UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK,
AND THAT ANY SUCH SUIT, ACTION OR OTHER PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
(P)
WAIVER OF JURY TRIAL.
EACH PARTY HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR
ANY TRANSACTION CONTEMPLATED HEREBY.
EACH PARTY (I) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER
PARTIES HAVE BEEN INDUCED TO ENTER INTO THE AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12(P).
(Q)
SUBSEQUENT SECURITYHOLDERS.
EACH OF THE PARTIES HERETO AGREES
THAT IN ORDER FOR ANY PERSON WHO AFTER THE DATE OF THIS AGREEMENT ACQUIRES
EQUITY SECURITIES OR SECURITIES EXERCISABLE FOR OR CONVERTIBLE INTO EQUITY
SECURITIES (OR ANY INTEREST THEREIN) TO BECOME A PARTY TO THIS AGREEMENT, BOTH
THE COMPANY AND SUCH PERSON MUST EXECUTE SCHEDULE A HERETO AND DULY EXECUTED
COPIES THEREOF MUST BE DELIVERED TO THE OTHER SECURITYHOLDERS IN ACCORDANCE WITH
SECTION 12(C).
THE COMPANY SHALL MAINTAIN A REGISTER OF ALL PARTIES TO THIS
AGREEMENT WHICH SHALL BE AVAILABLE FOR REVIEW BY ANY PARTY HERETO.
ANY TRANSFER
OF EQUITY SECURITIES (OR ANY INTEREST THEREIN) TO A TRANSFEREE REQUIRED HEREBY
TO BECOME A PARTY TO THIS AGREEMENT SHALL BE OF NO EFFECT AND SHALL BE VOID AB
INITIO UNLESS SUCH TRANSFEREE BECOMES A PARTY TO THIS AGREEMENT AS PROVIDED IN
THE FIRST SENTENCE OF THIS SECTION 12(Q).
(R)
CERTAIN DEFINITIONS.
"Accepting Securityholder" has the meaning given in Section 2.
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly Controlling, Controlled by or under common Control with such first
Person.
"Agreement" has the meaning given in the Preamble.
"Applicable Law" means all applicable provisions of (i) constitutions, treaties,
statutes, laws (including the common law), rules, regulations, ordinances, codes
or orders of any Governmental Entity, (ii) any consents or approvals of any
Governmental Entity and (iii) any orders, decisions, injunctions, judgments,
awards, decrees of or agreements with any Governmental Entity.
"Bloomberg" means Bloomberg Financial L.P.
"Board" means the Board of Directors of the Company.
43
"Bonus Pool" has the meaning given in Section 9.
"Business Day" means a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required to close.
"Carlyle" has the meaning given in the Preamble.
"Carlyle IRR" means, as of any date, the internal rate of return, determined on
the basis of annual compounding, realized or to be realized by Carlyle as of
such date on the Equity Securities then owned by Carlyle.
The Carlyle IRR shall
be determined in respect of any Sale as if Carlyle liquidated its remaining