Common use of Composition of Board of Directors Clause in Contracts

Composition of Board of Directors. The shares of Series A Preferred --------------------------------- Stock issued pursuant to the Series A Purchase Agreement, the shares of Series B Preferred Stock issued pursuant to the Series B Purchase Agreement, the shares of Series C Preferred Stock issued pursuant to the Series C Purchase Agreement and issued or issuable upon exercise of the Series C Warrants, the shares of Series D Preferred Stock issued pursuant to the Series D Purchase Agreement and issued or issuable upon exercise of the H&Q Series D Warrants, the shares of Series E Preferred Stock issued pursuant to the Purchase Agreement, and, unless the context requires otherwise, the shares of Common Stock issued or issuable upon the conversion of such shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock are referred to in this Agreement as the "Shares." For so long as at least 200,000 Shares are outstanding, the Purchasers and the Common Stockholders agree that in any election of directors of the Company, they shall vote all shares of capital stock of the Company owned or controlled by them, including all Shares, to elect a Board of Directors comprising not less than eight nor more than eleven directors designated as follows: (i) five directors shall be designated by the holders of a majority of the Shares (each a "Purchaser Director"); provided, that one Purchaser -------- Director may be designated by Austin Ventures for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Xxxxxxxx-Xxxxx for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Scripps for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Oak for so long as it holds at least 100,000 Shares, and one Purchaser Director may be designated by Global for so long as it holds at least 100,000 Shares; and

Composition of Board of Directors. The shares of Series A Preferred --------------------------------- Stock issued pursuant to the Series A Purchase Agreement, the shares of Series B Preferred Stock issued pursuant to the Series B Purchase Agreement, the shares of Series C Preferred Stock issued pursuant to the Series C Purchase Agreement and issued or issuable upon exercise of the Series C Warrants, the shares of Series D Preferred Stock issued pursuant to the Series D Purchase Agreement and issued or issuable upon exercise of the H&Q Series D Warrants, the shares of Series E Preferred Stock issued pursuant to the Purchase Agreement, and, unless the context requires otherwise, the shares of Common Stock issued or issuable upon the conversion of such shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock are referred to in this Agreement as the "Shares." For so long as at least 200,000 Shares are outstanding, the Purchasers and the Common Stockholders Shareholders agree that in any election of directors of the Company, Company they shall vote or act by written consent, as the case may be, all shares of capital stock of the Company now or hereafter owned or controlled by them, including all Sharesshares that they are entitled to vote under any voting trust, voting agreement or proxy, to elect a Board of Directors comprising comprised of not less fewer than eight nor more seven directors (or not fewer than eleven six directors when Hull (as defined) is no longer employed by the Company as described in subsection (c) below) designated as follows: (ia) five a majority of the directors (each an “ABRY Director” and collectively, the “ABRY Directors”) shall be designated by the holders of a majority ABRY for so long as ABRY holds at least 10% of the Shares number of shares of Common Stock that ABRY holds on the date hereof (each a "as appropriately and equitably adjusted for stock splits, stock combinations and the like); (b) one director (the “AV Director” and, together with the ABRY Directors, the “Purchaser Director"); provided, that one Purchaser -------- Director may Directors”) shall be designated by Austin Ventures for so long as it Austin Ventures holds an aggregate of at least 100,000 Shares10% of the number of shares of Recapitalization Common Stock and/or Series A Preferred Stock that Austin Ventures holds on the date hereof (as appropriately and equitably adjusted for stock splits, stock combinations and the like); (c) one Purchaser Director may director (the “President Director”) shall be designated by Xxxxxxxx-Xxxxx X. Xxxx (“Xxxx”), for so long as it holds at least 100,000 SharesHull is employed by the Company; and (d) one director (the “CEO Director”) shall be the individual, one Purchaser Director may be designated by Scripps if any, who is the Chief Executive Officer of the Company from time to time, for so long as it holds at least 100,000 Sharessuch individual is employed by the Company in the position of Chief Executive Officer. The initial ABRY Directors shall be Xxx Xxxxxxxx, one Purchaser Director may be designated by Oak for so long as it holds at least 100,000 SharesXxxx Xxxxxx, Xxxxx Xxxxxxx, and one Purchaser Xxxxx Xxxxx, and the initial AV Director may shall be designated by Global for so long as it holds at least 100,000 Shares; andXxxxxx Xxxxxx. The obligation to vote shares in accordance with this Paragraph 1A shall be specifically applicable to and enforceable against any transferees of the parties hereto.

