Common use of Catch-Up Clause in Contracts

Catch-Up. Notwithstanding the foregoing vesting provisions set forth in Section 3(b)(i), if Actual EBITDA does not equal or exceed the applicable Target EBITDA with respect to any of fiscal years 2007 through 2009 (a “Missed Year”), then, the EBITDA Performance Option may nevertheless vest and become exercisable with respect to the Shares subject to the EBITDA Performance Option in respect of such Missed Year as follows: (A) If the Actual EBITDA for any of the fiscal years ending December 31, 2007 through December 31, 2009 exceeds the Target EBITDA for such fiscal year (an “Excess Year”) and the Participant remains employed with the Company and its Affiliates through the Performance Vesting Date applicable to such Excess Year (i.e., following the end of such Excess Year), then an amount equal to the excess of the Actual EBITDA for such Excess Year over the Target EBITDA for such Excess Year shall be credited to a notional account for that Excess Year (an “Excess Account”). (B) Any amounts in an Excess Account shall be applied to any previous or subsequent Missed Year(s) (with application to the earliest Missed Year(s) first). If the sum of the Actual EBITDA for any Missed Year, when supplemented with amounts allocated to the Missed Year from the Excess Account equals or exceeds the applicable Performance Target for such Missed Year, then the EBITDA Performance Option shall vest and become exercisable with respect to the Shares subject to the EBITDA Performance Option in respect of such Missed Year and the amounts so allocated to the Missed Year from the Excess Account shall be debited from the Excess Account. Notwithstanding the foregoing, if the fiscal year ending December 31, 2009 is a Missed Year, no more than $20 million may be credited from an Excess Account for such fiscal year.

Catch-Up. Notwithstanding the foregoing vesting provisions set forth in Section 3(b)(i), if Actual EBITDA does not equal or exceed the applicable Target EBITDA with respect to any of fiscal years 2007 2005 through 2009 2008 (a “Missed YearMISSED YEAR”), then, the EBITDA Performance Option may nevertheless vest and become exercisable with respect to the Shares subject to the EBITDA Performance Option in respect of such Missed Year as follows: (A) If the Actual EBITDA for any of the fiscal years ending December 31, 2007 2006 through December 31, 2009 exceeds the Target EBITDA for such fiscal year (an “Excess YearEXCESS YEAR”) and the Participant remains employed with the Company and its Affiliates through the Performance Vesting Date applicable to such Excess Year (i.e., following the end of such Excess Year), then an amount equal to the excess of the Actual EBITDA for such Excess Year over the Target EBITDA for such Excess Year shall be credited to a notional account for that Excess Year (an “Excess Account”). (B) Any amounts in an Excess Account shall be applied to any previous or subsequent Missed Year(s) which occurred within the two fiscal years immediately preceding the Excess Year (with application to the earliest Missed Year(s) first). (Thus, by way of example only, if the fiscal year ending December 31, 2008 was an Excess Year, amounts in the Excess Account for such year would be applied to either or both of the fiscal years ending December 31, 2006 or December 31, 2007, if they were Missed Years, but not to the fiscal year ending December 31, 2005). If the sum of the Actual EBITDA for any Missed Year, when supplemented with amounts allocated to the Missed Year from the Excess Account equals or exceeds the applicable Performance Target for such Missed Year, then the EBITDA Performance Option shall vest and become exercisable with respect to the Shares subject to the EBITDA Performance Option in respect of such Missed Year and the amounts so allocated to the Missed Year from the Excess Account shall be debited from the Excess Account. Notwithstanding the foregoing, if the fiscal year ending December 31, 2009 is a Missed Year, In no more than $20 million may be credited from event will amounts allocated to an Excess Account for such be applied to any subsequent fiscal year.

