ITS
PERMITTED TRANSFEREES (SO LONG AS THE FUND AND ITS PERMITTED TRANSFEREES OWN IN
THE AGGREGATE AT LEAST TEN PERCENT (10%) OF THE OUTSTANDING COMMON STOCK), (III)
THE HOLDERS OF A MAJORITY OF THE COMMON STOCK HELD BY CVC AND ITS PERMITTED
TRANSFEREES
27
(so long as CVC and its Permitted Transferees own in the aggregate at least ten
percent (10%) of the outstanding Common Stock on a fully diluted basis, (iv) the
holders of a majority of the outstanding Common Stock on a fully diluted basis
(including Shares owned by the Fund, CVC and their Permitted Transferees) and
(v) only with respect to amendments of Sections 2.2, 2.3, 2.4, 2.5, 3.2(a), 3.4,
3.5, 3.6, Article V or Article VII hereof or any other term herein (other than
Article VI) that in each case directly and adversely affects the Management
Investors on a per-share basis disproportionately to any or all of the other
Investors, the holders of a majority of the Common Stock held by the Management
Investors.
No course of dealing between or among any persons having any
interest in this Agreement will be deemed effective to modify, amend or
discharge any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
7.2.
SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS SET FORTH IN THIS
AGREEMENT WILL SURVIVE THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE
CLOSING DATE AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY,
REGARDLESS OF ANY INVESTIGATION MADE BY AN INVESTOR OR ON ITS, HIS OR HER
BEHALF.
7.3.
SUCCESSORS AND ASSIGNS; ENTIRE AGREEMENT.
THIS AGREEMENT AND ALL OF THE PROVISIONS HEREOF SHALL BE BINDING UPON AND INURE
TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND
PERMITTED ASSIGNS AND EXECUTORS, ADMINISTRATORS AND HEIRS.
EXCEPT AS SET FORTH
IN THE AMENDMENT NO. 1 TO EXECUTIVE EMPLOYMENT AGREEMENT FOR THE COMPANY'S CHIEF
EXECUTIVE OFFICER ON THE DATE HEREOF (WHICH AMENDMENT NO. 1 SHALL CONTROL IN THE
EVENT OF A CONFLICT WITH THE TERMS CONTAINED HEREIN), THIS AGREEMENT SETS FORTH
THE ENTIRE AGREEMENT AND UNDERSTANDING AMONG THE PARTIES AS TO THE SUBJECT
MATTER HEREOF AND MERGES AND SUPERSEDES ALL PRIOR DISCUSSIONS AND UNDERSTANDINGS
OF ANY AND EVERY NATURE AMONG THEM.
EACH PARTY HERETO ACKNOWLEDGES AND AGREES
THAT THIS AGREEMENT SUPERSEDES THE SHAREHOLDERS AGREEMENT DATED DECEMBER 8, 1999
AMONG THE COMPANY AND THE SHAREHOLDERS OF THE COMPANY NAMED THEREIN, WHICH
SHAREHOLDERS AGREEMENT IS TERMINATED AT THE EFFECTIVE TIME.
7.4.
SEPARABILITY.
IN THE EVENT THAT ANY PROVISION
OF THIS AGREEMENT OR THE APPLICATION OF ANY PROVISION HEREOF IS DECLARED TO BE
ILLEGAL, INVALID OR OTHERWISE UNENFORCEABLE BY A COURT OF COMPETENT
JURISDICTION, THE REMAINDER OF THIS AGREEMENT SHALL NOT BE AFFECTED EXCEPT TO
THE EXTENT NECESSARY TO DELETE SUCH ILLEGAL, INVALID OR UNENFORCEABLE PROVISION
UNLESS THAT PROVISION HELD INVALID SHALL SUBSTANTIALLY IMPAIR THE BENEFITS OF
THE REMAINING PORTIONS OF THIS AGREEMENT.
7.5.
NOTICES.
ALL NOTICES PROVIDED FOR OR
PERMITTED HEREUNDER SHALL BE MADE