Common use of Right to Maintain Clause in Contracts

Right to Maintain. During the Right to Maintain Period: (a) The Company shall provide the Investor the opportunity to purchase in any Offering up to its Pro Rata Share; provided, however, in no event shall the Investor be entitled to purchase an amount of Equity Securities in any such Offering that would cause Section 3.2 to be violated. (b) No later than fifteen (15) Business Days prior to the anticipated consummation of an Offering, the Company shall send a written notice (the “Offering Notice”) to the Investor, indicating the material terms and conditions of the proposed Offering, including, without limitation, (i) the number and type of Equity Securities expected to be offered or sold and the material terms of such Equity Securities, (ii) the expected price at which it proposes to offer or sell such Equity Securities, or the expected formula for determining such price, (iii) the expected timing of the Offering, and (iv) the name, telephone and facsimile number or e-mail address of the Person at the Company to whom the Investor should deliver a Response Notice (as defined below). If, prior to the consummation of the Offering, the terms and conditions of the proposed Offering change, with the result that the price will be less than the minimum price set forth in the Offering Notice or the other principal terms and conditions will be materially more favorable to potential subscribers in the Offering than those set forth in the Offering Notice, it will be necessary for a separate Offering Notice to be furnished, and the terms and provisions of this Section 3.1 separately complied with, in order to consummate the Offering pursuant to this Section 3.1. (c) The Investor shall have the right, by providing written notice to the Company no later than five (5) Business Days prior to the anticipated consummation of an Offering and indicating the name, telephone number, facsimile number or e-mail address of the Person or Persons that the underwriter(s) of the Offering should call to coordinate with respect to any sales to the Investor, to either (i) purchase Equity Securities up to its Pro Rata Share in the Offering upon the terms and conditions specified in the Offering Notice and upon the same terms and conditions applicable to all other participants in such proposed Offering, or (ii) waive its right to so purchase Equity Securities up to its Pro Rata Share in the Offering (in either case, a “Response Notice”). If the Investor or a Permitted Transferee shall fail to provide the Company with a Response Notice no later than five (5) Business Days prior to the date of the expected Offering as set forth in the Offering Notice, then the Investor shall not be entitled to purchase Equity Securities in the Offering. In any event, it shall be a condition to the Investor’s or a Permitted Transferee’s opportunity to purchase Equity Securities in an Offering that it comply with the reasonable requests of the underwriter(s) necessary for it to purchase shares in the Offering (e.g., establishing an account with an underwriter in the Offering). The election by the Investor not to exercise its rights to purchase up to its Pro Rata Share in, or failure to deliver a Response Notice with respect to, any Offering shall not affect its rights as to future Offerings pursuant to this Section 3.1. In the event that the Company has not sold the Equity Securities within sixty (60) calendar days after the date of the expected Offering as set forth in the Offering Notice, then the Company shall not thereafter issue or sell the Equity Securities without again first complying with the provisions of this Section 3.1 and offering the Investor the right to purchase its Pro Rata Share thereof. (d) For the avoidance of doubt, under no circumstances shall any pledgee of any Common Stock or any Transferee from such pledgee be deemed an Investor for purposes of this Section 3.1, and no such pledgee or Transferee shall have any rights under this Section 3.1.

