Earthlink 2007 Annual Report Download - page 129

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.
"Operating 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 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
Operating Company's then outstanding Membership Units.
"Operating Company Change in Control" means (i) a Person, other than an Initial Member, is or becomes an Operating
Company Acquiring Person; (ii) holders of the Membership Units of the Operating 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 Operating Company, the closing of such an agreement) that involves the transfer of all or substantially all of the
Operating Company's assets on a consolidated basis; (iii) holders of the Membership Units of the Operating Company entitled to vote
thereon approve a transaction (or, if such approval is not required by applicable law and is not solicited by the Operating Company, the
closing of such a transaction) pursuant to which the Operating Company will undergo a merger, consolidation, statutory share exchange
or similar event with a Person, other than an Initial Member or any Affiliate, regardless of whether the Operating 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 Membership Units of the Operating Company 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 Operating Company's Membership Units, 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) holders of the Membership Units of the Operating Company approve a plan
3