Exhibit 10.2


 


FORM OF OPERATING COMPANY AGREEMENT


 


 


 




 





LIMITED LIABILITY COMPANY AGREEMENT


 


OF SK-EARTHLINK LLC


 


by and among


 


EARTHLINK, INC.;


 


SK TELECOM INTERNATIONAL, INC.;


 


SK-EARTHLINK MANAGEMENT CORP.


 


and


 


SK-EARTHLINK LLC


 


Dated as of                 ,
2005




 


 





 





















 


TABLE OF CONTENTS


	
  ARTICLE 1

  	
   

  	
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  1.1.

  	
  Certain
  Definitions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  	
  The Operating Company and its Business

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.1.

  	
  Formation;
  Effectiveness

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.2.

  	
  Name

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.3.

  	
  Term

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.4.

  	
  Filing
  of Certificate and Amendments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.5.

  	
  Purpose
  and Powers

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.5.1

  	
  Operating
  Company Purpose

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2.5.2

  	
  Operating
  Company Powers

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.6.

  	
  Principal
  Office: Registered Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.7.

  	
  Names
  and Addresses of Members

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  2.8.

  	
  Partnership
  Treatment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  	
  Representations and Warranties

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1.

  	
  Representations
  of SKTI, EarthLink and the Management Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.1.1

  	
  Power
  and Authority

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.1.2

  	
  Binding
  Agreement

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.1.3

  	
  Notices,
  Reports and Filings

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3.1.4

  	
  Non-Contravention

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  	
  Transfer Restrictions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.1.

  	
  Transfer
  Restrictions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.1.1

  	
  Lock-In
  Period

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.1.2

  	
  Permitted
  Transfers

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.1.3

  	
  Agreement
  to be Bound

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.1.4

  	
  Effect
  of Transfer

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.2.

  	
  Prohibited
  Transferees

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.2.1

  	
  Non-EarthLink
  Prohibited Transferees

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.2.2

  	
  Non-SKT
  Prohibited Transferees

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  4.2.3

  	
  Limitation
  on Prohibited Transferees

  	
   

  



 


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  4.3.

  	
  Right
  of First Refusal

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.4.

  	
  Tag-along
  Right

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.5.

  	
  Limitation
  on the Right of First Refusal and Tag-along Right

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  4.6.

  	
  Put-Call
  on Contribution Breach

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  	
  RESTRICTED SERVICES

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.1.

  	
  Restricted
  Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.1.1

  	
  EarthLink
  Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.1.2

  	
  SKTI
  Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  5.1.3

  	
  Sales
  to Commercial Partners

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.2.

  	
  Products
  and Services Outside the Business Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.3.

  	
  Wimax
  Enabled Devices

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.4.

  	
  CDMA
  Laptop Cards

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.5.

  	
  ASP

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.6.

  	
  Future
  Services

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.7.

  	
  Exclusivity

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.8.

  	
  Right
  of First Negotiation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  5.9.

  	
  Availability
  of Injunctive Relief

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  	
  Management of The Operating Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.1.

  	
  Management
  of the Operating Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.1

  	
  Business
  Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.2

  	
  Execute
  Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.3

  	
  Retain
  and Terminate Personnel

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.4

  	
  Internal
  Controls

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.5

  	
  Outside
  Advisors

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.6

  	
  Books
  and Records

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.7

  	
  Tax
  Elections

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  6.1.8

  	
  Other
  Powers

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.2.

  	
  Compensation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.3.

  	
  Issuances
  of Membership Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  6.4.

  	
  Officers

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  	
  Members

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.1.

  	
  Powers
  of Members

  	
   

  



 


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  7.2.

  	
  Partition

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.3.

  	
  Place
  of Members’ Meetings

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.4.

  	
  Meetings

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.5.

  	
  Telephonic
  Meetings

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.6.

  	
  Notice
  of Meetings

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.7.

  	
  Waivers

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.8.

  	
  Quorum

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.9.

  	
  Proxies

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.10.

  	
  Voting Power

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.11.

  	
  Written Consent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.12.

  	
  Liability

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  7.13.

  	
  Designation of Tax
  Matters Member: Tax Matters

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  7.13.1

  	
  Audit

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  7.13.2

  	
  Tax Filings

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  7.13.3

  	
  Material Tax Elections

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  	
  Admission of Additional Members

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.1.

  	
  Admission

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  8.2.

  	
  Acceptance of Prior Acts

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  	
  Capital Contributions and Capital Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.1.

  	
  Capital Contributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.1.1

  	
  Initial Capital
  Contributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.1.2

  	
  Additional Capital
  Contributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.2.

  	
  Membership Units;
  Capital Contributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  9.3.

  	
  Capital Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.3.1

  	
  Capital Account Increases

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.3.2

  	
  Capital Account Decreases

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  9.3.3

  	
  Transferee Capital Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
   

  	
  Tax Allocations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.1.

  	
  Allocation of Profits

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.1.1

  	
  Prior Losses Allocated

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.1.2

  	
  Percentage Interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.2.

  	
  Allocation of Losses

  	
   

  



 


iii





















 


	
   

  	
   

  	
  10.2.1

  	
  Percentage Interest

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.2.2

  	
  Limitation on Allocation
  of Losses

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.3.

  	
  Special Allocations

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.3.1

  	
  Minimum Gain Chargeback

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.3.2

  	
  Qualified Income Offset

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.3.3

  	
  Elimination of Capital
  Account Deficits

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.3.4

  	
  Adjustments to Capital
  Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  10.4.

  	
  Other Allocation Rules.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.4.1

  	
  Calculation of Profits
  and Losses

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.4.2

  	
  Substantial Economic Effect

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.4.3

  	
  Closing of the Books Method

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.4.4

  	
  Built-in Gain or Loss

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  10.4.5

  	
  Income Tax Effects

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
   

  	
  Distributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.1.

  	
  Distributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.2.

  	
  Distribution of the
  Proceeds upon Dissolution

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  11.2.1

  	
  Operating Company Obligations

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  11.2.2

  	
  Member Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  11.2.3

  	
  Capital Accounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  11.2.4

  	
  Percentage Interests

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.3.

  	
  No Withdrawal

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.4.

  	
  Mandatory Tax Distribution

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  11.5.

  	
  Limitations on Distributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12

  	
   

  	
  Ancillary Agreements; Operating Budgets;
  Financial Reports

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.1.

  	
  Ancillary Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.2.

  	
  Operating Budgets

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.3.

  	
  Financial Reports.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  12.3.1

  	
  Annual Statements

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  12.3.2

  	
  Quarterly Statements

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  12.3.3

  	
  Monthly Statements

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  12.3.4

  	
  Additional Information

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  12.4.

  	
  Books and Records

  	
   

  



 


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  ARTICLE 13

  	
   

  	
  Termination of The Operating Company;
  Liquidation and Distribution of Assets

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.1.

  	
  No Dissolution

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.2.

  	
  Events Causing Dissolution

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  13.2.1

  	
  Written Consent

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  13.2.2

  	
  Unlawful to Continue

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  13.2.3

  	
  Order of Dissolution

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.3.

  	
  Survival

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.4.

  	
  Winding Up

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.5.

  	
  Filing of
  Certificate of Cancellation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.6.

  	
  Material Breach

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  13.7.

  	
  Claims of the Members

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14

  	
   

  	
  Withdrawal of a Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.1.

  	
  Withdrawal of a Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  14.2.

  	
  Effect of Withdrawal

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 15

  	
   

  	
  Exchange and Pre-emptive Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.1.

  	
  Exchange of Membership Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.2.

  	
  Public Offering of
  Class A Common Stock

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.3.

  	
  Issuance and
  Conversion of Preferred Stock

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.4.

  	
  Equity Plan Compensation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.5.

  	
  Availability
  of Authorized and Unissued Class A Common Stock

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  15.6.

  	
  Preemptive Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 16

  	
   

  	
  Additional Agreements

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.1.

  	
  Maintenance of Parent
  Entity as a Party

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.2.

  	
  Certificates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.3.

  	
  Security

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.4.

  	
  Lost or Destroyed
  Certificates

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.5.

  	
  Most Favored Company

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.6.

  	
  Most Favored Pricing

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.7.

  	
  Change of Control

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.8.

  	
  Standstill

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.9.

  	
  Non-Hire and
  Non-Solicitation of Employees

  	
   

  



 


v





















 


	
   

  	
  16.10.

  	
  Members’ Expenses

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.11.

  	
  Insurance

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.12.

  	
  Freedom of Action

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  16.13.

  	
  Indemnification

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 17

  	
   

  	
  Dispute Resolution

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.1.

  	
  Dispute Resolution

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  17.1.1

  	
  Negotiation Between Executives

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  17.1.2

  	
  Mediation With Mutually
  Agreed-Upon Neutral

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  17.1.3

  	
  Arbitration

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  17.1.4

  	
  Tolling of Statutes of
  Limitation

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  17.2.

  	
  Right to
  Injunctive Relief Before Appointment of Arbitrators

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 18

  	
   

  	
  Miscellaneous

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.1.

  	
  Governing Law

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.2.

  	
  Notices

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.3.

  	
  Compliance with
  Applicable Laws

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.4.

  	
  Severability

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.5.

  	
  Counterparts

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.6.

  	
  Headings

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.7.

  	
  Successors and Assigns

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.8.

  	
  Entire Agreement; Amendment;
  Waiver

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.9.

  	
  No Relief of Liabilities

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.10.

  	
  Further Assurances

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  18.11.

  	
  Third Party Beneficiaries

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Exhibits

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit
  A

  	
   

  	
  Business
  Plan

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Schedules

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Schedule 9.1.1

  	
   

  	
  Capital Accounts

  	
   

  
						



 


vi





















 


THIS LIMITED LIABILITY COMPANY AGREEMENT
(this “Agreement”) of SK-EarthLink
LLC, a Delaware limited liability company (the “Operating Company”), is made and entered into as of
              ,
2005, by and among SK Telecom International, Inc., a Delaware corporation (“SKTI”), EarthLink, Inc., a Delaware
corporation (“EarthLink”), the
Management Company (as defined in Section 1.1)
and the Operating Company.


 


WHEREAS, the
Operating Company is a joint venture established by EarthLink and SK Telecom
Co., Ltd., a corporation with limited liability organized under the laws of The
Republic of Korea (“SKT”), for the
purpose of developing and marketing branded wireless telecommunications
services, including, without limitation, handsets, voice services, data
services (including CDMA laptop cards and related software), stand-alone and
other wireless services within the United States;


 


WHEREAS, SKT,
EarthLink and the Operating Company have entered into the Contribution and
Formation Agreement under the terms of which the Initial Members have agreed to
contribute certain assets to the Operating Company; and


 


WHEREAS, the Members
desire to restrict the sale, transfer and distribution of the JV Securities as
provided herein and to set forth certain terms and conditions by which the
operation and management of the Operating Company will be conducted;


 


NOW, THEREFORE, in
consideration of the premises, mutual promises set forth herein and other good
and valuable consideration, the receipt and sufficiency of which is
acknowledged, the Parties agree as follows:


 


ARTICLE 1

DEFINITIONS


 


1.1.         Certain Definitions.  For the purposes of this Agreement, the
following terms shall have the meanings set forth beside them in this Section 1.1.


 


“Act”
shall mean the Delaware Limited Liability Company Act, as amended.


 


“Additional
Capital” shall have the meaning set forth in Section 9.1.2.


 


“Additional
Member” shall have the meaning set forth in Section 8.1.


 


“Adjusted
Capital Account Deficit” shall have the meaning set
forth in Section 10.2.2.


 


“Affiliate”
shall mean with respect to any Person, any Person
directly or indirectly Controlling, Controlled by, or under common Control with
such other Person at any time during the period for which the determination of
affiliation is being made.


 


“Agreement”
shall have the meaning set forth in the introductory paragraph.


 


“Ancillary
Agreements” shall mean, collectively, the
Stockholders’ Agreement, the Contribution and Formation Agreement, and the
Registration Rights Agreement.


 





















 


“ASP
Items” shall have the meaning set forth in Section 5.5.


 


“Beneficial
Owner” shall mean a person deemed to have “Beneficial
Ownership” of any securities pursuant to Rule 13d-3 and 13d-5 of
the Exchange Act, as such rules are in effect on the date of this Agreement, as
well as any securities as to which such Person has the right to become
Beneficial Owner (whether such right is exercisable immediately or only after
the passage of time or the occurrence of conditions) pursuant to any agreement,
arrangement or understanding (other than customary agreements with and between
underwriters and selling group members with respect to a bona  fide
public offering of securities), or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise; provided,  however,
that no Initial Member shall be deemed the “Beneficial Owner” or to have
“Beneficial Ownership” of, or to “Beneficially Own,” any Membership Units or
Shares owned by the other Initial Member solely by virtue of the rights set
forth in this Agreement.