Right to Maintain. During the Right to Maintain Period: (a) The Company shall provide the Investor the opportunity to purchase in any Offering up to its Pro Rata Share; provided, however, in no event shall the Investor be entitled to purchase an amount of Equity Securities in any such Offering that would cause Section 3.2 to be violated. (b) No later than fifteen (15) Business Days prior to the anticipated consummation of an Offering, the Company shall send a written notice (the “Offering Notice”) to the Investor, indicating the material terms and conditions of the proposed Offering, including, without limitation, (i) the number and type of Equity Securities expected to be offered or sold and the material terms of such Equity Securities, (ii) the expected price at which it proposes to offer or sell such Equity Securities, or the expected formula for determining such price, (iii) the expected timing of the Offering, and (iv) the name, telephone and facsimile number or e-mail address of the Person at the Company to whom the Investor should deliver a Response Notice (as defined below). If, prior to the consummation of the Offering, the terms and conditions of the proposed Offering change, with the result that the price will be less than the minimum price set forth in the Offering Notice or the other principal terms and conditions will be materially more favorable to potential subscribers in the Offering than those set forth in the Offering Notice, it will be necessary for a separate Offering Notice to be furnished, and the terms and provisions of this Section 3.1 separately complied with, in order to consummate the Offering pursuant to this Section 3.1. (c) The Investor shall have the right, by providing written notice to the Company no later than five (5) Business Days prior to the anticipated consummation of an Offering and indicating the name, telephone number, facsimile number or e-mail address of the Person or Persons that the underwriter(s) of the Offering should call to coordinate with respect to any sales to the Investor, to either (i) purchase Equity Securities up to its Pro Rata Share in the Offering upon the terms and conditions specified in the Offering Notice and upon the same terms and conditions applicable to all other participants in such proposed Offering, or (ii) waive its right to so purchase Equity Securities up to its Pro Rata Share in the Offering (in either case, a “Response Notice”). If the Investor or a Permitted Transferee shall fail to provide the Company with a Response Notice no later than five (5) Business Days prior to the date of the expected Offering as set forth in the Offering Notice, then the Investor shall not be entitled to purchase Equity Securities in the Offering. In any event, it shall be a condition to the Investor’s or a Permitted Transferee’s opportunity to purchase Equity Securities in an Offering that it comply with the reasonable requests of the underwriter(s) necessary for it to purchase shares in the Offering (e.g., establishing an account with an underwriter in the Offering). The election by the Investor not to exercise its rights to purchase up to its Pro Rata Share in, or failure to deliver a Response Notice with respect to, any Offering shall not affect its rights as to future Offerings pursuant to this Section 3.1. In the event that the Company has not sold the Equity Securities within sixty (60) calendar days after the date of the expected Offering as set forth in the Offering Notice, then the Company shall not thereafter issue or sell the Equity Securities without again first complying with the provisions of this Section 3.1 and offering the Investor the right to purchase its Pro Rata Share thereof. (d) For the avoidance of doubt, under no circumstances shall any pledgee of any Common Stock or any Transferee from such pledgee be deemed an Investor for purposes of this Section 3.1, and no such pledgee or Transferee shall have any rights under this Section 3.1.

Right to Maintain. During the Right to Maintain Period: (a) The Company In the event that Sprint, shall provide exercise its rights (the Investor the opportunity "SPRINT TOP-UP RIGHTS") to purchase in any Offering up capital stock of the Company pursuant to its Pro Rata Sharerights under Section 3.01 of the Governance Agreement, with respect to the issuance of capital stock of the Company to Purchaser, and/or with respect to the merger of the Company and Mindspring Enterprises, Inc. with WWW Holdings, Inc. (the "COMPANY MERGER") pursuant to the Agreement and Plan of Reorganization dated September 22, 1999, by and among the Company, Mindspring Enterprises, Inc. and WWW Holdings, Inc., Purchaser shall have the right to purchase (a "PURCHASER TOP-UP"), at a per share purchase price equal to the lesser of (i) the average of the closing prices of the Company Common Stock on the Nasdaq National Market (or the principal or market on which the Company Common Stock is then listed or quoted) for the ten (10) trading days preceding the date of closing of the exercise of such Purchaser Top-Up, or (ii) the per share price paid by Sprint in connection with the most recent exercise of its Sprint Top-Up Rights, an additional number of shares (the "TOP-UP SHARES") of Preferred Stock of the Company such that following such purchase Purchaser will beneficially own the same percentage of the fully-diluted capital stock of the Company as Purchaser owned prior to the exercise of such Sprint Top-Up Rights by Sprint; provided, howeverprovided