Common use of Performance Determinations Clause in Contracts

Performance Determinations. (a) If the Participant is employed with EMI or the Company and its Affiliates at the completion of the Performance Period, then following completion of the Performance Period the Company will determine the amount of the Total Award payable to the Participant based on Exhibit A. (b) [Reserved.] (c) If, in connection with a Change in Control, the successor company, or a parent of the successor company, in the Change in Control does not agree to assume, replace, or substitute the PSUs granted hereunder (as of the consummation of such Change in Control) with PSUs on substantially identical terms, as determined by the Committee, then as of immediately prior to such Change in Control, the Company will determine the Total Award, calculated based on the Target Award. (d) Payment of awards shall be made on a date (the “Payment Date”) as soon as administratively practicable following the completion of the Performance Period (the “Vesting Date”). On the Payment Date, the Participant shall be entered as the stockholder of record for the number of PSUs covered by the Award which the Committee determines, in writing, have been earned and certified pursuant to Exhibit A, and which have vested pursuant to the terms and conditions of this Agreement. If the Participant is deemed a Specified Employee at the time of the Vesting Date, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such payment will be delayed until the earlier of the date that is six months following the Vesting Date and the Participant’s death. (e) Except as may be otherwise provided in this Agreement, at no time prior to such Vesting Date shall the Participant be deemed for any purpose to be the owner of shares of Common Stock in connection with an Award and the Participant shall have no right prior to applicable Vesting Dates to vote Shares in respect of the Award. The Participant will not have any rights of a shareholder of the Company with respect to the PSUs until the delivery of the underlying Shares. The obligations of the Company under this Agreement will be merely that of an unfunded and unsecured promise of the Company to deliver Shares in the future, and the rights of the Participant will be no greater than that of an unsecured general creditor. No assets of the Company will be held or set aside as security for the obligations of the Company under this Agreement. (f) All determinations with respect to the Award or this Agreement by the Company or Committee, including, without limitation, determinations of the Total Award, and timing of settlements, shall be within the Company’s absolute discretion and shall be final, binding and conclusive on the Participant.

Performance Determinations. (a) If the Participant is employed with EMI or the Company and or its Affiliates at the completion of the Performance Period, then following completion of the Performance Period the Company will determine the amount of the Total Award payable to the Participant based on Exhibit Appendix A. (b) [ReservedIf the Participant’s employment with the Company or its Affiliates has terminated prior to the end of the Performance Period due to death, Disability, or retirement, then as soon as administratively feasible (in the Committee’s sole discretion) following such termination the Company will determine the Total Award payable to Participant. The Total Award shall be calculated based on the Target Number of PSUs identified on Appendix A multiplied by a fraction, the numerator of which is the total number of complete months worked by the Participant during the performance Period, and the denominator of which is thirty-six (36), the total number of months in the Performance Period.] (c) If, in connection with a Change in Control, the successor company, or a parent of the successor company, in the Change in Control does not agree to assume, replace, or substitute the PSUs granted hereunder (as of the consummation of such Change in Control) with PSUs on substantially identical terms, as determined by the Committee, then as of immediately prior to such Change in Control, the Company will determine the Total Award, calculated based on the Target Award. (d) Payment of awards shall be made on a date (the “Payment Date”) as soon as administratively practicable following the completion of the Performance Period (the “Vesting Date”). On the Payment Date, the Participant shall be entered as the stockholder of record for the number of PSUs covered by the Award which the Committee determines, in writing, have been earned and certified pursuant to Exhibit Appendix A, and which have vested pursuant to the terms and conditions of this Agreement. If the Participant is deemed a Specified Employee at the time of the Vesting Date, then to the extent necessary to prevent any accelerated or additional tax under Section 409A of the Code, such payment will be delayed until the earlier of the date that is six months following the Vesting Date and the Participant’s death. (e) Except as may be otherwise provided in this Agreementan Agreement approved by the Compensation Committee, at no time prior to such Vesting Date shall the Participant be deemed for any purpose to be the owner of shares of Common Stock in connection with an Award and the Participant shall have no right prior to applicable Vesting Dates to vote Shares in respect of the Award. The Participant will not have any rights of a shareholder of the Company with respect to the PSUs until the delivery of the underlying Shares. The obligations of the Company under this Agreement will be merely that of an unfunded and unsecured promise of the Company to deliver Shares in the future, and the rights of the Participant will be no greater than that of an unsecured general creditor. No assets of the Company will be held or set aside as security for the obligations of the Company under this Agreement. (f) All determinations with respect to the Award or this Agreement by the Company or Committee, including, without limitation, determinations of the Total Award, and timing of settlements, shall be within the Company’s absolute discretion and shall be final, binding and conclusive on the Participant.