 


“Board
of Directors” shall mean the Board of Directors of the
Management Company.


 


“Business
Plan” shall mean the set of detailed one-year and more
general five-year plans and projections with respect to the Operating
Company.  Each Business Plan shall
contemplate, among other matters:  (a) the
markets to be covered by the Operating Company Business; (b) the activities of
the Operating Company; (c) amounts that must be invested or otherwise
contributed to the Operating Company by its Members, whether as capital
contributions or loans, during the calendar year following that of the approval
of the Business Plan, as well as the estimate for the four years immediately
following; and (d) the rates of return and profitability that are expected to
be obtained by the Operating Company. 
The Business Plan shall include, among other matters:  (i) market and feasibility studies; (ii)
financial and market projections and schedules; (iii) projected balance sheets
and financial statements; (iv) projected cash flow; (v) human resources plan;
(vi) projected rates of return; (vii) timetables of additional investments and
other contributions and (viii) an annual budget including, among other things,
anticipated revenues, expenditures (capital and operating) and cash
requirements of the Operating Company for the following year (the “Operating Budget”).


 


“Capital
Account” when used with respect to any Member shall
mean the capital account maintained for such Member in accordance with Section 9.3, as said capital account may be
increased or decreased from time to time pursuant to the terms of Sections 9.3.1 and 9.3.2. 
The initial Capital Accounts shall be determined in accordance with Schedule 9.1.1.


 


“Capital
Contribution” when used with respect to any Member,
shall mean the amount of capital contributed by such Member to the Operating
Company in accordance with the Contribution and Formation Agreement or in
accordance with this Agreement, including without limitation Additional
Capital.


 


“CEO” shall
have the meaning set forth in Section 6.4.


 


“Certificate
of Formation” shall mean the Certificate of Formation
of the Operating Company filed with the Delaware Secretary of State, as amended
from time to time.


 


2





















 


“Change of
Control” shall mean the transfer of Control, or sale
of all or substantially all of the assets (in one or more related
transactions), of a holder of Class B Common Stock, from the Person that
holds such Control or assets, to another Person, but shall not include a
transfer of Control, or such sale of assets, to an Affiliate of such holder of
Class B Common Stock.


 


“Class
A Common Stock” shall mean the Class A Common
Stock, par value $0.01 per share, of the Management Company.


 


“Class
A Options” shall have the meaning set forth in Article
5.5 of the Management Company Certificate.


 


“Class
B Common Stock” shall mean the Class B Common
Stock, par value $0.01 per share, of the Management Company.


 


“Class
B Members” shall mean EarthLink, SKTI and any
permitted successors or assigns; provided that such Person or a Subsidiary
or Parent Entity of such Person owns a share of Class B Common
Stock .


 


“Code”
shall mean the Internal Revenue Code of 1986, as amended.


 


“Common
Stock” shall mean the Class A Common Stock and
the Class B Common Stock of the Management Company.


 


“Confidentiality
Agreement” shall mean the confidentiality agreement
entered into by and among EarthLink, SKT, SKTI, the Management Company and the
Operating Company as of the date hereof.


 


“Contracts”
shall mean all agreements, contracts, leases and subleases, purchase orders,
arrangements, commitments, non-governmental licenses, notes, mortgages,
indentures or other obligations.


 


“Contribution
and Formation Agreement” shall mean the Contribution
and Formation Agreement, dated as of January 26, 2005, entered into by and
among SKT, SKTI and EarthLink.


 


“Contribution
Breach” shall have the meaning set forth in Section 4.6.


 


“Contribution
Closing” shall mean the “Closing” as defined in the
Contribution and Formation Agreement.


 


“Control”
as used with respect to any Entity, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of management
policies of such Entity through the ownership of voting securities or by
contract.


 


“EarthLink”
shall have the meaning set forth in the introductory paragraph.


 


3





















 


“EarthLink
Wireless” shall have the meaning set forth in Section 5.4.


 


“Entity”
shall mean any corporation, firm, unincorporated organization, association,
partnership, limited partnership, limited liability company, limited liability
partnership, business trust, joint stock company, joint venture organization,
entity or business.


 


“Exchange
Act” shall mean the Securities Exchange Act of 1934,
as amended.


 


“Exclusivity
Period” shall have the meaning set forth in Section 5.4.


 


“First
Party” shall have the meaning set forth in Section 4.3.


 


“Fiscal
Year” shall mean the Fiscal Year of the Operating
Company, which shall be the period commencing on January 1 in any year and ending
on December 31 in such year, or such other Fiscal Year that the Management
Company shall determine.


 


“GAAP”
shall mean United States generally accepted accounting principles.


 


“Governmental
Entity” shall mean any governmental or regulatory
authority, court, agency, commission, body or other similar entity.


 


“Initial
Capital Contribution” shall have the meaning set forth
in Section 9.1.1.


 


“Initial
Member” shall mean SKTI, EarthLink and the Management
Company and any of their permitted successors or assigns.


 


“JV
Securities” shall mean the Membership Units and the
Shares.


 


“Litigation”
shall mean any pending or threatened action, arbitration, complaint, criminal
prosecution, breach, violation, claim, demand or demand letter, notice of
non-compliance, default or breach, governmental or other examination or
investigation, hearing, inquiry, administrative or other proceeding relating to
or affecting the Operating Company, its business or its assets.


 


“Lock-in
Period” shall have the meaning set forth in Section 4.1.1.


 


“Losses”
shall mean all losses, liabilities, damages, claims, demands, judgments, fines,
penalties, interest or settlements of any nature or kind, whether absolute or
contingent, matured or unmatured, liquidated or unliquidated, accrued or unaccrued,
known or unknown, including all reasonable costs and expenses (legal,
accounting or otherwise as such costs are incurred) relating thereto, suffered
by any Person, but excluding lost profits, exemplary, indirect, special,
incidental, punitive or consequential damages (except for any such otherwise
excluded damages payable to a Third Party by the Member or the Operating
Company).


 


“Management
Company” shall have the meaning set forth in the
introductory paragraph and shall include any other successor Management Company
selected in accordance


 


4





















 


with the terms
hereof.  Management Company shall be a
“manager” of the Operating Company within the meaning of Section 18-101(10)
of the Act.


 


“Management
Company Certificate” shall mean the Certificate of
Incorporation of Management Company, as in effect from time to time.


 


“Material
Adverse Effect” shall have the meaning set forth in
the Contribution and Formation Agreement.


 


“Material
Breach” shall mean a material breach of this Agreement
or the Ancillary Agreements that remains uncured for a period of ninety (90)
days following receipt of notice of such breach; provided, that
the cure period may be extended for an additional thirty (30) days if the
breaching party is actively and diligently exerting good faith efforts to cure
the breach.


 


“Member”
shall initially mean and refer to SKTI, EarthLink and the Management Company,
and shall thereafter refer to their respective successors and permitted
assigns, and any other members admitted to the Operating Company in accordance
with Section 8.1.


 


“Members’
Meeting” shall have the meaning set forth in Section 7.3.


 


“Membership
Interest” shall mean a Member’s entire equity
ownership interest in the Operating Company at any particular time, including
such Member’s share of the profits and losses of the Operating Company and
right to receive distributions of the Operating Company’s assets, and all other
benefits to which a Member may be entitled, all in accordance with the provisions
of this Agreement and the Act, together with the obligations of such Member to
comply with all the terms and provisions of this Agreement.  The Membership Interests constitute one class
of limited liability company interest in the Operating Company.


 


“Membership
Unit” means a fractional, undivided share of the
Membership Interests of all Members issued pursuant to this Agreement.


 


“Membership
Unit Exchange Rate” shall have the meaning set forth
in Section 15.1.


 


“Officers”
shall mean the Chief Executive Officer and Chief Financial Officer of the
Operating Company and such other officers of the Operating Company as shall
from time to time be appointed by the Management Company until such time as any
such officer is removed in accordance with the terms of his or her appointment.


 


“Operating
Budget” shall have the meaning set forth in the
definition of the Business Plan.


 


“Operating
Company Business” shall mean the business transacted
by the Operating Company and shall include the development and marketing of
branded wireless telecommunications services, including, without limitation,
handsets, voice services, data


 


5





















 


services (including CDMA laptop cards and related software),
stand-alone and other wireless services in the United States.


 


“Operating
Company Products and Services” shall mean the products
and services which are offered and sold by the Operating Company or a
Subsidiary thereof.


 


“Parent
Entity” shall mean, with respect to any Entity that is
a Subsidiary of a Person, the Person that, directly or indirectly, Beneficially
Owns at least fifty percent (50%)
of the equity of such Subsidiary and is not a Subsidiary of any Person.


 


“Parties”
shall initially mean SKTI, EarthLink and the Management Company and shall
thereafter include any other Person executing a counterpart of this Agreement.


 


“Percentage
Interest” shall mean a Member’s percentage interest in
the Total Outstanding Shares as determined by dividing the number of Total
Outstanding Shares owned by such Member or any Subsidiary or Parent Entity of
such Member by the number of Total Outstanding Shares then owned by all Members
(including all Subsidiaries or Parent Entities of such Members).  The Percentage Interests owned by the
Class B Members as of the Contribution Closing are set forth on Schedule 9.1.1.


 


“Permitted Transfers” shall have the meaning set forth in Section 4.1.2.


 


“Person”
shall mean any natural person or Entity.


 


“Preferred
Stock” shall mean the preferred stock of the Management
Company.


 


“Prohibited
Transferees” shall have the meaning set forth in Section 4.2.


 


“Provider”
shall have the meaning set forth in Section
5.5.


 


“Public
Common Stock” shall mean the Class A Common Stock
that has been registered with the Securities and Exchange Commission for sale
to the public.


 


“Public
Offering” shall mean a sale of Public Common Stock to
underwriters in a bona fide, firm commitment underwriting pursuant to a
registration statement on Form S-1, SB-2 or S-3 (or a successor form) under the
Securities Act.


 


“Registration
Rights Agreement” shall mean the Registration Rights
Agreement dated as of the date hereof, entered into by and among SKT, EarthLink
and the Management Company.


 


“Regulations”
shall mean the regulations promulgated under the Code from time to time.


 


“Right
of First Negotiation” shall have the meaning set forth
in Section 5.8.


 


“Right
of First Refusal” shall have the meaning set forth in Section 4.3.


 


6





















 


“ROFR
Percentage Interest” shall mean the percentage as
determined by dividing the number of Total Outstanding Shares owned by a Second
Party or any Subsidiary or Parent Entity of such Second Party by the number of
Total Outstanding Shares then owned by all holders of Class B Common Stock
and Subsidiaries and Parent Entities of holders of Class B Common Stock,
but excluding the Shares owned by the First Party.


 


“ROFR
Termination Date” shall have the meaning set forth in Section 4.3.


 


“Second
Party” shall have the meaning set forth in Section 4.3.


 


“Securities
Act” shall mean the Securities Act of 1933, as
amended.


 


“Shares”
shall mean the issued and outstanding Common Stock and the Preferred Stock.


 


“SKT”
shall have the meaning set forth in the Recitals.


 


“SKTI”
shall have the meaning set forth in the introductory paragraph.


 


“Stockholders’
Agreement” shall mean and refer to the Stockholders’
Agreement dated as of the date hereof, entered into by and among SKT, EarthLink
and the Management Company.


 


“Subject
Interest” shall have the meaning set forth in Section 4.3.


 


“Subsidiary”
shall mean, as to any Person, any Entity (i) of which such Person, directly or
indirectly, owns securities or other equity interests representing fifty
percent (50%) or more of the aggregate voting power or (ii) of which such
Person possesses the right to elect fifty percent (50%) or more of the
directors or Persons holding similar positions. 
The Operating Company shall be deemed to be a Subsidiary of the
Management Company.


 


“Tag-along
Election Notice” shall have the meaning set forth in Section 4.4.


 


“Tag-along
Right” shall have the meaning set forth in Section 4.4.


 


“Tax
Matters Member” shall have the meaning set forth in Section 7.13.


 


“Third
Party” shall mean any Person other than EarthLink,
SKTI, SKT, the Operating Company, the Management Company or any Affiliate of
the foregoing.


