ANY PROFESSIONAL ADVISERS OR ANY CONSULTANTS WHOSE FEES ARE
COLLECTIVELY IN EXCESS OF $250,000 ANNUALLY;
(XX)
THE ADOPTION OF THE ANNUAL BUDGET FOR THE
COMPANY AND ITS SUBSIDIARIES AND ANY AMENDMENT THERETO (AND THE EXECUTIVES SHALL
PROCURE THAT SUCH BUDGET IS PRESENTED TO THE DIRECTORS DESIGNATED BY THE FUND
AND CVC (IF THERE ARE ANY) AT LEAST 2 WEEKS PRIOR TO THE START OF EACH FISCAL
YEAR OF THE COMPANY);
(XXI)
THE ENTERING INTO BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES OF ANY CONTRACT OF MORE THAN 12 MONTHS DURATION (WHICH CANNOT BE
TERMINATED UPON 90 DAYS NOTICE WITHOUT PENALTY) WHICH OBLIGATES THE COMPANY OR
ANY OF ITS SUBSIDIARIES TO MAKE ESTIMATED EXPENDITURES OF MORE THAN US$1,000,000
PER ANNUM OR PROJECTED REVENUE OF MORE THAN $1,000,000 PER ANNUM; AND
(XXII)
THE ENTERING INTO BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES OF ANY AGREEMENT OR ARRANGEMENT BY WHICH IT MAKES LOANS OR ADVANCES
MONEY TO ANY PERSON OTHER THAN MINOR ADVANCES TO EMPLOYEES IN THE ORDINARY
COURSE OF BUSINESS OR INVESTMENTS WITH ANY MATURITY OF LESS THAN A YEAR.
The list of acts described in this Section 4.4(b) can be amended by a decision
of the Board of Directors of the Company.
(C)
NOTWITHSTANDING THE FORGOING, NOTHING
CONTAINED IN THIS SECTION 4.4 OR ELSEWHERE IN THIS AGREEMENT SHALL PROHIBIT THE
EXECUTION, DELIVERY AND PERFORMANCE OF THE ADVISORY AGREEMENT, DATED AS OF THE
CLOSING DATE, BY AND BETWEEN THE COMPANY AND CVC MANAGEMENT LLC.
ARTICLE V
ADDITIONAL RESTRICTIONS ON MANAGEMENT INVESTORS
5.1.
CERTAIN DEFINITIONS.
THE TERMS DEFINED BELOW
SHALL HAVE THE FOLLOWING MEANINGS WHEN USED IN THIS ARTICLE V:
(A)
"CAUSE" SHALL MEAN (1) A MANAGEMENT
INVESTOR'S CONVICTION OF, PLEADING
21
GUILTY TO, OR CONFESSING TO ANY FELONY, (2) A MANAGEMENT INVESTOR'S ACT OR ACTS
AMOUNTING TO MORAL TURPITUDE WHICH ARE MATERIALLY DETRIMENTAL TO THE COMPANY,
(3) A MANAGEMENT INVESTOR'S FRAUD OR EMBEZZLEMENT OF FUNDS OR PROPERTY OF ANY
MEMBER OF THE GROUP, (4) CHRONIC DRUG OR ALCOHOL ABUSE CAUSING ANY MEMBER OF THE
GROUP SUBSTANTIAL PUBLIC DISGRACE OR DISREPUTE OR ECONOMIC HARM, OR (5) A
MANAGEMENT INVESTOR'S SUBSTANTIAL AND REPEATED FAILURE TO PERFORM DUTIES AS
REASONABLY DIRECTED BY THE BOARD OF DIRECTORS OF THE COMPANY, AND WHEN SUCH
FAILURE OR ACT SET FORTH IN THE PRECEDING SUBPARAGRAPHS (1) THROUGH (5) IS
CAPABLE OF REMEDY, SUCH FAILURE OR ACT IS NOT REMEDIED WITHIN FIFTEEN BUSINESS
DAYS AFTER WRITTEN NOTICE OF SUCH FAILURE IS GIVEN TO THE MANAGEMENT INVESTOR BY
THE COMPANY.
(B)
"FAIR MARKET VALUE" SHALL MEAN THE PRICE
AGREED UPON BETWEEN THE MANAGEMENT INVESTOR (OR PERMITTED TRANSFEREE) HOLDING
THE APPLICABLE MANAGEMENT SHARES AND THE BOARD OF DIRECTORS OF THE COMPANY OR,
IF THEY DO NOT AGREE ON A PRICE WITHIN 14 DAYS OF THE DATE SUCH MANAGEMENT
INVESTOR IS NOTIFIED OF A REPURCHASE PURSUANT TO THIS ARTICLE V, THE PRICE
CERTIFIED BY PRICEWATERHOUSECOOPERS LLP (OR, IN THE CASE OF A VALUATION OF 4,000
SHARES OR MORE, BY A MUTUALLY AGREED FINANCIAL EXPERT), ACTING AS EXPERTS AND
NOT AS