Earthlink 2014 Annual Report Download - page 127

Chief Executive Officer to whom such responsibility was delegated, that the Participant committed the conduct
set forth above in clauses (1) or (2) of this definition and specifying the particulars of that finding in detail.
(h)
“ Change in Control ” means the occurrence of any of the following events:
(1)
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 Exchange Act) of more than fifty percent (50%) of
the combined voting power of HoldCo'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
HoldCo's voting stock results from any acquisition of voting stock (i) directly from HoldCo that is approved by the
Incumbent Board, (ii) by HoldCo, (iii) by any employee benefit plan (or related trust) sponsored or maintained by
HoldCo or any of its Affiliates, or (iv) by any Person pursuant to a merger, consolidation or reorganization (a "Business
Combination") that would not cause a Change in Control under subsections (2), (3) or (4) below; or
(2)
Consummation of a Business Combination, unless, immediately following that Business
Combination, (i) all or substantially all of the Persons who were the beneficial owners of the voting stock of HoldCo
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 HoldCo or all or
substantially all of HoldCo'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 HoldCo, 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 a right to dilute either of such percentages by appointing additional members to the Board
of Directors or otherwise without election or other action by the shareholders; or
(3)
A sale or other disposition of all or substantially all of the assets of HoldCo, except pursuant to a
Business Combination that would not cause a Change in Control under subsections (2) above or (4) below; or
(4)
Approval by the shareholders of HoldCo of a complete liquidation or dissolution of HoldCo, except
pursuant to a Business Combination that would not cause a Change in Control under subsections (2) and (3) above; or
(5)
The acquisition by any Person, directly or indirectly, of the power to direct or cause the direction of
the management and policies of HoldCo (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 that a Change in Control will
not be deemed to have occurred if such power was acquired (x) directly from HoldCo in a transaction approved by the
Incumbent Board, (y) by an employee benefit plan (or related trust) sponsored or maintained by HoldCo or any of its
Affiliates or (z) by any person pursuant to a Business Combination that would not cause a Change in Control under
subsections (2), (3) or (4) above.
(i)
“ Code ” means the Internal Revenue Code of 1986, amended, and any successor thereto.
(j)
“ Committee ”
means the Leadership & Compensation Committee of the Board of Directors of HoldCo, or
the Board of Directors of HoldCo itself, if no such Leadership & Compensation Committee exists.
(k)
“ Eligible Employee ” means any full-
time common law employee of HoldCo or an Affiliate who (i) is
either an executive officer of the Company or an Affiliate or serving in another key position of the Company or an
Affiliate which the Committee, in its sole discretion, determines warrants eligibility in the Plan, and (ii) is not a
participant in, or entitled to any other payments or benefits under, any other change in control or severance plan of the
Company or any Affiliate and is not a party to an employment or other agreement with the Company or any Affiliate
which provides for any change in control or severance benefits (not counting for this purpose any separate option or
restricted stock unit agreement that may provide for accelerated vesting in connection with a change in control or