CAUSE THE COMPANY TO INITIATE A PARTNERSHIP SPLIT-UP.
IN
THE EVENT OF THE CONSUMMATION OF A PARTNERSHIP SPLIT-UP, WHETHER SUCH
PARTNERSHIP SPLIT-UP WAS INITIATED PURSUANT TO SECTION 4(A)(III), THIS
SECTION 4(B) OR OTHERWISE, THE PARTIES SHALL EFFECT A RECAPITALIZATION IN WHICH
THE SERIES A VOTING PREFERRED STOCK AND THE SERIES B VOTING PREFERRED STOCK ARE
RETIRED, AND THE COMPOSITION OF THE BOARD AND THE VOTING POWER OF THE
SECURITYHOLDERS IS ADJUSTED (AND THE CHARTER APPROPRIATELY AMENDED) SO AS TO
REFLECT AS CLOSELY AS REASONABLY PRACTICABLE THE ECONOMIC INTERESTS IN THE
COMPANY OF THE SERIES A SECURITYHOLDERS AND CARLYLE, (IT BEING UNDERSTOOD AND
AGREED THAT THE PARTIES SHALL TAKE SUCH STEPS AS MAY BE NECESSARY TO PERMIT THE
SERIES A SECURITYHOLDERS TO ELECT ONE MEMBER OF THE BOARD FOR SO LONG AS THE
FINAL RECLASSIFICATION SHALL NOT HAVE OCCURRED AND THE SERIES A SECURITYHOLDERS
CONTINUE TO HOLD AT LEAST 25% OF THE ISSUED AND OUTSTANDING SERIES C NON-VOTING
PREFERRED STOCK, IT BEING FURTHER UNDERSTOOD AND AGREED THAT, FOR SO LONG AS
MR. WILLNER SERVES AS THE CHIEF EXECUTIVE OFFICER OF THE COMPANY, IF THE
SERIES B SECURITYHOLDERS ARE ENTITLED TO ELECT A MAJORITY OF THE MEMBERS OF THE
BOARD UNDER THIS PARAGRAPH THEY SHALL CAUSE MR. WILLNER TO BE ELECTED TO SERVE
ON THE BOARD, AND IT BEING FURTHER UNDERSTOOD AND AGREED THAT THIS RIGHT SHALL
NOT LIMIT CARLYLE'S AUTHORITY TO INCREASE
15
THE SIZE OF THE BOARD), AND PROVIDED, FURTHER, THAT IF NO SUCH RECAPITALIZATION
HAS BEEN EFFECTED WITHIN 60 DAYS OF THE CONSUMMATION OF THE PARTNERSHIP
SPLIT-UP, CARLYLE SHALL HAVE THE RIGHT TO PURCHASE ALL OUTSTANDING SHARES OF
SERIES A VOTING PREFERRED STOCK FROM THE HOLDERS THEREOF FOR A PRICE EQUAL TO
ITS PAR VALUE PER SHARE.
SIMULTANEOUSLY WITH THE EXECUTION OF THIS AGREEMENT,
MR. KNAFEL, THE SRK RELATED PARTIES AND MR. WILLNER ARE DELIVERING TO CARLYLE
(AND, AT THE TIME OF ANY TRANSFER OF SERIES A VOTING PREFERRED STOCK PURSUANT TO
SECTION 1(A), THE PERMITTED ASSIGNEE WILL DELIVER TO CARLYLE) EXECUTED STOCK
POWERS FOR SUCH A TRANSFER.
CARLYLE AGREES NOT TO ATTEMPT TO MAKE THE PURCHASE
CONTEMPLATED BY SUCH DOCUMENTATION EXCEPT UNDER THE CIRCUMSTANCES HEREIN SET
FORTH.
(C)
CONTROL OF PROCESS.
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY:
(I)
AT ANY TIME FOLLOWING THE EARLIER OF (X) THE THIRD ANNIVERSARY OF
THE DATE OF THIS AGREEMENT AND (Y) THE DATE ON WHICH A PARTNERSHIP SPLIT-UP IS
INITIATED OTHER THAN BY THE COMPANY, CARLYLE SHALL CONTROL, AND MAKE ALL
DECISIONS REGARDING, THE PROCESS OF A SALE, QUALIFIED IPO, RECAP OR PARTNERSHIP
SPLIT-UP (INCLUDING, BUT NOT LIMITED TO, WITH RESPECT TO A PARTNERSHIP SPLIT-UP,
THE SEPARATION OF PARTNERSHIP ASSETS, THE ELECTION OF GROUPS OF PARTNERSHIP
ASSETS, THE TIMING, AND THE HIRING OF ADVISORS, AS APPROPRIATE, AND WITH RESPECT
TO A SALE, QUALIFIED IPO OR RECAP, THE SELECTION OF BUYERS, THE TIMING AND
HIRING OF ADVISORS, THE PRICING, THE TERMS AND CONDITIONS OF THE TRANSACTION,
THE SALE OF ANY ASSETS IN CONNECTION WITH A SALE, AND THE DRAFTING OF
DOCUMENTATION (THE