EXECUTION COPY
DIRECTOR DESIGNATION AGREEMENT
Director Designation Agreement (the "Agreement") dated as of
December 28, 2001 by and among Chancery Lane/GSC Investors L.P., a Delaware
limited partnership (the "Partnership"), Greenwich Street Capital Partners II,
L.P., a Delaware limited partnership that is a limited partner of the
Partnership (the "Representative Class A Limited Partner"), and MIC Investors,
Inc., a Delaware corporation and the general partner of the Partnership (the
"General Partner"). Capitalized terms used herein but not otherwise defined
herein shall have the meanings assigned thereto in the Debenture Purchase
Agreement dated as of December 12, 2000 between Xxxxx and the Partnership (the
"Debenture Purchase Agreement").
WHEREAS, the Partnership purchased an 8.70% Convertible Subordinated
Debenture due June 30, 2009 from Xxxxx pursuant to the Debenture Purchase
Agreement;
WHEREAS, Section 6 of the Debenture Purchase Agreement provides that
the Partnership shall have the right to designate one or two persons to the
Board of Xxxxx;
WHEREAS, pursuant to the Second Amendment to Partnership Agreement and
Conversion Agreement dated as of the date hereof (the "Second Amendment"), the
Partnership has agreed to dissolve in accordance with the terms and conditions
set forth therein; and
WHEREAS, in connection with such dissolution, the Partnership wishes to
assign its governance rights under Section 6 of the Debenture Purchase Agreement
to the Representative Class A Limited Partner and to provide for the designation
of members of the Board pursuant to such Section 6, upon the terms and subject
to the conditions herein.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. ASSIGNMENT OF GOVERNANCE RIGHTS. Effective upon its dissolution of
the Partnership pursuant to the Second Amendment, the Partnership hereby assigns
to the Representative Class A Limited Partner and the Representative Class A
Limited Partner hereby accepts, the rights of the Partnership under Section 6 of
the Debenture Purchase Agreement.
2. AGREEMENT TO DESIGNATE DIRECTORS. Each party to this Agreement, by
its execution of this Agreement, hereby agrees that if, at any time, the
Partnership has the right to designate two persons as members of the Board
pursuant to Sections 6.1(b) and 6.3 of the Debenture Purchase Agreement, such
persons shall be Xxxx Xxxxxxxx (or such other person specified by the General
Partner in compliance with Section 6.1 of the Debenture Purchase Agreement) and
Xxxxxx X. Xxxxxx III (or such other person specified by the Representative Class
A Limited Partner in compliance with Section 6.1 of the Debenture Purchase
Agreement). If, at any time, the Partnership has the right to designate one
person as a member of the Board, such person shall be Xxxxxx X. Xxxxxx III (or
such other person specified by the Representative Class A Limited Partner in
compliance with Section 6.1 of the Debenture Purchase Agreement).
3. MISCELLANEOUS.
(a) LAWS GOVERNING. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to its
principles of conflicts of laws.
(b) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective heirs, legal
representatives, successors and assigns.
(c) SEVERABILITY. The provisions of Agreement are intended to be
performed in accordance with, and only to the extent permitted by, all
applicable laws, ordinances, rules and regulations. If any provision of this
Agreement or the application thereof to any Person or circumstance shall, for
any reason and to any extent, be invalid or unenforceable, the remainder of this
Agreement and the application of such provision to other Persons or
circumstances shall not be affected thereby, but rather shall be enforced to the
greatest extent permitted by law.
(d) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original of this Agreement and
all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above stated.
CHANCERY LANE/GSC INVESTORS L.P.
By: MIC Investors, Inc., its General
Partner
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
GREENWICH STREET CAPITAL PARTNERS II, L.P.
By: Greenwich Street Investments II,
L.L.C., its General Partner
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
MIC INVESTORS, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxxx
Title: President
[Signature Page - Director Designation Agreement]