 


“Total
Outstanding Shares” shall mean, from time to time, the
sum of (a) the number of shares of Class A Common Stock issued and
outstanding and (b) the number of shares of Class A Common Stock obtained
if all issued and outstanding shares of Class B Common Stock, Membership
Units and shares of convertible Preferred Stock were then converted into shares of Class A Common Stock in
accordance with Articles 5.1, 5.2 and 5.4, respectively, of the Management
Company Certificate.


 


7





















 


“Transfer”
shall mean any direct or indirect sale, transfer, assignment, pledge,
hypothecation, mortgage or other disposition or encumbrance, of any beneficial
or economic interest in any JV Securities, including those by operation or
succession of law, merger or otherwise. 
A Transfer of JV Securities shall be deemed to have occurred upon any
transfer of the stock of a Subsidiary holding the JV Securities that results in
such Entity no longer being a Subsidiary of a Class B Member.  However, a Change of Control of a holder of
Class B Common Stock shall not be deemed to be a Transfer.


 


“Transfer
Notice” shall have the meaning set forth in Section 4.3.


 


“VOIP”
shall mean voice over Internet protocol.


 


“VoWiFi”
shall mean voice over WiFi.


 


“Wimax
Enable Devices” shall have the meaning set forth in Section 5.3.


 


“Withdrawal
Event” shall have the meaning set forth in Section 14.1.


 


ARTICLE 2

THE OPERATING COMPANY AND ITS BUSINESS


 


2.1.         Formation; Effectiveness.  The Operating Company has been formed as a
Delaware limited liability company pursuant to Section 18-201(d) of the
Act.  This Agreement shall become
effective upon execution by all of the Parties hereto.


 


2.2.         Name.  The name of the
Operating Company shall be SK-EarthLink LLC.


 


2.3.         Term.  The Operating Company
shall continue in full force and effect until it is dissolved, wound up and
terminated as hereinafter provided.  The
Operating Company shall exist as a separate legal entity until the cancellation
of the Certificate of Formation in accordance with the Act.


 


2.4.         Filing of Certificate and Amendments.  Subject to the restrictions set forth in the
Management Company Certificate, the Management Company shall have the power and
authority to execute and file or cause to be executed and filed any required
amendments to the Certificate of Formation and do all other acts required to
form the Operating Company as a limited liability company under the laws of the
State of Delaware and to qualify the Operating Company to conduct business in
each applicable jurisdiction.


 


2.5.         Purpose and Powers.


 


2.5.1       Operating Company Purpose.  The purposes of the Operating Company are to
(i) operate the Operating Company Business, (ii) make such additional
investments and engage in such additional activities as the Management Company
may approve and (iii) engage in any and all activities and exercise any power
permitted to limited liability companies under the laws of the State of Delaware.


 


8





















 


2.5.2       Operating Company Powers.  The Operating Company shall have the power and
authority to do any and all acts necessary, appropriate, proper, advisable,
incidental or convenient to or in furtherance of the purposes of the Operation
Company set forth in this Section 2.5
and to conduct any other lawful activity not specifically prohibited to limited
liabilities companies under the laws of the State of Delaware.


 


2.6.         Principal Office:  Registered Agent.  The principal office of the Operating Company
shall initially be located at Atlanta, Georgia and may be changed from time to
time at the discretion of the Management Company.  The mailing address of the Operating Company
shall be such address as may be selected from time to time by the Management
Company.  The registered agent of the
Operating Company shall be The Corporation Trust Company and its registered
office shall be Corporation Trust Center, 1209 Orange Street, Wilmington, New
Castle County, Delaware 19801.


 


2.7.         Names and Addresses of Members.  The names and addresses of the initial Members
are as follows:


 


SK Telecom International, Inc.


The Concourse IV


1735 Technology Drive


8th Floor


San Jose, CA 95110


Attention: 
Brian Kim, President


 


EarthLink, Inc.


1375 Peachtree Street, N.E.


Atlanta, Georgia  30309


Attention: 
Chief Executive Officer


 


SK-EarthLink Management Corp.


1375 Peachtree Street, N.E.


Atlanta, Georgia  30309


Attention: 
Chief Executive Officer


 


2.8.         Partnership Treatment.  It is intended that the Operating Company will
be treated as a partnership solely for United States federal and, to the extent
permitted by applicable law, state and local income tax purposes.  The Members agree to take any action
reasonably requested by the Operating Company that may be desirable to ensure
that the Operating Company is so treated. 
No Member shall take any action that is inconsistent with such
treatment.


 


9





















 


ARTICLE 3

REPRESENTATIONS AND WARRANTIES


 


3.1.         Representations of SKTI, EarthLink and the
Management Company.  As of the date hereof, each of SKTI, EarthLink
and the Management Company, severally and not jointly, represents and warrants
to the others as set forth below.


 


3.1.1       Power and Authority.  It has all requisite corporate power and
authority and has taken all corporate action necessary in order to execute and
deliver this Agreement and to perform fully its obligations hereunder.


 


3.1.2       Binding Agreement.  This Agreement has been duly executed and
delivered by it and is a valid and binding agreement of it enforceable against
it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.


 


3.1.3       Notices, Reports and Filings.  No notices, reports or other filings are
required to be made by it with, nor are any consents, registrations, approvals,
permits or authorizations required to be obtained by it from, any Governmental
Entity, in connection with its execution and delivery of this Agreement, except
those that have been made or obtained or that the failure to make or obtain are
not, individually or in the aggregate, reasonably likely to (a) result in a
Material Adverse Effect on the Operating Company.


 


3.1.4       Non-Contravention.  The execution, delivery and performance of
this Agreement by it does not, and the consummation by it of the transactions
contemplated hereby will not, constitute or result in (a) a breach or violation
of, or a default under, its organizational documents, (b) a breach of or
violation of or a default under, or the acceleration of any obligations of or
the creation of a lien or encumbrance on its assets (with or without notice,
lapse of time or both) pursuant to any Contracts binding upon it or any law,
statute or regulation or governmental or non-governmental permit or license to
which it is subject or (c) any change in the rights or obligations of any party
under any of such Contracts to which it is a party, except, in the case of
clause (b) or (c) above, for any breach, violation, default, acceleration,
creation or change that, individually or in the aggregate, is not reasonably
likely to result in a Material Adverse Effect on the Operating Company.


 


ARTICLE 4

TRANSFER RESTRICTIONS


 


4.1.         Transfer Restrictions.  Until such time as a Type A Triggering Event
(as defined in Article 5 of the Management Company Certificate) shall
occur, each Member agrees that it and its Subsidiaries and Parent Entities
shall not Transfer or permit any Transfer, in any single transaction or series
of related transactions, any JV Securities that are, directly or indirectly, Beneficially Owned by it,
except in accordance with the terms of this Agreement and the Stockholders’
Agreement.  Any Transfer of any JV
Securities other than in accordance with this Agreement and the Stockholders’
Agreement shall be null and void.


 


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4.1.1       Lock-In Period. 
During the five (5) year period immediately following the Contribution
Closing (the “Lock-in Period”),
the Members and their Subsidiaries and Parent Entities shall not Transfer or
solicit any Transfer of any JV Securities without the prior written consent of
the non-transferring Class B Members, which, during the first three (3)
years of the Lock-in Period, can be withheld in any such Class B Member’s
sole discretion and, during the last two (2) years of the Lock-in Period,
cannot be unreasonably withheld.  After
the expiration of the Lock-In Period, the Members and their Subsidiaries may,
subject to the restrictions on Transfer contained in this Article 4, Transfer all or any portion of
their JV Securities to a Third Party without the necessity of obtaining the
prior written consent of each of the Class B Member(s).  Furthermore, under no circumstances shall a
Class B Member Transfer its JV Securities during the pendency of a
Contribution Breach by such Class B Member.


 


4.1.2       Permitted Transfers. 
Notwithstanding anything in Section 4.1.1
to the contrary, the following Transfers of JV Securities will be permitted
(the “Permitted
Transfers”)
without the necessity of obtaining the written consent of the Class B
Members:


 


(a)                                  a Transfer to a Parent Entity (to which the Member is a
wholly-owned Subsidiary) or a wholly-owned Subsidiary of the Member;


 


(b)                                 a Transfer in connection with a Public Offering as a
selling stockholder;


 


(c)                                  a Transfer to the Operating Company or the Management
Company; and


 


(d)                                 a pledge to a financial institution of a Member’s JV
Securities in connection with a borrowing secured by a Member’s JV Securities
together with substantially all of that Member’s other assets.


 


4.1.3       Agreement to be Bound. 
In all circumstances other than those described in Section 4.1.2(b), a Transfer of JV Securities
shall be given effect by the Operating Company or Management Company only upon
receipt of the written agreement of the recipient of the transferred JV
Securities agreeing to be bound by the terms and conditions of this Agreement
or the Stockholders’ Agreement, as the case may be, and the Confidentiality
Agreement.


 


4.1.4       Effect of Transfer.  Upon any Transfer of all of a Member’s JV
Securities, the transferring Member will have no continuing rights or
obligation under this Agreement or the Stockholders’ Agreement but shall
continue to be bound by any Ancillary Agreements to which it is a party, in
accordance with their terms.


 


4.2.         Prohibited Transferees. 



 


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4.2.1       Non-EarthLink Prohibited Transferees. 
Notwithstanding anything to the contrary contained herein, the Members,
other than EarthLink or a Subsidiary or Parent Entity of EarthLink, shall not
Transfer or attempt to Transfer any JV Securities to any of the Third Parties
set forth on Schedule 4.2.1
or to any successor or Affiliate of such Third Parties (“Non-Earthlink Prohibited Transferees”), except as expressly
permitted under Section 4.2.3.


 


4.2.2       Non-SKT
Prohibited Transferees.  Notwithstanding anything to the contrary
contained herein, the Members, other than SKTI or a Subsidiary or Parent Entity
of SKTI, shall not Transfer or attempt to Transfer any JV Securities to any of
the Third Parties set forth on Schedule 4.2.2
or to any successor or Affiliate of such Third Parties. (“Non-SKT Prohibited Transferees”), except as expressly
permitted under Section 4.2.3.


 


4.2.3       Limitation
on Prohibited Transferees.  The prohibition on Transfers to
Prohibited Transferees (as defined below) shall not apply to Transfers pursuant
to a Public Offering.  In addition, if
the Percentage Interest of the Total Outstanding Shares of either EarthLink or
SKT falls below ten percent (10%), then the other party shall no longer be
bound by the restrictions on Transfers to the applicable Prohibited Transferees
set forth on Schedules 4.2.1 and 4.2.2. The Non-EarthLink Prohibited Transferees and the
Non-SKT Prohibited Transferees shall collectively be referred to as the “Prohibited Transferees”.


 


4.3.         Right of First Refusal. 
Subject to Section 4.5,
if a Member (the “First Party”)
receives a bona-fide written offer by a Third Party to purchase all or a
portion of the First Party’s Membership Units (the “Subject Interest”) that the First Party desires
to accept, the First Party shall promptly after receipt of the offer deliver
notice (the “Transfer Notice”)
to the Operating Company and any non-transferring Class B Members (each
non-transferring Class B Member a “Second Party” and collectively, the “Second Parties”) stating that the First Party proposes to Transfer the
Subject Interest.  The Transfer Notice
shall (i) specify the purchase price and other material terms of the Transfer
of the Subject Interest, (ii) identify the proposed purchaser, (iii) specify
the date scheduled for the Transfer (which date shall not be less than ninety
(90) days after the date the Transfer Notice is delivered) and (iv) have
attached thereto a copy of the bona fide offer and any ancillary agreements
containing terms and conditions of the sale of the Subject Interest.  Within sixty (60) days after receipt of a Transfer
Notice, the Second Part(ies) shall have the right to elect to purchase a
portion of the Subject Interest being sold equal to their respective ROFR
Percentage Interests (a “Right of First Refusal”), on terms and conditions no less favorable to the First
Party than those set forth in the Transfer Notice; provided, that
if such terms and conditions include non-cash assets or non-financial
requirements that would be impracticable to satisfy, then such Second Part(ies)
shall not be required to satisfy such terms, conditions and requirements, and
the purchase price for the Subject Interest will include an amount equal to the
fair market value of such non-cash assets. 
If the First Party is not a Class B Member and a Second Party declines
to purchase its proportionate share of the Subject Interest, then the remaining
Second Party will have the right to purchase the entire Subject Interest.  If the Second Part(ies) elect to purchase the
Subject Interest, the First Party and the Second Part(ies) shall use reasonable
efforts to consummate the closing of the purchase of the Subject Interest as
soon as reasonably practicable and in any event within one hundred twenty (120)
calendar days after receipt of the Transfer Notice (the “ROFR Termination Date”), provided, that
if the closing does not occur by then due to the failure to receive any
required regulatory approvals or