that, in no the event shall the Investor be entitled Purchaser fails to elect to purchase an amount such shares to which it is entitled pursuant to this Section 6.1 1. The closing of Equity Securities in any such Offering that would cause purchase shall take place at a time and location mutually agreed to by Purchaser and the Company which shall be no less than 2 days or greater than 5 days from the date of such election. Any shares of Preferred Stock of the Company acquired by Purchaser pursuant to this Section 3.2 to 6.1 shall be violateddeemed "Preferred Stock" for purposes of this Agreement. (b) No later than fifteen (15Purchaser shall have the right to purchase additional shares in accordance with Section 6.1(a) Business Days prior in response to the anticipated consummation of an Offering, the Company shall send a written notice (the “Offering Notice”) to the Investor, indicating the material terms and conditions exercise by Sprint of the proposed Offering, including, without limitation, Sprint Top-Up Rights in response to Purchaser's purchase of additional shares under Section 6.1(a); provided that the per share price with respect to such additional shares shall equal the lesser of (i) the number and type average of Equity Securities expected to be offered the closing prices of the Company Common Stock on the Nasdaq National Market (or sold and the material terms principal or market on which the Company Common Stock is then listed or quoted) for the ten (10) trading days preceding the date of closing of the exercise of such Equity Securities, (ii) the expected price at which it proposes right to offer or sell such Equity Securities, or the expected formula for determining such price, (iii) the expected timing of the Offering, and (iv) the name, telephone and facsimile number or e-mail address of the Person at the Company to whom the Investor should deliver a Response Notice (as defined below). If, prior to the consummation of the Offering, the terms and conditions of the proposed Offering change, with the result that the price will be less than the minimum price set forth in the Offering Notice or the other principal terms and conditions will be materially more favorable to potential subscribers in the Offering than those set forth in the Offering Notice, it will be necessary for a separate Offering Notice to be furnished, and the terms and provisions of this Section 3.1 separately complied with, in order to consummate the Offering pursuant to this Section 3.1. (c) The Investor shall have the right, by providing written notice to the Company no later than five (5) Business Days prior to the anticipated consummation of an Offering and indicating the name, telephone number, facsimile number or e-mail address of the Person or Persons that the underwriter(s) of the Offering should call to coordinate with respect to any sales to the Investor, to either (i) purchase Equity Securities up to its Pro Rata Share in the Offering upon the terms and conditions specified in the Offering Notice and upon the same terms and conditions applicable to all other participants in such proposed Offeringadditional shares, or (ii) waive the per share price paid by Sprint in connection with the most recent exercise of its right to so purchase Equity Securities up to its Pro Rata Share Sprint Top-Up Rights; provided further, that, in the Offering (in either case, a “Response Notice”). If the Investor or a Permitted Transferee shall fail event Purchaser fails to provide the Company with a Response Notice no later than five (5) Business Days prior to the date of the expected Offering as set forth in the Offering Notice, then the Investor shall not be entitled elect to purchase Equity Securities in the Offering. In any event, such additional shares to which it shall be a condition to the Investor’s or a Permitted Transferee’s opportunity to purchase Equity Securities in an Offering that it comply with the reasonable requests of the underwriter(s) necessary for it to purchase shares in the Offering (e.g., establishing an account with an underwriter in the Offering). The election by the Investor not to exercise its rights to purchase up to its Pro Rata Share in, or failure to deliver a Response Notice with respect to, any Offering shall not affect its rights as to future Offerings is entitled pursuant to this Section 3.1. In 6.1(b) within forty-eight (48) hours of notice of the event that exercise of such responsive Sprint Top-Up Rights, such per share price shall be equal to the average of the closing prices of the Company has not sold Common Stock on the Equity Securities within sixty Nasdaq National Market (60or the principal or market on which the Company Common Stock is then listed or quoted) calendar for the ten (10) trading days after preceding the date of the expected Offering as set forth in the Offering Notice, then the Company shall not thereafter issue or sell the Equity Securities without again first complying with the provisions closing of such purchase. Purchaser may elect to purchase additional shares pursuant to this Section 3.1 and offering 6.1(b) only in response to the Investor first two exercises by Sprint of the right to purchase its Pro Rata Share thereofSprint Top-Up Rights. (d) For the avoidance of doubt, under no circumstances shall any pledgee of any Common Stock or any Transferee from such pledgee be deemed an Investor for purposes of this Section 3.1, and no such pledgee or Transferee shall have any rights under this Section 3.1.