Composition of Board of Directors. The shares Board of Series A Preferred --------------------------------- Stock issued Directors of the Company shall be constituted pursuant to the Series A terms of this Section 4. (a) At the election of directors immediately following the closing of the transactions contemplated by the Securities Purchase Agreement, HT agrees to vote all of its Shares as to which it has voting power to elect two (2) directors nominated by the Investors (the "INVESTOR DIRECTORS"). HT agrees to vote in favor of (i) two (2) directors nominated by the Investors, so long as the Investors beneficially own at least 12.5% of the Company's common stock, calculated on an "as converted" basis and calculated taking into account (A) shares issuable under currently outstanding options, (B) shares issuable upon the exercise of Series B Preferred Stock warrants issued to Sprint Spectrum L.P. pursuant to contractual obligations entered into prior to the date hereof, (C) shares issuable to First Union Investors, Inc. pursuant to the Series B First Union Conversion (as such term is defined in the Securities Purchase Agreement, the ) and (D) shares of Series C Preferred Stock issued pursuant to the Series C Purchase Agreement and issued or issuable upon exercise of warrants to be issued in connection with the Series C WarrantsSenior Notes Offering or (ii) one (1) director nominated by the Investors, so long as the Investors beneficially own between 5% and 12.49% of the Company's common stock, calculated on an "as converted" basis and calculated taking into account (A) shares issuable under currently outstanding options, (B) shares issuable upon the exercise of Series D Preferred Stock warrants issued to Sprint Spectrum L.P. pursuant to contractual obligations entered into prior to the date hereof, (C) shares issuable to First Union Investors, Inc. pursuant to the Series D Purchase Agreement First Union Conversion and issued or (D) shares issuable upon exercise of warrants to be issued in connection with the H&Q Series D WarrantsSenior Notes Offering. Notwithstanding the foregoing, HT agrees to vote in favor of two (2) directors nominated by the Investors until the earlier of (A) the completion of the Company's Public Offering that generates gross proceeds of at least $65 million and (B) May 1, 2001. To the extent the Investors beneficially own less than 5% of the Company's common stock, calculated on an "as converted" basis and calculated taking into account (A) shares issuable under currently outstanding options, (B) shares issuable upon the exercise of Series E Preferred Stock warrants issued to Sprint Spectrum L.P. pursuant to contractual obligations entered into prior to the date hereof, (C) shares issuable to First Union Investors, Inc. pursuant to the Purchase Agreement, and, unless First Union Conversion and (D) shares issuable upon exercise of warrants to be issued in connection with the context requires otherwiseSenior Notes Offering, the shares of Common Stock issued or issuable upon Investors shall cause the conversion of such shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock are referred Investor Directors to in this Agreement as resign their seats on the "Shares." For so long as at least 200,000 Shares are outstanding, the Purchasers and the Common Stockholders agree that in any election of directors of the Company, they shall vote all shares of capital stock of the Company owned or controlled by them, including all Shares, to elect a Board of Directors comprising not less than eight nor more than eleven directors designated as follows:Directors. (ib) five directors shall be designated by the holders of a majority of the Shares (each a "Purchaser Director"); provided, that one Purchaser -------- Director may be designated by Austin Ventures After such election and for so long as HT shall be obligated to vote for two (2) directors nominated by the Investors to serve on the Board pursuant to Section 4.1(a) above, HT shall vote at any regular or special meeting of shareholders (or by written consent) all of the Shares as to which it holds has voting power to ensure that the size of the Board shall be set and remain at least 100,000 Sharesseven (7) directors, one Purchaser unless the Investor Directors have approved an increase in the size of the Board. (c) One Investor Director may shall be designated by Xxxxxxxx-Xxxxx for so long elected as it holds at least 100,000 Shares, one Purchaser Director may be designated by Scripps for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Oak for so long as it holds at least 100,000 Sharesa Class I director, and one Purchaser Investor Director may shall be designated by Global for so long elected as it holds at least 100,000 Shares; anda Class III director. (d) In the event that any director (a "WITHDRAWING DIRECTOR") nominated in the manner set forth in Section 4.1 hereof is unable to serve, or once having commenced to serve is removed or withdraws from the Board of Directors, such Withdrawing Director's replacement (the "SUBSTITUTE DIRECTOR") will be nominated in the same manner in which such Withdrawing Director was nominated in accordance with Section 4.1(a) hereof. Each of the Shareholders shall take all action necessary to cause the prompt election of such Substitute Director.