 


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consents, the ROFR Termination Date may be
extended by either the First Party or the Second Part(ies) until such approvals
are received, but in no event for a period of more than one hundred eighty
(180) calendar days after receipt of the Transfer Notice.  If the First Party is not a Class B Member,
each Second Party elects to purchase its entire ROFR Percentage Interest of the
Subject Interest and one Second Party fails to make such purchase by the ROFR
Termination Date (as it previously may have been extended) for any reason, then
the other Second Party will have the right to purchase the entire Subject
Interest, provided that the closing for such purchase occurs within thirty (30)
days following the ROFR Termination Date (as it previously may have been
extended).  If the Right of First Refusal
is not exercised by the Second Part(ies) as to the entire Subject Interest
within sixty (60) days of receipt of the Transfer Notice or the entire Subject
Interest is not purchased from the First Party prior to the ROFR Termination
Date, as adjusted for any extension thereto, then the First Party may sell the
Subject Interest to the proposed purchaser identified in the Transfer Notice on
the terms set forth therein, subject to the Tag-along Right of the Second
Part(ies) provided in Section 4.4,
below.  If a Second Party agrees to
purchase any portion of the Subject Interest in accordance with the foregoing
and fails to complete the purchase of such portion of the Subject Interest
prior to the ROFR Termination Date, other than as a result of a denial of any
required regulatory approvals or consents or another Second Party’s failure to
close the purchase of any portion of the Subject Interest that such other
Second Party has agreed to purchase, then such non-purchasing Second Party
shall be deemed to have breached this Agreement and, in addition to any other
right or remedy available to the First Party, the Management Company or any
other Second Party, shall be deemed to have forfeited its Tag-along Right under
Section 4.4 in connection with the First
Party’s right to sell the Subject Interest to the Third Party named in the
Transfer Notice.  The above Right of
First Refusal shall not apply to a transaction which constitutes a Change of
Control of a Class B Member.


 


4.4.         Tag-along Right. 
If the Right of First Refusal is not exercised as to the entire Subject
Interest within sixty (60) days of receipt of the Transfer Notice or the entire
Subject Interest is not purchased from the First Party on or before the ROFR
Termination Date, as it may have been extended, then each Second Party will
have the right to sell to the Third-Party purchaser identified in the Transfer
Notice a portion of the Subject Interest, from such Second Party’s Membership
Units, equal to the Subject Interest multiplied by such Second Party’s
Percentage Interest (“Tag-along Right”);
provided that no Second Party that has breached its obligations under Section 4.3 with respect to any Subject
Interest may exercise any Tag-along Right with respect to such Subject
Interest.  A Second Party electing to
exercise its Tag-along Right shall provide to the Operating Company and the
First Party written notice of such election (the “Tag-along Election Notice”) within such sixty (60) day
period.  The Tag-along Election Notice
shall specify the number of Membership Units to be included in the sale to the
Third-Party purchaser.  Any sale pursuant
to this Section 4.4 shall be consummated not later
than sixty (60) days following delivery of the Tag-along Election Notice.


 


4.5.         Limitation on the Right of First Refusal and
Tag-along Right.  The Right of First Refusal and Tag-along Right
described in Sections 4.3
and 4.4, above, shall not apply to
Permitted Transfers (as defined in Section 4.1.2).  The Right of First Refusal and the Tag-along
Right shall apply during the Lock-in Period only if the consent of the
non-transferring Members is obtained. 
Following the expiration of the Lock-in Period, the Right of First
Refusal and Tag-along Right shall apply whether or not the consent of the
non-transferring Members is obtained. 
The Right of First Refusal and the Tag-along


 


13





















 


Right shall terminate upon a Public Offering
of the Class A Common Stock and the availability of Rule 144 to Members
for the Transfer of their Membership Units.


 


4.6.         Put-Call on Contribution Breach.  From and after the occurrence of a
Contribution Breach, the non-breaching Class B Member shall have the right
to offer to the breaching Class B Member, to either: (a) call and purchase
all, but not less than all, of the JV Securities of the breaching party and its
Affiliates at a purchase price equal to eighty percent (80%) of the fair market
value of the JV Securities of the breaching party and its Affiliates, or (b)
put and cause the breaching party to purchase all, but not less than all, of
the JV Securities of the non-breaching party and its Affiliates, at a purchase
price equal to one hundred and twenty percent (120%) of the fair market value
of the JV Securities of the non-breaching party and its Affiliates. The fair
market value shall be determined by first obtaining the appraisals of two
independent nationally recognized United States investment banking firms.  If the two appraisals differ by more than ten
percent (10%), then a third appraiser shall be engaged which shall determine
which of the appraisals most accurately reflects the fair market value of the
JV Securities.  If the first two
appraisals are within ten percent (10%), then they will be averaged to
determine the fair market value.  The
parties shall close the transaction within one hundred and twenty (120) days of
the non-breaching party’s notice to the breaching party of its election to
effect the put or call, as the case may be. 
If the put-call right is not exercised within thirty (30) days of the
determination that a Contribution Breach has occurred, then the right shall
expire with respect to that particular breach. The exercise of the put and call
rights set forth above is optional, but, if exercised, shall be the exclusive
remedy available to the non-breaching party with respect to the Contribution
Breach.  A “Contribution Breach” shall mean a failure by a
Class B Member to make a scheduled cash contribution of capital to the
Operating Company in accordance with the Contribution and Formation Agreement, Section 9.1.1 of this Agreement or as
otherwise agreed to by such Member.


 


ARTICLE 5

RESTRICTED SERVICES


 


5.1.         Restricted Services.  For the periods
specified below, the Operating Company and its Subsidiaries shall not provide
the services set forth in this Section 5.1
(the “Restricted
Services”),
except as provided in Section 5.1.3
or pursuant to a written agreement with the party benefiting from such
restrictions.


 


5.1.1       EarthLink Services.  For so long as EarthLink or a Subsidiary of
EarthLink owns a share of Class B Common Stock, the Operating Company and
its Subsidiaries shall not provide the following Restricted Services that the
parties deem to compete with and overlap the products and services provided by
EarthLink and its Affiliates: (a) Broadband internet access, including cable,
DSL, PC-based satellite and fixed wireless; (b) Dial-up internet access; (c)
Web hosting services; (d) VOIP or VoWiFi services over broadband; (e) PC-based
wireless Wide Area Network or Local Area Network internet access services (e.g.
home networking) and (f) Internet portal service for Third Parties that are not
customers of the


 


14





















 


Operating Company or a Subsidiary thereof,
except as needed for customer acquisition services and maintenance purposes.


 


5.1.2       SKTI
Services.  For so long as SKT or a Subsidiary of SKT owns
a share of Class B Common Stock, the Operating Company and its
Subsidiaries shall not provide the following Restricted Services that the
parties deem to compete with and overlap the products and services provided by
SKTI and its Affiliates: (a) mobile virtual network enabler, wireless
application service provider and managed services for wireless telecom service
providers and (b) development and manufacture of wireless devices with the
intent to sell such devices to wireless telecom service providers, provided,
that the Operating Company and its Subsidiaries are permitted to
purchase and distribute such devices that are manufactured by Third-Party
manufacturers.


 


5.1.3       Sales to Commercial Partners.  Notwithstanding the above restrictions, the
Operating Company and its Subsidiaries may offer the Operating Company Products
and Services to commercial partners who bundle and sell the Operating Company
Products and Services with products and services which constitute or are
similar to the Restricted Services.


 


5.2.         Products and Services Outside the Business
Plan.  The Operating Company and its Subsidiaries
shall not engage in the development of new products and services that are
outside of the approved Business Plan.


 


5.3.         Wimax Enabled Devices.  The Operating Company and its Subsidiaries,
may distribute handset devices that contain the hardware and software
components necessary to permit Wimax access (“Wimax Enabled Devices”) and related hand-set only
Wimax access services, but, for so long as EarthLink or a Subsidiary of
EarthLink owns a share of Class B Common Stock, may not sell PC-based
Wimax services other than those of EarthLink.  The Operating Company and its Subsidiaries may
distribute Wimax Enabled Devices to Third Parties who bundle and resell the
Wimax Enabled Devices with the Wimax handset only access services of such Third
Party.  The Operating Company may only
offer EarthLink’s PC-based Wimax devices and services, which EarthLink shall
make available to the Operating Company on prices, terms and conditions that
are at least as favorable, from a financial perspective, to the Operating
Company as the prices, terms and conditions of substantially similar products
and services provided by EarthLink to a third party not affiliated with
EarthLink.  Distribution of any other
Wimax convergent devices, between PC and handset devices, must be approved by
the Board of Directors.


 


5.4.         CDMA Laptop Cards.  Notwithstanding anything in this Agreement to
the contrary, with respect to CDMA laptop cards (and related software), the
Operating Company may distribute “EarthLink Wireless”
branded CDMA laptop cards and “EarthLink Total Access” access software, which shall be the exclusive card and
software distributed by the Operating Company, during the period (the “Exclusivity Period”) that begins on the date hereof
and ends on the earlier to occur of (i) the date on which EarthLink or a
Subsidiary of EarthLink ceases to owns a share of Class B Common Stock or
(ii) the second anniversary of the date hereof. 
Following the expiration of the Exclusivity Period, the Operating
Company and its


 


15





















 


Subsidiaries shall be permitted to market and
distribute any CDMA laptop cards and related software.


 


5.5.         ASP.  For so long as
EarthLink or a Subsidiary of EarthLink owns a share of Class B Common
Stock, each Member and each Subsidiaries of a Member that acts as an ASP in the
United States (each, a “Provider”)
and proposes to offer ASP solutions, applications and platforms (including a
license or professional service with respect thereto, but excluding Coloring
Service, (each, an “ASP Item”
and collectively, the “ASP Items”)
to any Third Party within or for use within the United States, shall give the
Operating Company written notice six (6) months prior to the proposed
offer.  During the six (6) month notice
period, the Operating Company shall have the option to purchase or adopt the
offered ASP Item or Items from the Provider (for purposes of internal use or
resale to third parties) on terms no less favorable than those offered by the
Provider to the Third Party.  If the Operating
Company purchases or adopts the offered ASP Items(s) from the provider within
the option period, then provider shall: (a) be prohibited from offering or
selling the ASP Item(s) to any Third Party in the United States or for use in
the United States without the Operating Company’s written consent.  If the Operating Company declines to acquire
or adopt the ASP Item(s), the Provider may provide the ASP Item(s) to the Third
Party; and (b) provide the Operating Company with a reasonably detailed service
deployment plan with respect to the ASP Item(s).  The foregoing shall not apply to contracts
between a Provider and any Third Party entered into prior to November 1,
2004.  Under no circumstances shall SKT
propose to offer ASP Items to third parties within or for use in the United
States during 2005.


 


5.6.         Future Services. 
EarthLink
and SKTI acknowledge that the list of Restricted Services is complete as of the
date first above written.  If EarthLink
or SKT provides, any future products or services within the United States, such
as wired-wireless integrated service or satellite/terrestrial digital
broadcasting services, that are excluded from the then-current scope of
Restricted Services, then, for so long as such Member or a Subsidiary of such
Member owns a share of Class B Common Stock, EarthLink and SKT shall
negotiate in good faith whether or not to include such services as part of the
Restricted Services.


 


5.7.         Exclusivity.  EarthLink and SKT and their Subsidiaries
shall not provide mobile wireless voice or data services over handsets in the
United States.  Neither EarthLink nor SKT
nor their respective Subsidiaries shall assist any Parent Entity or any
Subsidiary of any Parent Entity in any activity that would constitute a
violation of this exclusivity provision if it were performed by such party or
its Subsidiaries directly.  Except as
provided in this Agreement, nothing shall prohibit EarthLink or SKT or their
respective Subsidiaries from competing with each other or the Operating
Company, its Parent Entity or any of its Subsidiaries.  The restrictions set forth in this Section 5.7 shall terminate on the date
that is two (2)
years from the first date on which either Class B Member’s ownership of the
Total Outstanding Shares falls below ten percent (10%).


 


5.8.         Right of First Negotiation.  EarthLink, for so long as EarthLink or a
Subsidiary of EarthLink owns a share of Class B Common Stock, shall have a
“Right of First
Negotiation”
for the opportunity to participate in any venture that SKTI, directly or
indirectly, might launch in Canada to provide products and services
substantially similar to the Operating Company 


 


16





















 


Products and Services.  Upon receipt of written notice from SKTI of
its intent to pursue a similar venture in Canada, EarthLink shall have ten (10)
days to exercise its Right of First Negotiation by delivering written notice to
SKTI of its interest in participating in the venture.  Upon EarthLink’s exercise of its Right of
First Negotiation, the parties will negotiate exclusively with one another in
good faith to enter into definitive agreements and consummate the potential
venture within a minimum period of one hundred fifty (150) days (which shall be
extended to permit required governmental approvals).


