Earthlink 2000 Annual Report Download - page 104

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identified under (i), (ii) and (iii) above to the extent that such consequence occurs as a result of a material breach or violation by any Affiliated
Equity Holder of the Governance Agreement; and (c) the execution by the Corporation of a definitive agreement with respect to a Business
Combination, which agreement is consistent with the requirements of Section 4.02 of the Governance Agreement, shall not be a Discriminatory
Transaction.
(ix) "Dividend Accrual Date" shall mean each March 5, June 5, September 5 and December 5 after the Issue Date, beginning on March 5, 2000
and ending pursuant to the terms of this Certificate of Designation.
(x) "Dividend Payment Date" shall mean with respect to dividends under Section 3(a)(i), the Dividend Accrual Date, and with respect to
dividends under Section 3(a)(ii), the date established by the Board of Directors for the payment of all or part of the accrued dividends on the
Series B Preferred Stock.
(xi) "Equity Security" and "Equity Securities" means (i) any Common Stock, (ii) any debt or equity securities of the Corporation convertible
into or exchangeable for Common Stock or other Equity Securities of the Corporation that grant the right to vote generally in the election of
directors ("Voting Equity Securities"), (iii) any options, rights or warrants (or any other similar securities) issued by the Corporation to acquire
Common Stock or other Voting Equity Securities or (iv) any security issuable in connection with any stock split, stock dividend,
recapitalization or other similar transaction in which securities are issued on a proportionate basis to all holders of a class of Equity Securities.
(xii) "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended and in effect on the Issue Date.
(xiii) "Fair Market Value" means the amount which a willing buyer would pay a willing seller in an arm's-length transaction.
(xiv) "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the regulations promulgated thereunder.
(xv) "Issue Date" shall mean, with respect to each issuance of Series B Preferred Stock, each date of original issuance of such stock.
(xvi) "Person" means any individual, firm, corporation, partnership, limited liability company or other entity, and shall include any successor
(by merger or otherwise) of such entity.
(xvii) "Purchase Consideration" means, with respect to each issuance of Series B Preferred Stock, the per share amount of consideration that
the Corporation received for each such issuance of Series B Preferred Stock.
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