Catch-Up. Notwithstanding the foregoing foregoing, subject to the Participant’s continued Employment through the applicable vesting provisions set forth in Section 3(b)(i)date described below, if the portion of the Performance Option that is scheduled to vest in respect of a given Fiscal Year does not vest because Actual EBITDA does FCF did not equal or exceed the applicable Target EBITDA with Annual FCF Goal in respect of such Fiscal Year pursuant to the terms of Section 3(b)(i) (any such Fiscal Year in respect of fiscal years 2007 through 2009 (which no vesting occurs, a “Missed Year”), then, then the EBITDA portion of the Performance Option may that was eligible to vest but failed to vest due to the failure to achieve or exceed the Annual FCF Goal in such Missed Year shall, to the extent not then vested or previously forfeited or cancelled, nevertheless vest and become exercisable if, as of the last day of any Fiscal Year (including the Missed Year), the cumulative actual free cash flow for the Company and its consolidated Subsidiaries for such Fiscal Year and all prior Fiscal Years since the first Fiscal Year specified on the Participant’s Master Signature Page, calculated in accordance with respect to Appendix I hereto and as determined in good faith by the Shares subject to Committee following the EBITDA Performance Option completion of the Company’s annual audit (“Actual Cumulative FCF”) equals or exceeds the Cumulative FCF Goal set forth on the Participant Master Signature Page hereto (the “Cumulative FCF Goal”) in respect of such Missed period; provided that the Cumulative FCF Goal for the next Fiscal Year as follows: shall be increased by the sum of (Ax) If 10% per annum of any cumulative shortfall in Actual Cumulative FCF relative to Cumulative FCF Goal (prior to any adjustment for the Actual EBITDA for any of the fiscal years ending December 31, 2007 through December 31, 2009 exceeds the Target EBITDA for such fiscal year (an “Excess Year”10% per annum charge) and the Participant remains employed with the Company and its Affiliates through the Performance Vesting Date applicable to such Excess Year (i.e., following at the end of such Excess Year), then an amount equal to each Fiscal Year and (y) any prior shortfall charge (it being understood that any excess Actual Cumulative FCF at the excess end of the Actual EBITDA for such Excess Year over the Target EBITDA for such Excess any Fiscal Year shall be credited used to a notional account for that Excess Year (an “Excess Account”reduce such 10% per annum charge, if applicable). (B) Any amounts in an Excess Account shall be applied to any previous or subsequent Missed Year(s) (with application to the earliest Missed Year(s) first). If the sum of the Actual EBITDA for any Missed Year, when supplemented with amounts allocated to the Missed Year from the Excess Account equals or exceeds the applicable Performance Target for such Missed Year, then the EBITDA Performance Option shall vest and become exercisable with respect to the Shares subject to the EBITDA Performance Option in respect of such Missed Year and the amounts so allocated to the Missed Year from the Excess Account shall be debited from the Excess Account. Notwithstanding the foregoing, if the fiscal year ending December 31, 2009 is a Missed Year, no more than $20 million may be credited from an Excess Account for such fiscal year.

Catch-Up. Notwithstanding the foregoing vesting provisions set forth in Section 3(b)(i), if Actual EBITDA does not equal or exceed the applicable Target EBITDA with respect to any of fiscal years 2007 through 2009 (a “Missed Year”), then, the EBITDA Performance Option may nevertheless vest and become exercisable with respect to the Shares subject to the EBITDA Performance Option in respect of such Missed Year as follows: (A) If the Actual EBITDA for any of the fiscal years ending December 31, 2007 through December 31, 2009 exceeds the Target EBITDA for such fiscal year (an “Excess Year”) and the Participant remains employed with the Company and its Affiliates through the Performance Vesting Date applicable to such Excess Year (i.e., following the end of such Excess Year), then an amount equal to the excess of the Actual EBITDA for such Excess Year over the Target EBITDA for such Excess Year shall be credited to a notional account for that Excess Year (an “Excess Account”). (B) Any amounts in an Excess Account shall be applied to any previous or subsequent Missed Year(s) (with application to the earliest Missed Year(s) first). If the sum of the Actual EBITDA for any Missed Year, when supplemented with amounts allocated to the Missed Year from the Excess Account equals or exceeds the applicable Performance Target for such Missed Year, then the EBITDA Performance Option shall vest and become exercisable with respect to the Shares subject to the EBITDA Performance Option in respect of such Missed Year and the amounts so allocated to the Missed Year from the Excess Account shall be debited from the Excess Account. Notwithstanding the foregoing, if the fiscal year ending December 31portion of the EBITDA Option that is scheduled to vest in respect of a given Fiscal Year does not vest because the EBITDA Goal is not achieved or exceeded in respect of such Fiscal Year (such Fiscal Year, 2009 an “EBITDA Goal Missed Year”), then (x) if the amount by which the EBITDA Goal is missed for the EBITDA Goal Missed Year is 3% of EBITDA or less, then with respect to the immediately following Fiscal Year (such Fiscal Year, the “First EBITDA Goal Make-Up Year”), if the aggregate of the EBITDA Goals for the EBITDA Goal Missed Year and the First EBITDA Goal Make-Up Year are achieved on a cumulative basis, 100% of the portion of the EBITDA Option which did not vest with respect to the EBITDA Goal Missed Year shall be deemed to vest on the EBITDA Option Performance Vesting Date that occurs immediately prior to the last day of such Fiscal Year or (y) if the amount by which the EBITDA Goal is missed for the EBITDA Goal Missed Year is in excess of 3% of EBITDA (A) with respect to the First EBITDA Goal Missed Year, no more than $20 million may if the aggregate of the EBITDA Goals for the EBITDA Goal Missed Year and the First EBITDA Goal Make-Up Year are achieved on a cumulative basis, sixty percent (60%) of the portion of the EBITDA Option that did not vest with respect to the EBITDA Goal Missed Year shall be credited from an Excess Account for deemed to vest on the EBITDA Option Performance Vesting Date that occurs immediately prior to the last day of such fiscal year.Fiscal