PROFITS; EARNINGS
BEFORE TAXES; EARNINGS BEFORE INTEREST AND TAXES; EARNINGS BEFORE INTEREST,
TAXES, DEPRECIATION AND AMORTIZATION ("EBITDA"); AN ADJUSTED FORMULA OF EBITDA
DETERMINED BY THE COMMITTEE; ECONOMIC VALUE-ADDED
12
MODELS; COMPARISONS WITH VARIOUS STOCK MARKET INDICES; REDUCTIONS IN COSTS,
AND/OR RETURN ON INVESTED CAPITAL OF THE COMPANY OR ANY AFFILIATE, DIVISION OR
BUSINESS UNIT OF THE COMPANY FOR OR WITHIN WHICH THE PARTICIPANT IS PRIMARILY
EMPLOYED.
SUCH PERFORMANCE GOALS ALSO MAY BE BASED SOLELY BY REFERENCE TO THE
COMPANY'S PERFORMANCE OR THE PERFORMANCE OF AN AFFILIATE, DIVISION OR BUSINESS
UNIT OF THE COMPANY, OR BASED UPON THE RELATIVE PERFORMANCE OF OTHER COMPANIES
OR UPON COMPARISONS OF ANY OF THE INDICATORS OF PERFORMANCE RELATIVE TO OTHER
COMPANIES.
UNLESS THE COMMITTEE SPECIFIES OTHERWISE WHEN IT SETS PERFORMANCE
GOALS FOR AN AWARD, OBJECTIVE ADJUSTMENTS SHALL BE MADE TO ANY OF THE FOREGOING
MEASURES FOR ITEMS THAT WILL NOT PROPERLY REFLECT THE COMPANY'S FINANCIAL
PERFORMANCE FOR THESE PURPOSES, SUCH AS THE WRITE-OFF OF DEBT ISSUANCE COSTS,
PRE-OPENING AND DEVELOPMENT COSTS, GAIN OR LOSS FROM ASSET DISPOSITIONS, ASSET
OR OTHER IMPAIRMENT CHARGES, LITIGATION SETTLEMENT COSTS, AND OTHER NON-ROUTINE
ITEMS THAT
MAY OCCUR DURING THE PERFORMANCE PERIOD.
ALSO, UNLESS THE
COMMITTEE DETERMINES OTHERWISE IN SETTING THE PERFORMANCE GOALS FOR AN AWARD,
SUCH PERFORMANCE GOALS SHALL BE APPLIED BY EXCLUDING THE IMPACT OF
(A) RESTRUCTURINGS, DISCONTINUED OPERATIONS AND CHARGES FOR EXTRAORDINARY ITEMS,
(B) AN EVENT EITHER NOT DIRECTLY RELATED TO THE OPERATIONS OF THE COMPANY OR NOT
WITHIN THE REASONABLE CONTROL OF THE COMPANY'S MANAGEMENT, OR (C) A CHANGE IN
ACCOUNTING STANDARDS REQUIRED BY GENERALLY ACCEPTED ACCOUNTING PRINCIPLES.
SUCH
PERFORMANCE GOALS SHALL BE SET BY THE COMMITTEE WITHIN THE TIME PERIOD
PRESCRIBED BY, AND SHALL OTHERWISE COMPLY WITH THE REQUIREMENTS OF,
SECTION 162(M) OF THE CODE, OR ANY SUCCESSOR PROVISION THERETO, AND THE
REGULATIONS THEREUNDER.
10.3
ADJUSTMENTS.
NOTWITHSTANDING ANY PROVISION OF THE PLAN (OTHER THAN
ARTICLE XI), WITH RESPECT TO ANY RESTRICTED STOCK, PERFORMANCE AWARD OR OTHER
STOCK UNIT AWARD THAT IS SUBJECT TO THIS ARTICLE X, THE COMMITTEE MAY ADJUST
DOWNWARD, BUT NOT UPWARD, THE AMOUNT PAYABLE PURSUANT TO SUCH AWARD, AND THE
COMMITTEE MAY NOT WAIVE THE ACHIEVEMENT OF THE APPLICABLE PERFORMANCE GOALS,
EXCEPT IN THE CASE OF THE DEATH OR DISABILITY OF THE PARTICIPANT OR THE
OCCURRENCE OF A CHANGE OF CONTROL.
10.4
DETERMINATION OF PERFORMANCE.
PRIOR TO THE VESTING, PAYMENT,
SETTLEMENT OR LAPSING OF ANY RESTRICTIONS WITH RESPECT TO ANY RESTRICTED STOCK,
PERFORMANCE AWARD OR OTHER STOCK UNIT AWARD THAT IS SUBJECT TO THIS ARTICLE X,
THE COMMITTEE SHALL CERTIFY IN WRITING THAT THE APPLICABLE PERFORMANCE GOALS
HAVE BEEN ACHIEVED TO THE EXTENT NECESSARY FOR SUCH AWARD TO QUALIFY AS
"PERFORMANCE BASED COMPENSATION" WITHIN THE MEANING OF SECTION 162(M)(4)(C) OF
THE CODE.
10.5
RESTRICTIONS.
THE COMMITTEE SHALL HAVE THE POWER TO IMPOSE SUCH
OTHER RESTRICTIONS ON AWARDS SUBJECT TO