Earthlink 2008 Annual Report Download - page 191

(a)
the accumulation in any number of related or unrelated transactions by any person of beneficial ownership (as such
term is used in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) of more than fifty percent (50%) of the
combined voting power of the Company’s voting stock; provided that, for purposes of this subsection (a), a Change in Control will not be
deemed to have occurred if the accumulation of more than fifty percent (50%) of the voting power of the Company’s voting stock results from
any acquisition of voting stock (i) directly from the Company that is approved by the Incumbent Board, (ii) by the Company, (ii) by any
employee benefit plan (or related trust) sponsored or maintained by the Company or any Employer, or (iv) by any person pursuant to a merger,
consolidation, or reorganization (a “Business Combination”) that would not cause a Change in Control under clauses (i) and (ii) of subsection
(b) below; or
(b)
consummation of a Business Combination, unless, immediately following that Business Combination, (i) all or
substantially all of the persons who are the beneficial owners of voting stock of the Company immediately prior to that Business Combination
beneficially own, directly or indirectly, at least fifty percent (50%) of the then outstanding shares of common stock and at least fifty percent
(50%) of the combined voting power of the then outstanding voting stock entitled to vote generally in the election of directors of the entity
resulting from that Business Combination (including, without limitation, an entity that as a result of that transaction owns the Company or all or
substantially all of the Company’s assets either directly or through one or more subsidiaries), in substantially the same proportions relative to
each other as their ownership, immediately prior to that Business Combination, of the voting stock of the Company, and (ii) at least sixty percent
(60%) of the members of the Board of Directors of the entity resulting from that Business Combination holding at least sixty percent (60%) of
the voting power of such Board of Directors were members of the Incumbent Board at the time of the execution of the initial agreement or of the
action of the Board of Directors providing for that Business Combination and, as a result of or in connection with such Business Combination,
no person has the right to dilute either such percentages by appointing additional members to the Board of Directors or otherwise without
election or action by the shareholders; or
(c)
a sale or other disposition of all or substantially all the assets of the Company, except pursuant to a Business
Combination that would not cause a Change in Control under clauses (i) and (ii) of subsection (b) above, or
(d)
approval by the shareholders of the Company of a complete liquidation or dissolution of the Company, except
pursuant to a Business Combination that would not cause a Change in Control under clauses (i) and (ii) of subsection (b) above; or
(e) the acquisition by any person, directly or indirectly, of the power to direct or cause the direction of the management
and policies of the Company (i) through the ownership of securities which provide the holder with such power, excluding voting rights attendant
with such securities, or (ii) by contract; provided the Change in Control will not be deemed to have occurred if such power was acquired
(x) directly from the Company in a transaction approved by the Incumbent Board, (y) by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any Employer or (z) by any person pursuant to a Business Combination that would not cause a Change in
Control under clauses (i) and (ii) of subsection (b) above.
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