PROVIDER SELECTED BY THE COMPENSATION COMMITTEE MAY BE GRANTED ONE OR MORE
PERFORMANCE-BASED AWARDS IN THE FORM OF A CASH BONUS PAYABLE UPON THE ATTAINMENT
OF PERFORMANCE GOALS THAT ARE ESTABLISHED BY THE COMPENSATION COMMITTEE FOR A
PERFORMANCE PERIOD PRIOR TO THE DETERMINATION DATE.
PERFORMANCE-BASED AWARDS IN
THE FORM OF CASH BONUSES MAY NOT EXCEED MORE THAN $5,000,000 IN ANY FISCAL
YEAR.
PERFORMANCE BONUS AWARDS ESTABLISHED FOR ANY PARTICIPANT WHO WOULD BE
CONSIDERED A "COVERED EMPLOYEE" WITHIN THE MEANING OF CODE
SECTION 162(M) (HEREINAFTER A "COVERED EMPLOYEE") WILL BE BASED UPON PERFORMANCE
GOALS ESTABLISHED IN ACCORDANCE WITH SECTION 13.
THE PROVISIONS CONTAINED IN
THIS PLAN PERMITTING THE COMPANY TO GRANT PERFORMANCE-BASED AWARDS IN THE FORM
OF CASH BONUSES SHALL NOT BE THE EXCLUSIVE MEANS FOR THE PAYMENT OF BONUSES OR
OTHER INCENTIVE COMPENSATION TO PARTICIPANTS, INCLUDING COVERED EMPLOYEES.
13.
TERMS AND CONDITIONS OF ANY
PERFORMANCE-BASED AWARD.
(A)
PURPOSE.
THE PURPOSE OF THIS SECTION 13 IS TO PROVIDE THE
COMPENSATION COMMITTEE OF THE BOARD (THE "COMPENSATION COMMITTEE") THE ABILITY
TO QUALIFY AWARDS (OTHER THAN OPTIONS AND SARS) THAT ARE GRANTED PURSUANT TO THE
PLAN AS QUALIFIED PERFORMANCE-BASED COMPENSATION UNDER CODE SECTION 162(M).
IF
THE COMPENSATION COMMITTEE, IN ITS DISCRETION, DECIDES TO GRANT A
PERFORMANCE-BASED AWARD SUBJECT TO PERFORMANCE GOALS TO A COVERED EMPLOYEE, THE
PROVISIONS OF THIS SECTION 13 WILL CONTROL OVER ANY CONTRARY PROVISION IN THE
PLAN; PROVIDED, HOWEVER, THAT THE COMPENSATION COMMITTEE MAY IN ITS DISCRETION
GRANT AWARDS THAT ARE NOT INTENDED TO QUALIFY AS "PERFORMANCE-BASED
COMPENSATION" UNDER CODE SECTION 162(M) TO SUCH PARTICIPANTS THAT ARE BASED ON
PERFORMANCE GOALS OR OTHER SPECIFIC CRITERIA OR GOALS BUT THAT DO NOT SATISFY
THE REQUIREMENTS OF THIS SECTION 13.
(B)
APPLICABILITY.
THIS SECTION 13 WILL APPLY TO THOSE COVERED
EMPLOYEES WHO ARE SELECTED BY THE COMPENSATION COMMITTEE TO RECEIVE ANY AWARD
SUBJECT TO PERFORMANCE GOALS.
THE DESIGNATION OF A COVERED EMPLOYEE AS BEING
SUBJECT TO CODE SECTION 162(M) WILL NOT IN ANY MANNER ENTITLE THE COVERED
EMPLOYEE TO RECEIVE AN AWARD UNDER THE PLAN.
MOREOVER, DESIGNATION OF A COVERED
EMPLOYEE SUBJECT TO CODE SECTION 162(M) FOR A PARTICULAR PERFORMANCE PERIOD WILL
NOT REQUIRE DESIGNATION OF SUCH COVERED EMPLOYEE IN ANY SUBSEQUENT PERFORMANCE
PERIOD AND DESIGNATION OF ONE COVERED EMPLOYEE WILL NOT REQUIRE DESIGNATION OF
ANY OTHER COVERED EMPLOYEE IN SUCH PERIOD OR IN ANY OTHER PERIOD.
(C)
PROCEDURES WITH RESPECT TO PERFORMANCE BASED AWARDS.
TO THE
EXTENT NECESSARY TO COMPLY WITH THE PERFORMANCE-BASED COMPENSATION REQUIREMENTS
OF CODE SECTION 162(M), WITH RESPECT TO ANY AWARD GRANTED SUBJECT TO PERFORMANCE
GOALS, WITHIN THE FIRST TWENTY-FIVE PERCENT (25%) OF THE PERFORMANCE PERIOD, BUT
IN NO EVENT MORE THAN NINETY (90) DAYS FOLLOWING THE COMMENCEMENT OF ANY
PERFORMANCE PERIOD (OR SUCH OTHER TIME AS MAY BE REQUIRED OR
17
PERMITTED BY CODE SECTION 162(M)), THE COMPENSATION COMMITTEE WILL, IN WRITING,
(A) DESIGNATE ONE OR MORE PARTICIPANTS WHO ARE COVERED EMPLOYEES, (B) SELECT THE
PERFORMANCE GOALS APPLICABLE TO THE PERFORMANCE PERIOD, (C) ESTABLISH THE
PERFORMANCE GOALS, AND AMOUNTS OR METHODS OF COMPUTATION OF SUCH AWARDS,