Common use of Right to Elect Directors Clause in Contracts

Right to Elect Directors. Whenever dividends that have become due and payable in cash under Section 3 on the Series A Preferred Stock are in arrears, or the Redemption Price (whether mandatory or optional) has not been paid in full when due, or an Event of Default (as hereinafter defined), has occurred (A) the number of members of the Board of Directors of the corporation shall be increased by two, effective as of the time of election of such directors as hereinafter provided, and (B) the holders of the Series A Preferred Stock (voting separately as a class) shall have the exclusive right (the "DEFAULT RIGHT") to vote for and elect such two additional directors of the corporation at any meeting of stockholders of the corporation at which directors are to be elected held during the period such dividends remain in arrears or such redemption price has not been paid in full. The holders of the Series A Preferred Stock shall have this Default Right until (x) payment in full of all accrued and unpaid dividends on the Series A Preferred Stock has been made, (y) payment in full of any Redemption Price which has become due has been made or (z) the date on which such Event of Default has ceased to be continuing. An "EVENT OF Default" shall be deemed to occur if: (i) a default occurs under any bond, debenture, note or other evidence of indebtedness, whether or not contingent, for borrowed money ("INDEBTEDNESS") by the corporation or any Restricted Subsidiary (as defined in the Indenture dated as of June 28, 1996, as amended, relating to the corporation's 12% Senior Subordinated Notes due 2006, the "INDENTURE"), which default has resulted in such at least $5.0 million aggregate principal amount of Indebtedness becoming or being declared payable prior to the date on which it would otherwise have been due and payable, without such Indebtedness having been discharged, such acceleration having been rescinded or annulled or there having been deposited in trust a sum of money sufficient to discharge in full such Indebtedness; or (ii) the corporation or any of its Subsidiaries (as defined in the Indenture) fails to pay any principal or interest when due with respect to any Indebtedness for money borrowed (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure continues after the applicable grace period, if any, specified in the agreement or instrument evidencing or governing such Indebtedness, has expired, and the amount of such Indebtedness, together with any interest or premium thereon, exceeds $5.0 million).

Right to Elect Directors. Whenever At any time that full dividends that have become due and payable in cash under Section 3 on the Series A Preferred Stock are in arrears, Shares shall not have been paid (i) for four (4) or the Redemption Price more Dividend Periods (whether mandatory or optionalnot consecutive) has not been paid or (ii) for one (1) Dividend Period following the payment in full when due, or an Event of Default dividends on the Series A Preferred Shares for twelve (as hereinafter defined12) consecutive Dividend Periods (a “Preferred Dividend Cure”) after the occurrence of the circumstances described in clause (i) above (each a “Preferred Dividend Default”), has occurred (A) the number of members of directors then constituting the Board of Directors of the corporation shall Corporation will be increased by two, effective as of the time of election of such directors as hereinafter provided, and (B) the holders of the Series A Preferred Stock (Shares, voting separately as a class) shall have single class together with the exclusive right (holders of each other series of Preferred Stock then entitled by the "DEFAULT RIGHT") terms of such Preferred Stock to vote for and additional directors (the “Parity Voting Preferred Stock”), will be entitled to elect such two additional directors (each a “Preferred Director”) to serve on the Corporation’s Board of Directors at a special meeting called by the holders of at least 10% of the corporation at then outstanding Series A Preferred Shares (or the holders of any other Parity Voting Preferred Stock); provided, however, if such request is received within 90 days of the day fixed for the next annual meeting of stockholders stockholders, then the holders of the corporation Preferred Stock shall elect the Preferred Directors at which directors are such scheduled annual meeting. Upon a Preferred Dividend Cure following the most recent Preferred Dividend Default, the holders of Series A Preferred Shares shall be divested of the voting rights set forth above and the term of office of the Preferred Stock Directors elected as provided above shall terminate (subject to revesting in the event of each and every Preferred Dividend Default). Any Preferred Director may be elected held during removed by, and shall not be removed except by, the period such dividends remain in arrears vote of the holders of record of the outstanding Series A Preferred Shares entitled to vote, voting together as a single class with the holders of all other series of Parity Voting Preferred Stock, at a meeting of the Corporation’s stockholders, or such redemption price has not been paid in full. The of the holders of the Series A Preferred Shares and all other series of Preferred Stock shall have this Default Right until (x) payment in full of all accrued and unpaid so entitled to vote thereon, called for that purpose. As long as dividends on the Series A Preferred Stock has Shares shall not have been madepaid for the preceding quarterly Dividend Period, (yi) payment any vacancy in full the office of any Redemption Price which has become due has been made or Preferred Director may be filled (zexcept as provided in the following clause (ii)) by an instrument in writing signed by the date remaining Preferred Director and filed with the Corporation, and (ii) in the case of the removal of any Preferred Director, the vacancy may be filled by the vote of the holders of the outstanding Series A Preferred Shares entitled to vote, voting together as a single class with the holders of all other series of Preferred Stock entitled to vote on the matter, at the same meeting at which such Event of Default has ceased removal shall be voted. Each director appointed as aforesaid by the remaining Preferred Director shall be deemed, for all purposes hereof, to be continuinga Preferred Director. An "EVENT OF Default" shall Any Preferred Director will be deemed to occur if: (ibe an Independent Director for purposes of the actions set forth in Section 8(b) requiring the approval of a default occurs under any bond, debenture, note or other evidence majority of indebtedness, whether or not contingent, for borrowed money ("INDEBTEDNESS") by the corporation or any Restricted Subsidiary (as defined in the Indenture dated as of June 28, 1996, as amended, relating to the corporation's 12% Senior Subordinated Notes due 2006, the "INDENTURE"), which default has resulted in such at least $5.0 million aggregate principal amount of Indebtedness becoming or being declared payable prior to the date on which it would otherwise have been due and payable, without such Indebtedness having been discharged, such acceleration having been rescinded or annulled or there having been deposited in trust a sum of money sufficient to discharge in full such Indebtedness; or (ii) the corporation or any of its Subsidiaries (as defined in the Indenture) fails to pay any principal or interest when due with respect to any Indebtedness for money borrowed (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure continues after the applicable grace period, if any, specified in the agreement or instrument evidencing or governing such Indebtedness, has expired, and the amount of such Indebtedness, together with any interest or premium thereon, exceeds $5.0 million)Independent Directors.