 


5.9.         Availability of Injunctive Relief.  The parties acknowledge that each may seek
injunctive relief under Section 17.2
to satisfy the requirement of this Article 5 as
well as for any other breach of this Agreement.


 


ARTICLE 6

MANAGEMENT OF THE OPERATING COMPANY


 


6.1.         Management of the Operating Company.  The management of the Operating Company shall
be vested exclusively in the Management Company.  The Management Company acknowledges that its
powers are subject to the terms of the Management Company Certificate and
agrees at all times to abide by the terms and conditions set forth
therein.  All Strategic Decisions and
Deadlock Matters (each as defined in Article 8 of the Stockholders’
Agreement) shall be made and resolved as provided in the Stockholders’
Agreement.  The Management Company shall
serve until the Members shall determine by a unanimous vote of the Membership
Units, excluding Membership Units held by the Management Company, to remove the
Management Company.  At such time, the
Members shall elect a new Management Company by a unanimous vote of the
Membership Units, excluding Membership Units held by the Management
Company.  If the Management Company is
the sole Member of the Operating Company, then the Management Company shall be
entitled to elect any successor to manage the Operating Company.  The Management Company shall have the power
on behalf and in the name of the Operating Company to carry out any and all of
the objects and purposes of the Operating Company and to perform or authorize
all acts which it may deem necessary or advisable in connection therewith.  The Members agree that all determinations,
decisions and actions made or taken by the Management Company in accordance
with this Agreement and the Management Company Certificate shall be conclusive
and absolutely binding upon the Operating Company, the Members and their
respective successors, assigns and representatives.  Without limiting the foregoing, the
Management Company shall have and may delegate to its officers the powers and
responsibilities set forth in this Section 6.1.


 


6.1.1       Business Plan.  The power to develop and prepare the Business
Plan and Operating Budget of the Operating Company each year for approval by
the Management Company’s Board of Directors, in accordance with the Management
Company Certificate.


 


6.1.2       Execute Documents.  The power to execute and deliver Contracts and
other documents in the ordinary course of the Operating Company’s business.


 


6.1.3       Retain and Terminate Personnel.  The power to employ, retain, consult with and
dismiss personnel.


 


17





















 


6.1.4       Internal Controls.  The power to establish and enforce corporate
governance and financial policies including, without limitation, limits of
authority and internal controls with respect to all personnel and functions.


 


6.1.5       Outside Advisors.  The power to engage attorneys, consultants,
accountants and other agents and representatives of the Operating Company.


 


6.1.6       Books and Records.  The power to develop or cause to be developed
accounting procedures for the maintenance of the Operating Company’s books of
account and the selection of appropriate financial systems and controls.


 


6.1.7       Tax Elections.  The power to make all tax elections in a
manner which, unless SKTI or EarthLink disagree, will maximize or accelerate
tax deductions or minimize or defer taxable income.


 


6.1.8       Other Powers.  The power to do all such other acts as shall
be specifically authorized by (a) this Agreement or (b) by the Members in
writing from time to time.


 


6.2.         Compensation.  The Management Company shall not be entitled
to compensation for services rendered to the Operating Company in its capacity
as the Management Company, but shall be entitled to receive from the Operating
Company reimbursement of all of its out of pocket costs and expenses (a)
required in connection with managing the business of the Operating Company
Business, and (b) incurred in connection with making filings and reports under
the Securities Act and the Exchange Act (including registration statements).


 


6.3.         Issuances of Membership Units.  The Management Company is hereby authorized to
cause the Operating Company to issue Membership Units to the Initial Members in
connection with the initial Contribution Closing in the amounts set forth on Schedule 9.1.1, and, from time to time
thereafter, to issue additional Membership Units, upon approval of the Board of
Directors of the Management Company and in accordance with terms of this
Agreement.


 


6.4.         Officers.  The Initial Members
will select the Chief Executive Officer of the Operating Company (the “CEO”).  The CEO will be an employee of the Operating
Company and will report to the Board of Directors of the Management
Company.  The CEO, together with the
Board of Directors of the Management Company, will select the other Officers,
define their roles and responsibilities and determine their compensation and
other terms of employment.  In the
absence of a CEO, the Board of Directors of the Management Company may appoint
such other Officers to perform the functions and duties of the CEO until a new
CEO is selected by the Board of Directors of the Management Company.   No Officer shall, without the prior approval
of the Board of Directors of the Management Company, take or permit to be taken
any action on behalf of or in the name of the Operating Company or enter into
any commitment or obligation binding upon the Operating Company, except for (i)
actions authorized in accordance with the terms and conditions of this
Agreement and (ii) actions authorized by the Board of Directors of the
Management Company in the manner set forth herein.  The Management Company shall have the full
and exclusive right, power and authority to act on behalf of the Operating
Company


 


18





















 


except to the extent that the Management
Company permits the Officers or any one of them to exercise such power on
behalf of the Management Company.


 


ARTICLE 7

MEMBERS


 


7.1.         Powers of Members.  Members shall have only such rights and
powers as are granted to Members pursuant to the express terms of this
Agreement and the Act.  Except as
otherwise expressly and specifically provided in this Agreement and, no Member,
in such capacity, shall have any authority to bind, to act for, to sign for or
to assume any obligation or responsibility on behalf of, any other Member or
the Operating Company.  Except as
expressly set forth in this Agreement, no action by the Operating Company shall
require the vote or approval of any Member in its capacity as a Member.


 


7.2.         Partition.  Each Member waives
any and all rights that it may have to maintain an action for partition of the
Operating Company’s property.


 


7.3.         Place of Members’ Meetings.  Meetings of Members (each, a “Members’ Meeting”) shall be held at the principal
office of the Operating Company, or at such other place as Members shall
unanimously agree.


 


7.4.         Meetings.  A Members’ Meeting
may be called by any Member for any matter which is appropriate for
consideration thereat.  Members’ Meetings
shall be held from time to time, but no fewer than once in each calendar
year.  Meetings shall be chaired by the
Chairman of the Management Company, and the Secretary of the Meeting shall be
appointed by the Chairman of the Management Company.


 


7.5.         Telephonic Meetings.  Members’ Meetings may be held through the use
of conference telephone or similar communications equipment so long as all
Persons participating in such Members’ Meetings can hear one another at the
time of such Members’ Meeting. 
Participation in a Members’ Meeting via conference telephone or similar
communications equipment in accordance with the preceding sentence constitutes
presence in person at the Members’ Meeting.


 


7.6.         Notice of Meetings.  Written notice of a Members’ Meeting shall
state the place, date and hour of such Members’ Meeting, and the general nature
of the business to be transacted.  Notice
shall be given in the manner prescribed in Section 18.2 not fewer than ten (10) days nor more than sixty (60) days
before the date thereof.


 


7.7.         Waivers.  Notice of a Members’
Meeting need not be given to any Member who signs a waiver of notice, in person
or by proxy, whether before or after the Members’ Meeting.  The attendance of any Member at a Members’
Meeting, in person or by proxy, without protesting, prior to the conclusion of
such Members’ Meeting, the lack of notice of such Members’ Meeting, shall
constitute a waiver of notice by such Member, provided, that such
Member has been given an adequate opportunity at the meeting to protest such
lack of notice.


 


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7.8.                            Quorum.  The attendance of an authorized representative
of each Class B Member, each with the right to vote their Membership
Units, shall constitute a quorum at a Members’ Meeting for the transaction of
any business.  If there are no
Class B Members, the attendance of an authorized representative of Members
holding no less than two thirds of the issued and outstanding Membership Units
shall constitute a quorum.  If no quorum
is present, holders of a majority of Membership Units present in person or by
proxy may adjourn the Members’ Meeting and if a quorum is present, the
affirmative vote of holders of at least two-thirds of the Membership Units
present in person or by proxy shall constitute the action of the Members.  Notice of the adjournment (with the new date,
time and place) shall be given to all Members who were absent at the time of
the adjournment and, unless such date, hour and place are announced at the
Members’ Meeting, to the other Members.


 


7.9.                            Proxies.  Every Member entitled to vote at a Members’
Meeting may authorize another Person or Persons to act for it by proxy.  Every proxy must be signed by the Member or
his attorney-in-fact.  Every proxy shall
be revocable in writing at the sole and absolute discretion of the Member
executing it.


 


7.10.                     Voting Power.  Each Membership Unit shall be entitled to one
(1) vote on all matters to be voted on by the Members.


 


7.11.                     Written Consent.  Any action required or permitted to be taken
at any Members’ Meeting may be taken without a meeting if all Members consent
thereto in writing.  Any such written
consents shall be filed with the minutes of the proceedings.


 


7.12.                     Liability.  Except as otherwise provided by the Act, the
debts, obligations and liabilities of the Operating Company, whether arising in
contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Operating Company, and neither the Members nor the
Management Company shall be obligated personally for any such debt, obligation
or liability of the Operating Company solely by reason of being a Member or the
Management Company.


 


7.13.                     Designation of Tax Matters Member: 
Tax Matters.  The Management Company shall act as the  “tax matters partner” of the Operating
Company, as provided in the regulations pursuant to Section 6231 of the Code
(the “Tax Matters
Member”).  To the extent and in the manner provided by
applicable Code sections and Regulations thereunder, the Tax Matters Member (a)
shall furnish the name, address, profits interest and taxpayer identification
number of each Member to the IRS and (b) shall inform each Member of
administrative or judicial proceedings for the adjustment of the Operating
Company items required to be taken into account by a Member for income tax
purposes.  The Tax Matters Member shall
not enter into an agreement with the IRS or any other taxing authority to
extend the limitation period for assessment of any federal, state or local
income, franchise or unincorporated business tax of any Member or owner thereof
nor settle with the IRS or any other taxing authority to disallow deductions or
increase income from the Operating Company with respect to any Member, unless
all of the Members shall have agreed thereto. 
Each Member hereby reserves all rights under applicable law, including
the right to retain independent counsel of its choice at its expense (which
counsel shall receive the full cooperation of the Management Company and shall
be


 


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entitled to prior review of all submissions
by the Operating Company in respect of any dispute with the relevant taxing
authority).


 


7.13.1              Audit.  Notwithstanding the foregoing, each Initial
Member shall retain the right to control the portion of any audit relating to
depreciation or gain or loss with respect to any of the assets contributed at
the Contribution Closing by or on behalf of Affiliates of such Initial Member,
respectively, for any taxable year.


 


7.13.2              Tax Filings.  On or before May 1 of each year, the Operating
Company shall provide to each Member (i) a draft Internal Revenue Service
Schedule K-1 and Form 1065, (ii) information required by such Member to
allocate and apportion income for state income tax purposes and (iii) such
other information concerning the Operating Company reasonably requested by any
Member.  Each Member shall have the right
to object to any amount or information reported on such draft Schedule or Form
on or before May 15 of any given year. 
If the Members cannot agree about the contents of such draft Schedule or
Form, the tax director of the Management Company shall resolve the dispute in
such a manner that maximizes or accelerates tax deductions or minimizes or
defers taxable income.


 


7.13.3              Material Tax Elections.  The Tax Matters
Member shall not be entitled to make any material elections, including an
election under Section 754 of the Code, unless all Members shall have consented
thereto.


 


ARTICLE 8

ADMISSION OF ADDITIONAL MEMBERS


 


8.1.                            Admission.  Upon a Transfer of Membership Units (other
than a pledge permitted under Section 4.1.2
of all or any of a Member’s Membership Units), the Operating Company is
authorized to admit any Person who is a transferee of such Membership Units as
an additional member of the Operating Company (each, an “Additional Member” and collectively, the “Additional Members”); provided, that no such Person
shall be entitled to any rights hereunder except pursuant to a Transfer in
accordance with this Agreement.  Each
such Person shall be admitted as an Additional Member at the time such Person executes
this Agreement and the Confidentiality Agreement or a counterpart of this
Agreement and the Confidentiality Agreement and such Transfer is given effect
under Article 4.


 


8.2.                            Acceptance of Prior Acts.  Any Person who
becomes an Additional Member, accepts, ratifies and agrees to be bound by all
actions duly taken pursuant to the terms and provisions of this Agreement by
the Operating Company prior to the date it became an Additional Member and,
without limiting the generality of the foregoing, specifically ratifies and
approves all agreements and other instruments as may have been executed and
delivered on behalf of the Operating Company prior to said date and which are
in force and effect on said date.


