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.
(I)
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.
(II)
NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, IF
THE EMPLOYEE HAS A WRITTEN EMPLOYMENT AGREEMENT WITH THE COMPANY PROVIDING FOR
SEVERANCE PAYMENTS IN THE EVENT OF A TERMINATION BY THE COMPANY WITHOUT CAUSE
AND/OR TERMINATION BY THE EMPLOYEE FOR GOOD REASON, IN THE EVENT THE EMPLOYEE'S
EMPLOYMENT TERMINATES AND SEVERANCE BENEFITS ARE PAYABLE UNDER THE EMPLOYMENT
AGREEMENT, THE EMPLOYEE'S TIME VESTED RSUS WILL
2
VEST, AND SHARES SUBJECT TO SUCH VESTED TIME VESTED RSUS WILL BE TRANSFERRED TO
THE EMPLOYEE, AT THE TIME OF SUCH TERMINATION OF EMPLOYMENT TO THE EXTENT SUCH
TIME VESTED RSUS WOULD HAVE VESTED IF THE EMPLOYEE'S EMPLOYMENT HAD CONTINUED
THROUGH THE END OF THE SEVERANCE PERIOD PROVIDED FOR IN HIS OR HER