Right to Elect Directors. Whenever dividends that have become due and payable in cash under Section 3 on (i) For so long as the Series A Preferred Stock Investors who are in arrears, or affiliates of Softbank (the Redemption Price (whether mandatory or optional"Softbank Investors") has not been paid in full when due, or an Event of Default (as hereinafter defined), has occurred (A) the number of members of the Board of Directors of the corporation shall be increased by two, effective as of the time of election of such directors as hereinafter provided, and (B) the holders hold a majority of the Series A Preferred originally ------------------ purchased pursuant to their respective Subscription Agreements or the shares of Class A Stock (voting separately into which such Series A Preferred are convertible, the Softbank Investors will be entitled to nominate, and the Company and the directors of the Company shall use their best efforts to secure the election of, a person to serve as a class) director of the Company (the "Softbank Director"). The Softbank ----------------- Director shall have the exclusive right to serve on the Company's Compensation Committee or Audit Committee. Once the Softbank Investors no longer hold any of the shares of Series A Preferred originally purchased pursuant to their respective Subscription Agreements, they shall use their best efforts to secure the immediate resignation of the Softbank Director. At any time from the Closing until three business days before such time as the Company prints a preliminary prospectus or "red xxxxxxx" in connection with a Qualifying Public Offering, the Softbank Investors may in lieu of electing such Softbank Director select a second representative of the Softbank Investors to attend all meetings of the Company's board in a nonvoting observer capacity pursuant to Section 4(i) hereof. Such right of the Softbank Investors shall be without prejudice to the right of the Softbank Investors to nominate such Softbank Director at any time thereafter pursuant to this Section 4(d). (ii) For so long as GE Capital Equity Investments Inc., its affiliates or beneficial owners (collectively, the "DEFAULT RIGHTGE Investors") to vote for and elect such two additional directors of the corporation at any meeting of stockholders of the corporation at which directors are to be elected held during the period such dividends remain in arrears or such redemption price has not been paid in full. The holders hold a ------------ majority of the Series A Preferred originally purchased pursuant to their respective Subscription Agreements or the shares of Class A Stock into which such Series A Preferred are convertible, the GE Investors will be entitled to nominate, and the Company and the directors of the Company shall use their best efforts to secure the election of, a person to serve as a director of the Company (the "GE Director"). The GE Director shall have this Default Right until (x) payment in full the right to serve on ----------- either the Company's Compensation Committee or Audit Committee; provided, however, that such right shall only apply to the committee upon which the Softbank Director shall choose not to serve. Once the GE Investors no longer hold any of all accrued and unpaid dividends on the Series A Preferred Stock has been madeoriginally purchased pursuant to their respective Subscription Agreements, (ythey shall use their best efforts to secure the immediate resignation of the GE Director. At any time from the Closing until three business days before such time as the Company prints a preliminary prospectus or "red xxxxxxx" in connection with a Qualifying Public Offering, the GE Investors may in lieu of electing such GE Director select a second representative of the GE Investors to attend all meetings of the Company's board in a nonvoting observer capacity pursuant to Section 4(i) payment in full hereof. Such right of any Redemption Price which has become due has been made or (z) the date on which such Event of Default has ceased to be continuing. An "EVENT OF Default" GE Investors shall be deemed to occur if: (i) a default occurs under any bond, debenture, note or other evidence of indebtedness, whether or not contingent, for borrowed money ("INDEBTEDNESS") by the corporation or any Restricted Subsidiary (as defined in the Indenture dated as of June 28, 1996, as amended, relating without prejudice to the corporation's 12% Senior Subordinated Notes due 2006, right of the "INDENTURE"), which default has resulted in GE Investors to nominate such GE Director at least $5.0 million aggregate principal amount of Indebtedness becoming or being declared payable prior any time thereafter pursuant to the date on which it would otherwise have been due and payable, without such Indebtedness having been discharged, such acceleration having been rescinded or annulled or there having been deposited in trust a sum of money sufficient to discharge in full such Indebtedness; or (ii) the corporation or any of its Subsidiaries (as defined in the Indenture) fails to pay any principal or interest when due with respect to any Indebtedness for money borrowed (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure continues after the applicable grace period, if any, specified in the agreement or instrument evidencing or governing such Indebtedness, has expired, and the amount of such Indebtedness, together with any interest or premium thereon, exceeds $5.0 millionthis Section 4(d).

