POOL.
(F)
ORDINARY COURSE BONUSES.
FOR THE AVOIDANCE OF DOUBT, IT IS NOT
INTENDED THAT THE BONUS POOL ESTABLISHED PURSUANT TO THIS SECTION 9 WILL REPLACE
OR BE IN LIEU OF THE BONUSES THAT THE COMPANY AWARDS UNDER ITS ORDINARY COURSE
COMPENSATION POLICIES AS DETERMINED BY ITS COMPENSATION COMMITTEE.
SECTION 10.
CERTAIN RIGHTS AND OBLIGATIONS.
(A)
CERTAIN VOTING RIGHTS; VENTURE CAPITAL INVESTMENT.
THE COMPANY
ACKNOWLEDGES THAT CARLYLE HAS THE RIGHT TO ELECT DIRECTORS TO SERVE ON THE BOARD
BY VIRTUE OF THE OWNERSHIP OF THE SERIES B VOTING PREFERRED STOCK.
THE CARLYLE
ENTITIES AGREE THAT THEY SHALL EXERCISE THEIR VOTING RIGHTS WITH RESPECT TO THE
SERIES B VOTING PREFERRED STOCK IN ORDER TO CAUSE EACH OF CP III AND CP IV TO
HAVE THE RIGHT TO DESIGNATE AT LEAST ONE DIRECTOR TO SERVE ON THE BOARD FOR SO
LONG AS CARLYLE HAS THE RIGHT TO ELECT DIRECTORS.
IN ADDITION, THE COMPANY
HEREBY AGREES THAT IT SHALL (I) PROVIDE EACH OF CP III AND CP IV WITH THE
OPPORTUNITY TO DESIGNATE A PERSON TO SERVE AS ITS OBSERVER ON THE BOARD, WHICH
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PERSON SHALL HAVE THE AUTHORITY TO ATTEND ANY MEETING OF THE BOARD AND SHALL
RECEIVE NOTICE OF ALL MEETINGS OF THE BOARD AS THOUGH SUCH PERSON WERE A MEMBER
OF THE BOARD, (II) FURNISH EACH OF CP III AND CP IV WITH SUCH FINANCIAL AND
OPERATING DATA AND OTHER INFORMATION WITH RESPECT TO THE BUSINESS AND PROPERTIES
OF THE COMPANY AS THE COMPANY PREPARES AND COMPILES FOR ITS DIRECTORS IN THE
ORDINARY COURSE AND AS CP III OR CP IV MAY FROM TIME TO TIME REASONABLY REQUEST
AND (III) SHALL PERMIT EACH OF CP III AND CP IV TO DISCUSS THE AFFAIRS, FINANCES
AND ACCOUNTS OF THE COMPANY WITH, AND TO MAKE PROPOSALS AND FURNISH ADVICE WITH
RESPECT THERETO TO, THE PRINCIPAL OFFICERS OF THE COMPANY.
THE RIGHTS SET FORTH
IN THIS SECTION 10(A) ARE INTENDED TO SATISFY THE REQUIREMENT OF CONTRACTUAL
MANAGEMENT RIGHTS FOR THE PURPOSE OF QUALIFYING EACH OF CP III AND CP IV AS A
"VENTURE CAPITAL OPERATING COMPANY" UNDER THE DEPARTMENT OF LABOR'S "PLAN
ASSETS" REGULATIONS.
(B)
RESTRICTIONS ON RIGHTS IN CERTAIN BUSINESS VENTURES.
NONE OF THE
COMPANY, THE COMPANY SUBSIDIARIES OR ANY OF THE COMPANY'S STOCKHOLDERS SHALL
HAVE ANY RIGHTS IN ANY BUSINESS VENTURE, INVESTMENT, OR ACTIVITIES OF ANY OTHER
STOCKHOLDER OF THE COMPANY BY REASON OF SUCH OTHER STOCKHOLDER'S INVESTMENT IN,
OR CONTRACTUAL RELATIONSHIP WITH, THE COMPANY.
(C)
INDEPENDENT DIRECTORS.
IF AT ANY TIME THAT ANY VOTING PREFERRED
STOCK IS ISSUED AND OUTSTANDING, AN INDEPENDENT DIRECTOR ELECTED BY THE SERIES A
VOTING PREFERRED STOCK OR THE SERIES B VOTING PREFERRED STOCK CEASES TO SATISFY
THE INDEPENDENCE REQUIREMENTS SETS FORTH IN THE DEFINITION OF "INDEPENDENT
DIRECTOR" IN THE CHARTER, THE HOLDERS OF THE APPLICABLE SERIES OF VOTING
PREFERRED STOCK SHALL REMOVE SUCH DIRECTOR.
SECTION 11.
PROXIES.
(A)
THE FOLLOWING PROXIES AND POWERS ARE GIVEN IN CONNECTION WITH THE
ENTRY INTO THIS AGREEMENT:
(i)
Upon Mr. Knafel's death or incapacity such that he