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This excerpt taken from the DIS 8-K filed Oct 6, 2005. Next Measurement Date”) shall remain outstanding until such Next Measurement Date. (Any restricted stock awards and unvested stock units subject to any
such award in excess of the Contingent Units shall be immediately forfeited upon Executive’s termination of employment). If, as of the Next Measurement Date, the applicable performance conditions in respect of such Contingent Units have been satisfied, Executive shall become vested and entitled to payment with respect to the product of the number of Contingent Units equal to (i) minus (ii), where (i) and (ii) are:
on (and including) the Commencement Date and ending on (and including) such Next Measurement Date;
Any Contingent Units which do not vest on such Next Measurement Date shall be forfeited on such Next Measurement Date. To illustrate the operation of pro-rated vesting as set forth in the foregoing paragraph in connection with the Stock Units, assume that Executive is terminated by the Company in a Termination Without Cause on December 31, 2008, after having satisfied all applicable performance measures as of the Measurement Date occurring on the last day of the fiscal year ending on or about September 30, 2008, so that 60% (or 300,000) of such Stock Units shall have already become vested. Assume that on the last day of the fiscal year ending on or about September 30, 2009, which is the next Measurement Date for such Stock Units, the applicable performance conditions are also satisfied, so that Executive would have vested in 80% (or 400,000) of the Stock Units. By reason of the pro-rated vesting related to the Termination Without Cause, Executive would be entitled to vest as of September 30, 2009 in 25,257 additional Stock Units ((400,000 times (the quotient of 1188 days of employment by the 1461 days in the performance period)) minus the 300,000 Stock Units that had already vested). (v) In the event of a Termination Without Cause or a Termination for Good Reason, any stock options granted to Executive prior to 2005 that would have become vested under Section 12(iv) of the Current Agreement, shall become exercisable in full, and remain exercisable for the periods specified in the applicable option agreements. (vi) Following any Termination Without Cause or Termination for Good Reason, Executive and his eligible dependents who were participating in any such arrangements at the date of Executive’s termination of employment shall be entitled to continued participation in all medical, dental and hospitalization benefit plans or programs in which he and/or they were participating on the date of the termination of his employment until the earlier of (A) 24 months following termination of his employment and (B) the date, or dates, he receives equivalent coverage and benefits under the plans and programs of a subsequent employer; provided that if Executive’s continued participation in any employee plan or program as provided in this Paragraph 6(b)(vi) would conflict with any law or regulation, or would result in any adverse tax consequences for Executive, the Company or other participants in such plan or program, he shall be provided with the economic equivalent of the benefits provided under the plan or program in which he is unable to participate. In the case of any welfare benefit plan, the economic equivalent of any benefit foregone (x) shall be deemed to be the lowest cost that would be incurred by Executive in obtaining such benefit himself on an individual basis and (y) shall be provided on a “tax grossed-up basis” to the extent the economic equivalent is taxable to Executive but the provision of the benefit to Executive while an employee was not taxable. (c) Timing of Payments. The Earned Compensation described in subclause (a) of the definition of such term and the Severance Payment shall be paid in a single lump sum as soon as practicable, but in no event more than 15 days, following the end of the Employment Period, but subject, in the case of the Severance Payment, to Executive’s execution and non-revocation of the release referenced in Paragraph 8. The Earned Compensation described in subclause (b) of
the definition of such term shall be paid at the same time it would have been payable to Executive had he continued in the Company’s employment. Vested Benefits shall be payable in accordance with the terms of the plan, policy, practice, program, contract or agreement under which such benefits have accrued. Payments in respect of vested Stock Units shall be made in accordance with the terms of Paragraph 4(d) hereof. (d) Definitions. For purposes of this Paragraph 6 and, to the extent applicable, Paragraph 7, the following terms shall have the meanings ascribed to them below: “ | ||||||||||||||||||||||
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