Right to Maintain. During the Right to Maintain Period: (a) The In the event the Company desires to sell and issue any shares of, or securities convertible into or exchangeable or exercisable for any shares of, any class of its capital stock ("New Securities"), then the Company shall provide first notify each Holder of the Investor material terms of the opportunity proposed sale and shall permit each such Holder to acquire, at the time of consummation of such proposed issuance and sale and on such terms as are specified in the Company's notice pursuant hereto, a certain number of the New Securities (such right, the "Right to Maintain"). Each Holder shall have thirty (30) days after the date of such notice to elect by notice to the Company to purchase in any Offering up to its Pro Rata Share; provided, however, in no event shall the Investor be entitled number of such New Securities available to purchase an amount of Equity Securities in any such Offering that would cause them pursuant to Section 3.2 to be violated17(b) below. (b) No later than fifteen (15) Business Days The number of New Securities that each Holder may acquire hereunder shall be determined by calculating such number as would result in such Holder maintaining its voting rights in the Company following such proposed issuance of New Securities, on an as-converted, outstanding percentage basis, at the level held by it immediately prior to the anticipated consummation such issuance of an Offering, the Company shall send a written notice (the “Offering Notice”) New Securities after giving effect to the Investoranti-dilution protections, indicating the material terms and conditions of the proposed Offeringif any, including, without limitation, (i) the number and type of Equity Securities expected to be offered or sold and the material terms of such Equity Securities, (ii) the expected price at which it proposes to offer or sell such Equity Securities, or the expected formula for determining such price, (iii) the expected timing of the Offering, and (iv) the name, telephone and facsimile number or e-mail address of the Person at the Company to whom the Investor should deliver a Response Notice (as defined below). If, prior to the consummation of the Offering, the terms and conditions of the proposed Offering change, with the result that the price will be less than the minimum price set forth in the Offering Notice or Company's Certificate of Incorporation. In addition, each Holder shall have a right of over-allotment such that if any Holder fails to exercise its rights hereunder to purchase the maximum number of New Securities which it is entitled to purchase pursuant to the preceding sentence, the other principal terms and conditions will be materially more favorable Holders may purchase on a proportional basis (determined with respect to potential subscribers in the Offering than those set forth in number of shares which the Offering Notice, it will be necessary for a separate Offering Notice Holders are entitled to be furnished, and the terms and provisions of this Section 3.1 separately complied with, in order to consummate the Offering purchase pursuant to this the preceding sentence) such shortfall number of New Securities by notice to the Company within the thirty day period after the date of the Company notice pursuant to Section 3.117(a) above. (c) The Investor Notwithstanding anything in this Section 17, New Securities shall have the right, by providing written notice not be deemed to include (and no Right to Maintain shall apply to the Company no later than five (5issuance of) Business Days prior to the anticipated consummation of an Offering and indicating the name, telephone number, facsimile number any securities issued or e-mail address of the Person or Persons that the underwriter(s) of the Offering should call to coordinate with respect to any sales to the Investor, to either issuable (i) purchase Equity Securities up to its Pro Rata Share in employees, consultants or directors of the Offering upon the terms and conditions specified in the Offering Notice and upon the same terms and conditions applicable Company pursuant to all other participants in such proposed Offering, or any employee benefit plan; (ii) waive its right to so purchase Equity Securities up to its Pro Rata Share banks, building developers or equipment lessors in connection with commercial credit arrangements, equipment financings or similar transactions provided such issuances are for other than primarily equity financing purposes and are approved by the Board of Directors; (iii) in connection with any stock split, dividend or distribution in respect of the Company's capital stock; (iv) in the Offering IPO; (v) upon conversion of the Shares; or (vi) in either caseconnection with a Sale of the Company, a “Response Notice”). If the Investor business combination, a strategic partnership, a joint venture or a Permitted Transferee shall fail to provide the Company with a Response Notice no later than five (5) Business Days prior to the date of the expected Offering as set forth in the Offering Noticesimilar transaction, then the Investor shall not be entitled to purchase Equity Securities in the Offering. In any event, it shall be a condition to the Investor’s or a Permitted Transferee’s opportunity to purchase Equity Securities in an Offering that it comply with the reasonable requests of the underwriter(s) necessary for it to purchase shares in the Offering (e.g., establishing an account with an underwriter in the Offering). The election approved by the Investor not to exercise its rights to purchase up to its Pro Rata Share in, or failure to deliver a Response Notice with respect to, any Offering shall not affect its rights as to future Offerings pursuant to this Section 3.1. In the event that the Company has not sold the Equity Securities within sixty (60) calendar days after the date Board of the expected Offering as set forth in the Offering Notice, then the Company shall not thereafter issue or sell the Equity Securities without again first complying with the provisions of this Section 3.1 and offering the Investor the right to purchase its Pro Rata Share thereofDirectors. (d) For The Right to Maintain for all parties shall terminate and be of no further force or effect upon the avoidance earlier of doubt, under no circumstances shall any pledgee and with respect to (i) the date of any Common Stock the IPO or any Transferee from such pledgee be deemed an Investor for purposes (ii) the date of this Section 3.1, and no such pledgee or Transferee shall have any rights under this Section 3.1a Sale of the Company.