Composition of Board of Directors. (a) The shares Board shall consist of Series A Preferred --------------------------------- Stock issued up to seven (7) members, except when the size of the Board may need to be increased pursuant to Section 3.1(h) herein, at which time the Board shall consist of up to fifteen (15) members. Stockholders shall have the right to nominate directors as set forth below. All Stockholders shall comply with the provisions of this Article 3 to ensure that nominees are elected to (or removed from) the Board. (b) The Chief Executive Officer of the Company shall have the right to nominate one (1) individual to be a director; provided, however, that such individual must be a member of the management team of the Company (the “Management Director”). (c) ICG Holdings, Inc., a Delaware corporation (“ICG”) or its assignee, shall have the right to nominate two (2) individuals to be directors. (d) 3i shall have the right to nominate one (1) individual to be a director. (e) Wall Street Technology Partners LP, a Delaware limited partnership (“Wall Street”), shall have the right to nominate one (1) individual to be a director. (f) Wall Street and 3i, acting jointly, and ICG, acting individually, shall each have the right to nominate one (1) additional individual to be a director. Such directors shall be independent and not an Affiliate of any of the Prior Preferred Holders, the Original Series AA Investors or the Series A Purchase Agreement, BB Investors. Such directors are referred to collectively as the shares of Series B Preferred Stock issued pursuant “Independent Directors.” (g) If at any time Wall Street ceases to the Series B Purchase Agreement, the shares of Series C Preferred Stock issued pursuant to the Series C Purchase Agreement and issued or issuable upon exercise own more than fifty percent (50%) of the Series C Warrants, the shares of Series D AA Preferred Stock issued pursuant to the and Series D Purchase Agreement and issued or issuable upon exercise of the H&Q Series D Warrants, the shares of Series E Preferred Stock issued pursuant to the Purchase Agreement, and, unless the context requires otherwise, the shares of Common Stock issued or issuable upon the conversion of such shares of Series A BB Preferred Stock, considered together as a single class, that it owns as of the date hereof (on a Fully-Diluted Basis), Wall Street’s right to appoint an individual to be a director pursuant to Section 3.1(e) shall immediately become null and void. If at any time 3i ceases to own more than fifty percent (50%) of the Series B AA Preferred Stock and Series BB Preferred Stock that it owns as of the date hereof (on a Fully-Diluted Basis), 3i’s right to appoint an individual to be a director pursuant to Section 3.1(d) shall immediately become null and void. If at any time ICG ceases to own more than fifty percent (50%) of the Series AA Preferred Stock and Series BB Preferred Stock that it owns as of the date hereof (on a Fully-Diluted Basis), ICG’s right to appoint an Independent Director pursuant to Section 3.1(f) shall immediately become null and void and ICG’s right to appoint two individuals to be directors pursuant to Section 3.1(c) shall be modified to permit ICG to appoint one individual to be a director. If at any time ICG ceases to own more than eighty percent (80%) of the Series AA Preferred Stock and Series BB Preferred Stock that it owns as of the date hereof (on a Fully-Diluted Basis), ICG’s right to appoint two individuals to be directors pursuant to Section 3.1(c) and ICG’s right to appoint an Independent Director pursuant to Section 3.1(f) shall each immediately become null and void. (h) Notwithstanding anything to the contrary contained in this Section 3.1, upon the redemption of the Series BB Preferred Stock, if the Company shall issue to the former holders of the Series C Preferred Stock, Series D BB Preferred Stock or a one-year interest bearing note in lieu of payment in full in cash upon the redemption of the Series E BB Preferred Stock are referred to in this Agreement as the "Shares." For so long as at least 200,000 Shares are outstanding, the Purchasers and the Common Stockholders agree that in any election of directors of accordance with the Company’s Fifth Articles of Amendment and Restatement (the “Fifth Articles”), they shall vote all shares of capital stock of the Company owned or controlled by them, including all Shares, to elect a Board of Directors comprising not less than eight nor more than eleven directors designated as follows: (i) five directors shall be designated by the holders of a majority of the Shares Series BB Preferred Stock outstanding immediately prior to the redemption shall have the right, upon the redemption of the Series BB Preferred Stock, to designate a majority of the directors of the Board. This right to designate a majority of the directors of the Board shall continue until the one-year interest bearing note is paid in full in cash. All Stockholders and the Company agree to take any actions necessary or desirable (each a "Purchaser Director"); provided, that one Purchaser -------- Director may be including increasing the size of the Board but not including the removal of any directors designated by Austin Ventures for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Xxxxxxxx-Xxxxx for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Scripps for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Oak for so long as it holds at least 100,000 Shares, and one Purchaser Director may be designated by Global for so long as it holds at least 100,000 Shares; andany such Stockholder) to enforce this right of the Series BB Investors to designate a majority of the directors of the Board.

