Earthlink 2007 Annual Report Download - page 122

1.2
Additional Definitions.
For purposes of this Second Amendment and the Agreement, as amended, the following terms shall have
the meanings set forth beside them in this Section 1.1:
"Change of Control Date"
means the date on which a Change of Control occurs. If any such Change of Control occurs on account
of a series of transactions, the "Change of Control Date" is the date of the last of such transactions.
"Continuing Director" means any member of the Board whose nomination for or election to the Board was recommended or
approved by the Initial Members or a majority of the Continuing Directors.
"Management Company Acquiring Person" means that a Person, considered alone or as part of a "group" within the meaning of
Section 13(d)(3) of the Exchange Act, as amended, other than an Initial Member (as identified in the definition of Member) or any
Affiliate, is or becomes directly or indirectly the beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of securities
representing more than fifty percent (50%) of the Management Company's then outstanding securities entitled to vote generally in the
election of the Board.
"Management Company Change in Control" means (i) a Person, other than an Initial Member, is or becomes a Management
Company Acquiring Person; (ii) holders of the securities of the Management Company entitled to vote thereon approve any agreement
with a Person, other than an Initial Member or any Affiliate, (or, if such approval is not required by applicable law and is not solicited by
the Management Company, the closing of such an agreement) that involves the transfer of all or substantially all of the Management
Company's assets on a consolidated basis; (iii) holders of the securities of the Management Company entitled to vote thereon approve a
transaction (or, if such approval is not required by applicable law and is not solicited by the Management Company, the closing of such a
transaction) pursuant to which the Management Company will undergo a merger, consolidation, statutory share exchange or similar event
with a Person, other than an Initial Member of any Affiliate, regardless of whether the Management Company is intended to be the
surviving or resulting entity after the merger, consolidation, statutory share exchange or similar event, other than a transaction that results
in the voting securities of the Management Company carrying the right to vote in elections of persons to the Board outstanding
immediately prior to the closing of the transaction continuing to represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than 50% (fifty percent) of the Management Company's voting securities carrying the right
to vote in elections of persons to the Management Company's Board, or voting securities of such surviving entity carrying the right to
vote in elections of persons to the Board of Directors or similar authority of such surviving entity, outstanding immediately after the
closing of such transaction; (iv) the Continuing Directors cease for any reason to constitute at least half of the number of members of the
Board; (v) holders of the securities of the Management Company entitled to vote thereon approve a plan of complete liquidation of the
Management Company or an agreement for the liquidation by the Management Company of all or substantially all of the Management
Company's assets (or, if such approval is not required by applicable law and is not solicited by the Management Company, the
commencement of actions constituting such a plan or the closing of such an agreement); or (vi) the Board adopts a resolution to the effect
that, in its judgment, as a consequence of any one or more transactions or events or series of transactions or events, a change in control of
the Management Company has effectively occurred. Notwithstanding the foregoing, no event resulting from an initial public offering of
securities of the Management Company shall constitute a Management Company Change in Control. The Board shall be entitled to
exercise its sole and absolute discretion in exercising its judgment and in the adoption of such resolution, whether or not any such
transaction(s) or event(s) might be deemed, individually or collectively, to satisfy any of the criteria set forth in subparagraphs (i) through
(v) above.
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