Right to Maintain. During the Right to Maintain Period: (a) The Company shall provide the Investor Stockholders the opportunity to purchase in any Offering of the type described in clause (ii) of the definition of “Offering” (which is not also of the type described in clause (i) of the definition of “Offering”), and shall use its reasonable best efforts to provide the Investor Stockholders the opportunity to purchase in any Offering of the type described in clause (i) of the definition of “Offering”, up to its their respective Pro Rata ShareShares; provided, however, in no event shall the Investor Stockholders be entitled to purchase an amount of Equity Securities in any such Offering that would cause Section 3.2 4.2 to be violated. (b) No later than fifteen (15) Business Days prior to the anticipated consummation of an Offering, the The Company shall send a written or electronic notice (the “Offering Notice”) in a manner it deems reasonably appropriate under the circumstances (which notice may or may not be in the same manner contemplated by Section 5.9) to Elevation on behalf of the Investor Stockholders at the latest address or e-mail address known to the InvestorCompany, indicating the material terms and conditions of the proposed Offering, including, without limitation, (i) the number and type of Equity Securities expected to be offered or sold and the material terms of such Equity Securities, (ii) the expected price at which it proposes to offer or sell such Equity Securities, or the expected formula for determining such price, (iii) the expected timing of the Offering, and (iv) the name, telephone and facsimile number or e-mail address of the Person at the Company to whom the Investor Stockholders should deliver a Response Notice (as defined below). If, prior to To the consummation of the Offering, the terms and conditions of the proposed Offering change, with the result extent that the price will be less than Company in good faith determines that the minimum price set forth in process for the Offering Notice or the other principal terms and conditions will be materially more favorable to potential subscribers in the Offering than those set forth in the Offering Notice, it will be necessary for a separate Offering Notice to be furnished, and the terms and provisions Investor Stockholders’ exercise of this Section 3.1 separately complied with, in order to consummate the Offering their rights pursuant to this Section 3.14.1 delays or impairs the Company’s ability to access the public markets at will, the Company shall notify the Investor Stockholders, and the Company and the Investor Stockholders will negotiate in good faith to modify such process to the extent practicable so that it no longer causes such delay or impediment (it being understood that no such negotiation shall impair or delay any impending Offering and any Offering may be consummated during such negotiations without giving the Investor Stockholders the right to participate). (c) The As promptly as practicable after its receipt of the Offering Notice, the Investor Stockholders shall have provide the right, by providing Company with written notice indicating its desire to purchase Equity Securities in the Company no later than five (5) Business Days prior to the anticipated consummation of an Offering Offering, and indicating the name, telephone number, facsimile number or e-mail address of the Person or Persons that the underwriter(s) of the Offering should call to coordinate with respect to any sales to such purchaser (the Investor, to either (i) purchase Equity Securities up to its Pro Rata Share in the Offering upon the terms and conditions specified in the Offering Notice and upon the same terms and conditions applicable to all other participants in such proposed Offering, or (ii) waive its right to so purchase Equity Securities up to its Pro Rata Share in the Offering (in either case, a “Response Notice”). If the Investor Stockholders or a Permitted Transferee shall fail to provide the Company with a Response Notice no later than five prior to the earlier to occur of (5i) six hours before the pricing of the Offering, and (ii) one Business Days Day prior to the date of the expected Offering as set forth in the Offering Notice, then the Investor Stockholders shall not be entitled given the opportunity to purchase Equity Securities in the Offering. In any event, it shall be a condition to the Investor’s Investor Stockholders’ or a Permitted Transferee’s opportunity to purchase Equity Securities in an Offering that it comply with the reasonable requests of the underwriter(s) necessary for it to purchase shares in the Offering (e.g., establishing an account with an underwriter in the Offering). The election by rights of the Investor not to exercise its rights to purchase up to its Pro Rata Share in, or failure to deliver a Response Notice with respect to, any Offering Stockholders under this Section 4.1 shall not affect its rights as to future Offerings pursuant to this Section 3.1. In modify the event that the Company has not sold the Equity Securities within sixty (60) calendar days after the date of the expected Offering as restrictions set forth in Section 4.2 with respect to the Offering Notice, then the Company shall not thereafter issue or sell the Equity Securities without again first complying with the provisions of this Section 3.1 and offering the Investor the right to purchase its Pro Rata Share thereofapplicable Standstill Limit. (d) For Without limiting the avoidance generality of doubtthe foregoing, under no circumstances shall any pledgee with respect to an Offering of any Common Stock or any Transferee from the type described in clause (i) of the definition of “Offering”, the Company and the Investor Stockholders will comply with the provisions of the Registration Rights Agreement to the extent the provisions of such pledgee be deemed an Investor for purposes of this Section 3.1, and no such pledgee or Transferee shall have any rights under this Section 3.1Registration Rights Agreement are then applicable.