 


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ARTICLE 9

CAPITAL CONTRIBUTIONS AND

CAPITAL ACCOUNTS


 


9.1.                            Capital Contributions.


 


9.1.1                     Initial Capital Contributions.  At the Contribution
Closing, the Initial Members contributed capital, or made a commitment to
contribute capital, to the Operating Company in the form and amount required
under the Contribution and Formation Agreement. 
In exchange for such capital contributions and the commitment of each
Initial Member to make all future capital contributions required under the
Contribution and Formation Agreement (each an “Initial Capital Contribution”), the Operating Company issued
Membership Units to the Initial Members at the Contribution Closing in the
amounts set forth on Schedule 9.1.1, hereof.  Additional
Initial Capital Contributions by an Initial Member in accordance with the
Contribution and Formation Agreement shall not result in the issuance of any
additional Membership Units or any modification to the Percentage Interest of
each Initial Member set forth on Schedule 9.1.1,
provided, however, the contributing Initial Member’s basis in the Membership
Units issued to such Initial Member at the initial Contribution Closing shall
be increased by the value of such future Initial Capital Contributions.  The Members shall adopt a revised Schedule 9.1.1 reflecting the then current
Percentage Interests of the Members upon the occurrence of either of the
following: (a) the admission of an Additional Member pursuant to Section 8.1; or (b) an Additional Capital
Contribution pursuant to Section 9.1.2.


 


9.1.2                     Additional Capital Contributions.  Other than as set
forth in this Agreement or the Contribution and Formation Agreement, no Member
may make additional capital contributions to the Operating Company without the
approval of the Management Company.  If
the Management Company determines that the Operating Company requires
additional capital ( “Additional Capital”),
each Member shall have the right (but not the obligation) to contribute its pro
rata share of such Additional Capital as measured by the Percentage Interest of
such Member immediately prior to the time of contribution.  If, within thirty (30) days following receipt
from the Management Company of a notice specifying the amount of Additional
Capital so required, a Member fails to contribute its pro rata share of such
Additional Capital, then the other Members shall have the right to contribute
their pro rata portion of the uncontributed Additional Capital as measured by
the Percentage Interest of each Member immediately prior to the time of contribution,
excluding the Percentage Interest of the non-contributing Member. The Operating
Company shall issue Membership Units for such Additional Capital as determined
in accordance with Section 6.3
of this Agreement and by the Management Company. All cash contributed by the
Members and all cash and investment accounts shall be held in financial
institutions organized under the laws of the United States of America and
deposited in accounts denominated in United States Dollars.


 


9.2.                            Membership Units; Capital Contributions.  The Membership Units shall be considered
personal property of the Member.  Except
as provided in this Agreement, no Member shall be entitled to the return of its
Capital Contribution or to receive a distribution other than as provided in this
Agreement.  No return of a Member’s
Capital Contributions shall be made hereunder if such distribution would
violate applicable state law.  Under
circumstances requiring


 


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a return of any Capital Contribution, no
Member shall have the right to demand or receive property other than cash,
except as may be specifically provided in this Agreement.


 


9.3.                            Capital Accounts.  An individual Capital Account shall be
established and maintained for each Member in accordance with federal income
tax accounting principles.  The Capital
Account of each Member shall be maintained in accordance with the provisions of
this Section 9.3.


 


9.3.1                     Capital Account Increases.  The Capital Account of each Member shall be
increased by (a) the amount of any cash and the agreed net fair market value
(as used herein, “agreed net fair market value” of property shall mean
the gross fair market value of the property reduced by all liabilities
encumbering the property, as determined by the Board of Directors of the
Management Company as of the date of contribution) of any property contributed
as a Capital Contribution to the capital of the Operating Company by such
Member, (b) the amount of any profits allocated to such Member and (c) amounts
of gain allocated pursuant to Section 10.3.4.


 


9.3.2                     Capital Account Decreases.  The Capital Account
of each Member shall be decreased by (a) the amount of any losses allocated to
such Member, (b) the amount of any cash and the agreed net fair market value as
of the date of distribution of any property distributed to such Member and (c)
amounts of loss allocated pursuant to Section 10.3.4.


 


9.3.3                     Transferee Capital Accounts.  A transferee of a
Membership Unit shall succeed to the Capital Account (or portion of the Capital
Account) attributable to such transferred Membership Unit of the transferring
Member.


 


ARTICLE 10

TAX ALLOCATIONS


 


10.1.                     Allocation of Profits.  After giving effect to the special allocations
set forth in Section 10.3
and 10.4, profits for any Fiscal Year
shall be allocated as follows:


 


10.1.1              Prior Losses Allocated.  First, profits for any Fiscal Year shall be
allocated to those Members who are allocated losses pursuant to Section 10.2.2 in proportion to and in an
amount equal to any such losses allocated to such Members pursuant to Section 10.2.2, below.


 


10.1.2              Percentage Interests.  Second, profits for any Fiscal Year shall be
allocated among the Members in proportion to their respective Percentage
Interests.


 


10.2.                     Allocation of Losses.  After giving effect to the special allocations
set forth in Section 10.3
and 10.4, losses for any Fiscal Year
shall be allocated as follows:


 


10.2.1              Percentage Interest.  First, losses for any Fiscal Year next shall
be allocated among the Members in proportion to their respective Percentage
Interests, subject to the limitation in Section 10.2.2, below.


 


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10.2.2              Limitation on Allocation of Losses.  Losses allocated
pursuant to Section 10.2.1
shall not exceed the maximum amount of losses that can be allocated without
causing any Member to have an Adjusted Capital Account Deficit at the end of
any Fiscal Year.  In the event some, but
not all, of the Members would have an Adjusted Capital Account Deficit as a
consequence of an allocation of losses pursuant to Section 10.2.1, the limitations set forth in this Section 10.2.2 shall be applied on a Member by
Member basis so as to allocate the maximum permissible losses to each Member
under Section 1.704-1(b)(2)(ii)(d) of the Regulations.  “Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if
any, in such Member’s Capital Account as of the end of the relevant Fiscal
Year, after giving effect to the following adjustments:  add to such Capital Account any amount which
such Member is treated as obligated to restore pursuant to Regulations Section
1.704-1(b)(2)(ii)(c) by virtue of such Member’s guarantee or indemnity
agreement with respect to any Company debt or is deemed obligated to restore
pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and
1.704-2(i)(5) of the Regulations; and subtract from such Capital Account the
items described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5)
and 1.704-1(b)(2)(ii)(d)(6) of the Regulations. 
The foregoing definition of Adjusted Capital Account Deficit is intended
to comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the
Regulations and shall be interpreted consistently therewith.


 


10.3.                     Special Allocations.  The following special allocations shall be
made in the following order:


 


10.3.1              Minimum Gain Chargeback.  Notwithstanding any other provision of this
Agreement, (a) nonrecourse deductions of the Operating Company within the
meaning of Section 1.704-2 of the Regulations, other than partner nonrecourse
deductions within the meaning of Section 1.704-2(i), of the Regulations, shall
be allocated among the Members in accordance with their respective Percentage
Interests, (b) any partner nonrecourse deductions within the meaning of Section
1.704-2(i) of the Regulations, shall be allocated in accordance with Sections
1.704-2(i) and 1.704-2(k) of the Regulations, and (c) if there is a net
decrease in “minimum gain” within the meaning of Sections 1.704-2(d) and 1.704-2(i)(3)
of the Regulations for any Fiscal Year of the Operating Company, items of gain
and income shall be allocated among the Members in accordance with the “minimum
gain chargeback” rules contained in Sections 1.704-2(f) and (g) and
1.704-2(i)(4) of the Regulations.  The
Members’ respective interests in the Operating Company profits for purposes of
allocating excess nonrecourse liabilities of the Operating Company within the
meaning of Section 1.752-3(a)(3) of the Regulations shall be equal to their respective
Percentage Interests.


 


10.3.2              Qualified Income Offset.  In the event any
Member unexpectedly receives any adjustments, allocations or distributions
described in Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Regulations,
items of Operating Company income and gain (consisting of a pro rata portion of
each item of the Operating Company income, including gross income and gain for
such Fiscal Year) shall be specially allocated to such Member in an amount and
manner sufficient to eliminate, to the extent required by the Regulations, such
deficit in the Capital Account of such Member as quickly as possible.  This provision is intended to comply with the
“qualified income offset” requirements of Section 1.704-1(b)(2)(ii)(d) of the
Regulations, and this provision shall be interpreted in accordance with those
requirements.


 


24





















 


10.3.3              Elimination of Capital Account Deficits.  In the event any
Member has a deficit Capital Account at the end of any Fiscal Year which is in
excess of the sum of (i) the amount such Member is treated as obligated to
restore pursuant to Section 1.704-1(b)(2)(ii)(c) of the Regulations by virtue
of such Member’s guarantee or indemnity with respect to Operating Company debt
and (ii) the amount such Member is deemed to be obligated to restore pursuant
to the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of the
Regulations, each such Member shall be specially allocated items of Operating
Company income and gain in the amount of such excess as quickly as possible,
provided that an allocation pursuant to this Section 10.3.3 shall be made only if and to the extent that such Member
would have a deficit Capital Account in excess of such sum after all other
allocations provided for in this Agreement have been made as if this Section 10.3.3 were not in the Agreement.


 


10.3.4              Adjustments to Capital Accounts.  If the value for
Capital Account purposes of any Operating Company property is adjusted pursuant
to Section 9.3 hereof, subsequent allocations
of income, gain, loss, and deduction with respect to such asset shall take
account of any variation between the adjusted basis of such asset for federal
income tax purposes and its adjusted value in the same manner as under Section 704(c)
of the Code and the Regulations thereunder.


 


10.4.                     Other Allocation Rules.


 


10.4.1              Calculation of Profits and Losses.  Except as otherwise
set forth in this Agreement, profits and losses of the Operating Company shall
be determined for each Fiscal Year in accordance with the method of accounting
followed by the Operating Company for federal income tax purposes and otherwise
in accordance with GAAP, as modified by Section 1.704-1(b)(2)(iv) of the
Regulations.  Except as otherwise
provided in this Agreement, whenever a proportionate part of the Operating
Company profit or loss is allocated to a Member, every item of income, gain,
loss or deduction entering into the computation of such profit and loss shall
be considered allocated and every item of credit or tax preference applicable
to the period during which such profit or loss was realized shall be considered
allocated to such Member in the same proportion.  All allocations of such items for federal
income tax purposes shall be identical to the allocations set forth in this Article 10, except as otherwise required
by Section 704(c) of the Code and Section 1.704-1(b)(4) of the Regulations.


 


10.4.2              Substantial Economic Effect.  The Members intend
that the allocations of profits and losses under this Agreement shall have
substantial economic effect (or be consistent with the Members’ interests in
the Operating Company in the case of allocation of losses attributable to
nonrecourse debt) within the meaning of Section 704(b) of the Code as
interpreted by the Regulations promulgated pursuant thereto.  Accordingly, the provisions of Article 10 hereof and the other relevant
provisions of this Agreement shall be interpreted in a manner consistent with
such intent.  It is the Members’
intention that the Operating Company comply with the provisions of Section
1.704-1(b) of the Regulations.  However,
should such section be modified in a manner that, in the event the Operating
Company were to comply with such section as modified, the economic intentions
of the Members would be distorted, the economic intentions of the Members shall
govern.


 


25





















 


10.4.3              Closing of the Books Method.  If a Member Transfers
its interest in the Operating Company, the distributive shares of the various
items allocable among the Members during such Fiscal Year of the Operating
Company shall be allocated between the transferor and the transferee based on
the closing-of-the-books method, which will result in the allocation of items
between the transferor and the transferee based on the respective portions of
such Fiscal Year in which each was a Member. 
However, if both the transferor and the transferee consent, the
distributive shares of the various items allocable among the Members may be
allocated between the transferor and the transferee on the basis of the number
of days in such Fiscal Year preceding and following the effective date of the
transfer.


 


10.4.4              Built-in Gain or Loss.  In accordance with
Section 704(c) of the Code and the Regulations thereunder, income, gain, loss,
and deduction with respect to any property contributed to the Operating Company
shall, solely for federal income tax purposes, be allocated among the Members
so as to take account of any variation between the tax bases of such property
and such property’s fair market value as of the time of contribution to the
Operating Company.  Unless otherwise
agreed by the Members, such allocations shall be made pursuant to the “traditional
method,” as set forth in Section 1.704-3(f) of the Regulations without curative
or remedial allocations.


