Earthlink 2015 Annual Report Download - page 29

Table of Contents
in our stock price may adversely affect our ability to retain key employees, many of whom have been granted stock incentive awards.
Provisions of our certificate of incorporation, bylaws and other elements of our capital structure could limit our share price and delay a change of control of
the company.
Our certificate of incorporation and bylaws contain provisions that could make it more difficult or even prevent a third party from acquiring us without the
approval of our incumbent Board of Directors. These provisions, among other things, limit the right of stockholders to call special meetings of stockholders and
authorize the Board of Directors to issue preferred stock in one or more series without any action on the part of stockholders. These provisions could limit the price
that investors might be willing to pay in the future for shares of our common stock and significantly impede the ability of the holders of our common stock to
change control of the company. These provisions that inhibit or discourage takeover attempts could reduce the market value of our common stock.
Our bylaws designate the Court of Chancery of the State of Delaware as the sole and exclusive forum for certain types of actions and proceedings that may be
initiated by our stockholders, which could limit our stockholders’ flexibility in obtaining a judicial forum for disputes with us or our directors, officers or
employees.
Our bylaws provide that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware will be the sole and
exclusive forum for (i) any derivative action or proceeding brought on our behalf, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of our
current or former directors, officers or other employees or agents to us or our stockholders, (iii) any action asserting a claim against us or any of our directors or
officers or other employees arising pursuant to any provision of the Delaware General Corporation Law or the Certificate of Incorporation or Bylaws (as either may
be amended from time to time), or (iv) any action asserting a claim against us or any of our current or former directors or officers or other employee or agent of
ours governed by the internal affairs doctrine. In the event that the Court of Chancery of the State of Delaware lacks jurisdiction over any action or proceeding
described above, the sole and exclusive forum for such action or proceeding will be another state or federal court located within the State of Delaware. These
exclusive forum provisions may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers
or other employees or agents, which may discourage such lawsuits against us and our directors, officers, employees or agents. Alternatively, if a court were to find
these provisions of our bylaws inapplicable to, or unenforceable in respect of, one or more of the specified types of actions or proceedings, we may incur additional
costs associated with resolving such matters in other jurisdictions, which could adversely affect our business and financial condition.
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