Right to Elect Directors. Whenever dividends that have become due and payable in cash under Section 3 on (i) For so long as the Series A Preferred Stock Investors who are in arrears, or affiliates of Softbank (the Redemption Price (whether mandatory or optional"Softbank Investors") has not been paid in full when due, or an Event of Default (as hereinafter defined), has occurred (A) the number of members of the Board of Directors of the corporation shall be increased by two, effective as of the time of election of such directors as hereinafter provided, and (B) the holders hold a majority of the Series A Preferred ------------------ originally purchased pursuant to their respective Subscription Agreements or the shares of Class A Stock (voting separately into which such Series A Preferred are convertible, the Softbank Investors will be entitled to nominate, and the Company and the directors of the Company shall use their best efforts to secure the election of, a person to serve as a class) director of the Company (the "Softbank Director"). The Softbank Director shall have the exclusive right to serve ----------------- on the Company's Compensation Committee or Audit Committee. Once the Softbank Investors no longer hold any of the shares of Series A Preferred originally purchased pursuant to their respective Subscription Agreements, they shall use their best efforts to secure the immediate resignation of the Softbank Director. From the Closing until the earlier to occur of either (1) 45 days from the Closing or (2) three business days before such time as the Company prints a preliminary prospectus or "red xxxxxxx" in connection with a Qualifying Public Offering, the Softbank Investors may choose to have a second observer pursuant to Section 4(i) hereof in lieu of causing the election of the Softbank Director as provided herein. (ii) For so long as GE Capital Equity Investments Inc., its affiliates or beneficial owners (collectively, the "DEFAULT RIGHTGE Investors") to vote for and elect such two additional directors of the corporation at any meeting of stockholders of the corporation at which directors are to be elected held during the period such dividends remain in arrears or such redemption price has not been paid in full. The holders hold a ------------ majority of the Series A Preferred originally purchased pursuant to their respective Subscription Agreements or the shares of Class A Stock into which such Series A Preferred are convertible, the GE Investors will be entitled to nominate, and the Company and the directors of the Company shall use their best efforts to secure the election of, a person to serve as a director of the Company (the "GE Director"). The GE Director shall ----------- have this Default Right until (x) payment in full the right to serve on either the Company's Compensation Committee or Audit Committee; provided, however, that such right shall only apply to the committee upon which the Softbank Director shall choose not to serve. Once the GE Investors no longer hold any of all accrued and unpaid dividends on the Series A Preferred Stock has been madeoriginally purchased pursuant to their respective Subscription Agreements, they shall use their best efforts to secure the immediate resignation of the GE Director. From the Closing until the earlier to occur of either (y1) payment in full of any Redemption Price which has become due has been made 45 days from the Closing or (z2) three business days before such time as the date on which such Event of Default has ceased to be continuing. An Company prints a preliminary prospectus or "EVENT OF Defaultred xxxxxxx" shall be deemed to occur if: (i) in connection with a default occurs under any bond, debenture, note or other evidence of indebtedness, whether or not contingent, for borrowed money ("INDEBTEDNESS") by the corporation or any Restricted Subsidiary (as defined in the Indenture dated as of June 28, 1996, as amended, relating to the corporation's 12% Senior Subordinated Notes due 2006Qualifying Public Offering, the "INDENTURE"), which default has resulted GE Investors may choose to have a second observer pursuant to Section 4(i) hereof in such at least $5.0 million aggregate principal amount lieu of Indebtedness becoming or being declared payable prior to causing the date on which it would otherwise have been due and payable, without such Indebtedness having been discharged, such acceleration having been rescinded or annulled or there having been deposited in trust a sum election of money sufficient to discharge in full such Indebtedness; or (ii) the corporation or any of its Subsidiaries (GE Director as defined in the Indenture) fails to pay any principal or interest when due with respect to any Indebtedness for money borrowed (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise) and such failure continues after the applicable grace period, if any, specified in the agreement or instrument evidencing or governing such Indebtedness, has expired, and the amount of such Indebtedness, together with any interest or premium thereon, exceeds $5.0 million)provided herein.