 


10.4.5              Income Tax Effects.  The Members are aware of the income tax
consequences of the allocations made in this Article 10 and hereby agree to be bound by the provisions of this Article 10 in reporting their shares of
Company income and loss for income tax purposes, except to the extent otherwise
required by law.


 


ARTICLE
11

DISTRIBUTIONS


 


11.1.                     Distributions.  Except as otherwise provided in Sections 11.2 and 11.5, below, all distributions to Members with respect to each
Fiscal Year shall be made in accordance with the Member’s respective Percentage
Interests at such times and in such amounts, if any, as the Management Company
shall determine.


 


11.2.                     Distribution of the Proceeds upon Dissolution.  Upon a dissolution of the Operating Company,
the net proceeds of dissolution shall be applied and distributed in the order
of priority set forth below.


 


11.2.1              Operating Company Obligations.  First, towards the
satisfaction of all outstanding debts and other obligations of the Operating
Company, including expenses of dissolution and the establishment of any
reserves deemed necessary by the Management Company for any contingent or
unforeseen liabilities or obligations of the Operating Company.


 


11.2.2              Member Loans.  Second, towards
repayment of outstanding loans, if any, made by Members to the Operating
Company.


 


11.2.3              Capital Accounts.  Third, proceeds will be distributed to the
Members in accordance with the positive balances of their Capital Accounts
until such Capital Account balances are equal to zero.


 


26





















 


11.2.4              Percentage Interests.  Fourth, to the Members in accordance with
their respective Percentage Interests.


 


11.3.                     No Withdrawal.  No Member may withdraw any amount from its
Capital Account except as otherwise provided in this Agreement.


 


11.4.                     Mandatory Tax Distribution.  The Operating Company shall, to the extent
that sufficient free cash flow is available, distribute to each Member on a
quarterly basis the product of (i) such Member’s share of the Operating Company’s
quarterly profits, and (ii) the highest marginal federal income tax rate plus
five percent (5%).  In the event the
Operating Company’s free cash flow is insufficient to fund such distributions,
the Operating Company shall make distributions of the free cash flow it has, in
proportion to amounts that would otherwise be payable.


 


11.5.                     Limitations on Distributions.  No distribution shall
be made if prohibited by Section 18-607 of the Act.


 


ARTICLE 12

ANCILLARY AGREEMENTS; OPERATING BUDGETS; FINANCIAL REPORTS


 


12.1.                     Ancillary Agreements.  The Ancillary
Agreements are being entered into by the Members in consideration of the
transactions contemplated herein and in the Contribution and Formation Agreement.  The Ancillary Agreements shall be applicable
to transferees of the Initial Members to the extent specifically provided
therein.


 


12.2.                     Operating Budgets.  Not later than October 1st of each year, the
CEO of the Operating Company shall submit to the Management Company the
Business Plan.  The initial Business Plan
is attached as Exhibit A.


 


12.3.                     Financial Reports.


 


12.3.1              Annual Statements.  As soon as practicable following the end of
each Fiscal Year, but in any event in sufficient time to permit the
Class B Members to report financial performance on a consolidated basis,
the Operating Company shall cause to be prepared and delivered to each
Class B Member the audited statement of income and statement of cash flows
for such Fiscal Year, audited balance sheet as of the end of such Fiscal Year,
and accompanying notes to financial statements for the Operating Company, on a
consolidated basis, prepared in accordance with GAAP and the Operating Company
accounting practices.


 


12.3.2              Quarterly Statements.  As soon as practicable following the end of
each fiscal quarter, but in any event within thirty (30) days after the end of such quarter, the Operating Company
shall cause to be prepared and delivered to each Class B Member an
unaudited statement of income (including taxable income) and statement of cash
flows for such quarter and an unaudited balance sheet as of the end of such
quarter on a consolidated basis, prepared in accordance with GAAP and the
Operating Company accounting and tax practices.


 


27





















 


12.3.3              Monthly Statements.  As soon as possible following the end of each
calendar month in each Fiscal Year, but in any event within fourteen (14) days
after the end of such month, the Operating Company shall cause to be prepared
and delivered to the Class B Member an unaudited statement of income
(including taxable income) and statement of cash flows for such month and an
unaudited balance sheet as of the end of such month on a consolidated basis,
prepared in accordance with GAAP and the Operating Company accounting and tax
practices.  The Operating Company shall
provide the Class B Members with a monthly report of significant operating
and financial statistics including number of subscribers, subscriber churn
statistics, minutes of use, average revenues per subscriber, acquisition costs
and capital expenditure efficiency statistics and such additional statistics
and information as may be approved from time to time by the Management Company
for internal use by the Operating Company. 
The Operating Company shall submit a best estimate of the actual results
for each month in sufficient time to permit the Class B Members to
appropriately record other income in a timely fashion.


 


12.3.4              Additional Information.  The Operating Company shall, upon reasonable
notice, give each of the Class B Members, for so long as it Beneficially
Owns Membership Units, during regular business hours, reasonable access to the
properties, documents and records, financial and otherwise, of the Operating
Company, and shall provide copies or extracts of the Operating Company’s
documents and records as the Class B Members may reasonably request.


 


12.4.                     Books and Records.  The Management Company shall prepare and file,
or cause to be prepared and filed, all applicable federal, state and local tax
returns.  Such books of account and tax
returns, together with a copy of this Agreement, shall at all times be
maintained at the principal place of business of the Operating Company and
shall be open to inspection and examination at reasonable times by each Member
and its duly authorized representative for any purpose reasonably related to
such Member’s interest in the Operating Company.  The Operating Company shall (a) retain such
books of account and tax returns until the expiration of the applicable statute
of limitations of the Operating Company and each Member (and, to the extent a
Member notifies the Operating Company, any extensions thereof), and (b) give
each Member reasonable written notice prior to transferring, destroying or
discarding any such books of account or tax returns and, if the Member so
requests, allow such Member to take possession of such books of account or tax
returns.


 


ARTICLE 13

TERMINATION OF THE OPERATING COMPANY; LIQUIDATION

AND DISTRIBUTION OF ASSETS


 


13.1.                     No Dissolution.  The Operating Company shall not be dissolved
by the admission of Additional Members in accordance with the terms of this
Agreement.


 


28





















 


13.2.                     Events Causing Dissolution.  The Operating Company shall be dissolved and
its affairs shall be wound up upon the first to occur of the events set forth
in this Section 13.2:


 


13.2.1              Written Consent.  The written consent of all Class B
Members or, if there are no Class B Members, a majority of all Members.


 


13.2.2              Unlawful to Continue.  The occurrence of any event which makes it
unlawful for the Operating Company to be continued.


 


13.2.3              Order of Dissolution.  The issuance of a decree by any court of
competent jurisdiction that the Operating Company be dissolved and liquidated.


 


13.3.                     Survival.  In the event of a dissolution, this Agreement
and the provisions set forth herein, except Articles 1, 13, 17 and 18 and Section 16.8, which shall survive indefinitely, shall terminate.


 


13.4.                     Winding Up.  In the event of the dissolution of the
Operating Company for any reason, the Management Company shall proceed promptly
to wind up the affairs and liquidate the assets of the Operating Company.  Except as otherwise provided in this Agreement,
the Members shall continue to share distributions and allocations during the
period of liquidation in the same manner as before dissolution.  The Management Company shall have complete
discretion to determine the time, manner and terms of any sale of the Operating
Company property pursuant to such liquidation.


 


13.5.                     Filing of Certificate of Cancellation.  Upon the completion of the winding up of the
Operating Company, the Management Company shall file a certificate of
cancellation with the Secretary of State of the State of Delaware as provided
in Section 18-203 of the Act.


 


13.6.                     Material Breach.  A Material Breach shall not automatically
result in the termination of this Agreement. 
However, upon the occurrence of a Material Breach, the non-breaching
party may, in addition to its rights under Section 4.6 of this Agreement, make a claim against the breaching party
in its own name and in the name of the Operating Company for damages caused by
the Material Breach in accordance with Article 17.


 


13.7.                     Claims of the Members.  The Members and
former Members shall look solely to the Operating Company’s assets for the
return of their Capital Contributions, and if the assets of the Operating
Company remaining after payment of or due provision for all debts, liabilities
and obligations of the Operating Company are insufficient to return such
Capital Contributions, the Members and former Members shall have no recourse
against the Operating Company, the Management Company or any other Member.


 


ARTICLE 14

WITHDRAWAL OF A MEMBER


 


14.1.                     Withdrawal of a Member.  A Member shall cease
to be a Member if it no longer Beneficially Owns any Membership Units (a “Withdrawal Event”).  Immediately after a Withdrawal Event, the
withdrawn Member and its Affiliates shall have no continuing rights or


 


29





















 


obligations under this Agreement but will remain subject to the terms
of Ancillary Agreements to the extent provided by, and in accordance with, the
express terms thereof.  Subject to
compliance with Article 4
hereof, a Member may voluntarily cause a Withdrawal Event and such action shall
not be a breach of this Agreement.


 


14.2.                     Effect of Withdrawal.  This Agreement shall
continue notwithstanding any withdrawal by a Member and all governance rights
set forth herein with respect to such Member shall be exercised by the
remaining Member.  No withdrawal shall
relieve a Member of liability for any prior breach of this Agreement.


 


ARTICLE 15

EXCHANGE AND PRE-EMPTIVE RIGHTS


 


15.1.                     Exchange of Membership Units.  A holder of
Membership Units (other than the Management Company) may, at its option,
exchange, at any time and from time to time, any or all of its Membership Units
for validly issued, fully paid and non-assessable shares of Class A Common
Stock pursuant to the terms of this Article 15
and the Management Company Certificate. 
The number of shares of Class A Common Stock obtained from the
exchange of the Membership Units shall be determined by multiplying the number
of Membership Units to be exchanged by the Membership Unit Exchange Rate then
in effect.  Such right shall be exercised
by the holder of the Membership Units to be exchanged by surrendering the
certificate representing the Membership Units to be exchanged to the Management
Company, during normal business hours at the principal offices of the
Management Company, accompanied by a written notice from the holder stating
that the Membership Units are being presented for exchange.  Upon exercise of such exchange right, the
Management Company shall issue the appropriate number of shares of Class A
Common Stock to the holder of the Membership Units being exchanged and, shall
be named as the record holder of the Membership Unit exchanged on the books of
the Operating Company.  The “Membership Unit Exchange Rate” shall be initially set at one
(1).  In the event there is any stock
split, distribution, dividend, combination (as set forth in Articles 5.13 and
5.14 of the Management Company Certificate) or similar transaction related to
the Class A Common Stock in which there is not an identical combination or
split or similar transaction related to the Membership Units, the Membership
Unit Exchange Rate in effect immediately after such event shall be equal to the
Membership Unit Exchange Rate in effect immediately before such event
multiplied by (a) the number of shares of Class A Common Stock outstanding
immediately after such event, and divided by (b) the number of shares of
Class A Common Stock outstanding immediately before such event.  In the event there is any split, combination
or other similar transaction related to the Membership Units in which there is
not an identical stock split, distribution, dividend, combination or similar
transaction related to the Class A Common Stock, the Membership Unit
Exchange Rate in effect immediately after such event shall be equal to the
Membership Unit Exchange Rate in effect before such event multiplied by (a) the
number of Membership Units outstanding immediately before such event, and
dividend by (b) the number of Membership Units outstanding immediately after
such event. The Management Company agrees that upon any such surrender, the
Management Company shall issue the appropriate number of shares of Class A
Common Stock to the Member.  No exchange of
Membership Units shall be effective until such time as


 


30





















 


the appropriate number of fully paid non-assessable shares of
Class A Common Stock shall have been duly issued in exchange therefor.


 


15.2.                     Public Offering of Class A Common Stock.  Upon completion of a
Public Offering by the Management Company and contribution of the net proceeds
from such Public Offering to the Operating Company, the Operating Company shall
issue to Management Company a number of Membership Units determined by the
Membership Unit Exchange Rate based on the number of shares of Class A
Common Stock sold in the Public Offering.


 


15.3.                     Issuance and Conversion of Preferred Stock. 
Upon the Management Company’s issuance of shares of Preferred Stock that
are convertible to shares of Class A Common Stock and contribution of the
net proceeds from such issuance to the Operating Company, the Operating Company
shall issue to the Management Company a number of Membership Units equal to the
number of shares of Preferred Stock issued divided by the product of (a) the
Membership Unit Exchange Rate and (b) the number of shares of Class A
Common Stock one share of Preferred Stock is then convertible into.  The holder of any shares of convertible Preferred
Stock may exercise its right to convert the shares to shares of Class A
Common Stock in accordance with the terms of the Preferred Stock.