Composition of Board of Directors. The shares As provided in the Company’s Bylaws, the number of Series A Preferred --------------------------------- Stock issued members of the Board of Directors shall initially be three. Each Shareholder shall vote all of its shares, and shall take all other necessary and desirable actions within such Shareholder’s control (whether in its capacity as a shareholder, director, member of a board committee or officer of the Company or otherwise), and the Company shall take all necessary and desirable actions within its control (including, without limitation, calling special board and shareholders’ meetings) to ensure that: (a) the number of directors constituting the Board of Directors remains three until the earlier to occur of (i) the first date on which CPK holds less than twenty-three percent (23%) of the Then Outstanding Shares and (ii) that date on which CPK elects not to exercise its right of first refusal set forth in Section 6 to purchase its entire pro rata share of New Securities; (b) one of the members of the Board of Directors shall be an individual designated by Flax, who shall initially be Xxxxx Xxxx; (c) one of the members of the Board of Directors shall be an individual designated by Xxxxxxxxxx, who shall initially be Xxxxxxx Xxxxxxxxxx; (d) until the first date on which CPK no longer holds at least fifteen percent (15%) of the Then Outstanding Shares, one of the members of the Board of Directors shall be an individual designated by CPK, who shall initially be Xxxx Xxxx; (e) in the event that any member of the Board of Directors who was designated by either Flax and Xxxxxxxxxx ceases to serve as a director for any reason, that the Shareholder who designated such designee shall designate the successor member of the Board of Directors thereto, and that such designee shall become a member of the Board of Directors; (f) in the event that the member of the Board of Directors who was designated by CPK ceases to serve as a director for any reason, and such cessation occurs prior to the first date on which CPK no longer holds at least fifteen percent (15%) of the Then Outstanding Shares, that CPK shall designate the successor member of the Board of Directors thereto, and that such designee shall become a member of the Board of Directors; (g) in the event that a Shareholder desires to remove from the Board of Directors the member designated by such Shareholder, that the Shareholders and the Company shall take all necessary actions to remove such designee from the Board; and (h) so long as CPK owns at least 15% of the Then Outstanding Shares immediately prior to a Transfer of its shares, if CPK Transfers at least 15% of the Then Outstanding Shares to a single transferee, that the number of directors constituting the Board of Directors is increased to a sufficient number so that such transferee can elect one board member pursuant to the Series A Purchase Agreement, the shares of Series B Preferred Stock issued pursuant to the Series B Purchase Agreement, the shares of Series C Preferred Stock issued pursuant to the Series C Purchase Agreement and issued or issuable upon exercise of the Series C Warrants, the shares of Series D Preferred Stock issued pursuant to the Series D Purchase Agreement and issued or issuable upon exercise of the H&Q Series D Warrants, the shares of Series E Preferred Stock issued pursuant to the Purchase Agreement, and, unless the context requires otherwise, the shares of Common Stock issued or issuable upon the conversion of such shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock are referred to in this Agreement as the "Sharescumulative voting procedures imposed by California law." For so long as at least 200,000 Shares are outstanding, the Purchasers and the Common Stockholders agree that in any election of directors of the Company, they shall vote all shares of capital stock of the Company owned or controlled by them, including all Shares, to elect a Board of Directors comprising not less than eight nor more than eleven directors designated as follows: (i) five directors shall be designated by the holders of a majority of the Shares (each a "Purchaser Director"); provided, that one Purchaser -------- Director may be designated by Austin Ventures for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Xxxxxxxx-Xxxxx for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Scripps for so long as it holds at least 100,000 Shares, one Purchaser Director may be designated by Oak for so long as it holds at least 100,000 Shares, and one Purchaser Director may be designated by Global for so long as it holds at least 100,000 Shares; and