 


15.4.                     Equity Plan Compensation.  Upon the Management
Company’s issuance of shares of Class A Common Stock in connection with
the exercise of Class A Options and contribution of the proceeds from the
exercise of such Class A Options, the Operating Company shall issue to the
Management Company a number of Membership Units determined by the Membership
Unit Exchange Rate then in effect based on the number of shares of Class A
Common Stock to the number of shares of Class A Common Stock issued in
connection with the exercise of such Class A Options.


 


15.5.                     Availability of Authorized and Unissued Class A Common Stock.  The Management Company will at all times
reserve and keep available a sufficient number of authorized but unissued
shares of Class A Common Stock to permit the conversion of the outstanding
shares of Class B Common Stock, Membership Units, and shares of convertible
Preferred Stock and the exercise of any outstanding Class A Options.  The Management Company covenants that if any
shares of Class A Common Stock require registration with or approval of
any governmental authority under any foreign, federal or state law before such
shares of Class A Common Stock may be issued upon such conversion or
exchange, the Management Company will promptly cause such shares to be so
registered or approved, as the case may be. 
The Management Company will use its reasonable best efforts to list the
shares of Class A Common Stock required to be delivered by the Operating
Company upon such conversion or exchange prior to such delivery upon each
national securities exchange or other recognized trading market upon which the
outstanding Class A Common Stock is listed at the time of such delivery.  The Management Company covenants that all
shares of Class A Common Stock that are issued, converted or exchanged as
provided in this Article 15
shall, upon issuance, be validly issued, fully paid and non-assessable.


 


15.6.                     Preemptive Rights.  Except for issuances of Membership Units to
the Management Company as expressly provided herein, each Class B Member
shall have the right,


 


31





















 


in accordance with this Section 15.6, to purchase from the Operating Company a sufficient number
of Membership Units to ensure that its percentage of Total Outstanding Shares
will not be reduced in connection with an issuance of Membership Units in a
private sale of Membership Units or otherwise. 
In the event a Class B Member elects to exercise its rights under
this Section 15.6, the purchase price per share
of Membership Units shall be equal to the fair market value of the
consideration paid for the Membership Units issued to the other party(ies).


 


ARTICLE 16

ADDITIONAL
AGREEMENTS


 


16.1.                     Maintenance of Parent Entity as a Party.  Each Initial Member
covenants and agrees that the Parent Entity of such Initial Member shall
execute a counterpart of this Agreement and shall guarantee all obligations of
such Initial Member hereunder. This section shall similarly apply to any
subsequent Parent Entity.


 


16.2.                     Certificates.  Membership Units shall be represented by a
certificate or certificates, setting forth upon the face thereof that the
Operating Company is a limited liability company formed under the laws of the
State of Delaware, the name of the Person to which it is issued and the number
of Membership Units which such certificate represents.  Such certificates shall be entered in the
books of the Operating Company as they are issued, and shall be signed by the
CEO of the Operating Company.  Upon any
Transfer of Membership Units permitted under this Agreement (other than a
pledge permitted under Section 4.1.2,
the transferring Member shall request the Operating Company to (i) issue to the
transferee a certificate representing the number of Membership Units so
Transferred and (ii) surrender to the Operating Company the existing
certificate and the Operating Company shall issue to the transferring Member
certificates representing the remaining Membership Units, if any, held by such
transferring Member after taking into account such Transfer.  All certificates representing Membership
Units (unless registered under the Securities Act), shall bear the following
legend:


 


THE LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE, AND MAY NOT BE
OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED, EXCEPT
IN A TRANSACTION WHICH IS REGISTERED UNDER, EXEMPT FROM, OR OTHERWISE IN
COMPLIANCE WITH THE FEDERAL AND STATE SECURITIES LAWS, AS TO WHICH THE COMPANY
HAS RECEIVED SUCH ASSURANCES AS THE COMPANY MAY REQUEST, WHICH MAY INCLUDE, A
SATISFACTORY OPINION OF COUNSEL.


 


ANY SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THE
LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS CERTIFICATE IS
RESTRICTED BY, AND SUBJECT TO, THE TERMS AND PROVISIONS OF A STOCKHOLDERS’
AGREEMENT BETWEEN SK-EARTHLINK MANAGEMENT CORP. AND


 


32





















 


THE STOCKHOLDERS SET FORTH THEREIN AND A LIMITED LIABILITY COMPANY
AGREEMENT BETWEEN SK-EARTHLINK LLC AND THE MEMBERS NAMED THEREIN, EACH DATED
THE [        
DAY OF           , 2005].   A COPY OF THE STOCKHOLDERS’ AGREEMENT AND
THE LIMITED LIABILITY COMPANY AGREEMENT IS ON FILE WITH THE SECRETARY OF THE
COMPANY.  BY ACCEPTANCE OF THIS CERTIFICATE,
THE HOLDER HEREOF AGREES TO BECOME BOUND BY THE STOCKHOLDERS’ AGREEMENT AND
LIMITED LIABILITY COMPANY AGREEMENT.


 


16.3.                     Security.  Each Membership Interest shall constitute a “security”
within the meaning of (a) Article 8 of the Uniform Commercial Code
(including Section 8-l02(a)(15) thereof) as in effect from time to time in the
States of Delaware and New York and (b) the Uniform Commercial Code of any
other applicable jurisdiction that now or hereafter substantially includes the
1994 revisions to Article 8 thereof as adopted by the American Law
Institute and the National Conference of Commissioners on Uniform State Laws
and approved by the American Bar Association on February 14, 1995.


 


16.4.                     Lost or Destroyed Certificates.  The Operating Company
may issue a new certificate for Membership Units in place of any certificate or
certificates theretofore issued by it, alleged to have been lost or destroyed,
upon the making of an affidavit of that fact, and providing an indemnity in
form and subject reasonably satisfactory to the Management Company by the
Person claiming the certificate to be lost or destroyed.


 


16.5.                     Most Favored Company.  Each of SKTI and
EarthLink shall use its reasonable best efforts to make available to the
Operating Company and its Subsidiaries the benefits of its agreements with
vendors on terms no less favorable than those generally available to it or its
Affiliates.


 


16.6.                     Most Favored Pricing.  Each of SKTI and
EarthLink shall offer its products and services to the Operating Company on
most favored customer pricing terms for substantially similar volumes of
substantially similar products and services. 
If the Operating Company agrees to such pricing, the Operating Company
and EarthLink or SKT, as applicable, shall enter into commercially reasonable
agreements containing such pricing and other commercially standard terms.


 


16.7.                     Change of Control.  If there is a Change of Control, the Operating
Company has no obligation to make a disposition of any of its properties or to
take any other action to eliminate any resulting product or service overlaps
with SKTI or EarthLink, as the case may be, or regulatory conflicts.


 


16.8.                     Standstill.  No Class B Member shall, and each Class B
Member shall cause its Subsidiaries to not, take any of the following actions
without the prior written consent of the other Class B Members, or the
Board of Directors of the Management Company, as appropriate:


 


33





















 


(a)                                  acquire or seek to acquire Beneficial Ownership of any
securities, including rights or options, of another Class B Member or the
Operating Company (other than, with respect to the Operating Company, as
permitted by this Agreement, the Management Company Certificate or any other
Ancillary Agreement);


 


(b)                                 propose to enter into any merger, purchase of
substantially all the assets or any other business combination involving
another Class B Member;


 


(c)                                  participate in any solicitation of proxies to vote, or
seek to advise any Person with respect to the voting of, any securities of
another Class B Member; propose any stockholder proposals for submission
to a vote of stockholders of another Class B Member, or propose any person
for election to, or the removal of any member from, the board of directors of
another Class B Member; or in any way seek to influence the management or
policies of another Class B Member; or


 


(d)                                 enter into any discussions or understandings with any
Third Party which would result in a violation of the foregoing.


 


The
foregoing obligations of the Class B Members shall terminate upon one (1)
year after:  (a) the dissolution of
the Operating Company; or (b) the transfer or conversion by either Class B
Member of the Class B Common Stock of the Management Company Beneficially
Owned, directly or indirectly, by the Member or its Subsidiaries.


 


16.9.                     Non-Hire and Non-Solicitation of Employees.  A Class B Member shall not hire or
attempt to hire any Operating Company employee or any “loaned” employee working
for the Operating Company while it or a Subsidiary owns a share of Class B
Common Stock and for a period of one (1) year thereafter; provided, however,
that nothing herein shall be deemed to prohibit a Class B Member from
conducting solicitations of the general public for employment by such Class B
Member.


 


16.10.              Members’ Expenses.  Each party shall pay for the expenses incurred
in connection with its directors and employees attending meetings.  The Management Company shall develop a plan
for compensating outside directors.


 


16.11.              Insurance.  The Operating Company shall purchase and
maintain insurance coverage adequate to cover risks of such types and in such
amounts as are customary for companies of similar size engaged in similar lines
of business, including, without limitation, liability insurance for the benefit
of its employees and officers with respect to claims against such employees and
officers in their capacity as employees and officers in such amounts as the
Management Company shall determine are adequate.


 


16.12.              Freedom of Action.  No Member shall be liable for breach of any
fiduciary duty to the Operating Company. 
In the event that a Member acquires knowledge of a potential


 


34





















 


transaction, agreement, arrangement or other matter which may be a
corporate opportunity for both such Member and the Operating Company, such
Member shall not have any duty to communicate or offer such corporate
opportunity to the Operating Company and such Member shall not be liable to the
Operating Company for breach of any fiduciary or other duty by reason of the
fact that such Member pursues or acquires such corporate opportunity for
itself, directs such corporate opportunity to another person or entity or does
not communicate such corporate opportunity to the Operating Company.  The Members acknowledge and agree that the
terms of this Section 16.12
shall in no way restrict or expand that rights and obligations of the Members
set forth in Article 5.


 


16.13.              Indemnification.  The Operating
Company shall, to the fullest extent permitted by applicable law as it
presently exists or may hereafter be amended, indemnify any Person who is a
party, or is threatened to be made a party, to any Litigation by reason of the
fact that such Person is or was a Member, an officer of the Operating Company
or of a Member, or a member of the Board of Directors of a Member or is or was
a member, a member of the board of directors or an officer, director, employee
or agent of another Person at the request of the Operating Company, for any
Losses suffered or incurred in connection with such Litigation, unless such
Person acted fraudulently or with willful misconduct.  No amendment of this Section 16.13 shall affect the rights of
the parties indemnified hereunder which exist as of the date of such amendment.


 


ARTICLE 17

DISPUTE RESOLUTION


 


17.1.                     Dispute Resolution.  Any dispute arising
out of or relating to this Agreement shall be resolved in accordance with the
procedures specified in this Section 17.1,
which shall be the sole and exclusive procedure for the resolution of any such
dispute.


 


17.1.1              Negotiation Between Executives. 
The Members shall attempt in good faith to resolve any dispute arising
out of or relating to this Agreement promptly by direct negotiation between
executives who have authority to settle the controversy and who are at a higher
level of management than the persons with direct responsibility for
administration of this Agreement, unless there is no executive of a higher
level.  Any party may give the other
party written notice of any dispute not resolved in the normal course of
business.  Within fifteen (15) days after
delivery of the notice, the receiving party shall submit to the other a written
response.  The notice and the response
shall include:  (a) a statement of
each party’s position and a summary of arguments supporting that position; and,
(b) the name and title of the executive who will represent that party and of
any other person who will accompany the executive.  Within thirty (30) days after delivery of the
disputing party’s notice, the executives of each Member shall meet at a
mutually acceptable time and place, and thereafter as often as they reasonably
deem necessary, to attempt to resolve the dispute.  All reasonable requests for information made
by one party to the other will be honored. 
All negotiations pursuant to this clause are confidential and shall be
treated as compromise and settlement negotiations for purposes of applicable
rules of evidence.


 


35





















 


17.1.2              Mediation With Mutually Agreed-Upon Neutral. 
If the dispute has not been resolved by negotiation within forty-five
(45) days of the disputing party’s notice, or if the Members fail to meet
within twenty (20) days, the Members shall submit the dispute to non-binding
mediation under the then-current CPR Institute for Dispute Resolution’s (“CPR”) Model Mediation Procedure for
Business Disputes, and endeavor (but not be obligated) to settle the dispute in
such mediation.  CPR’s address at the
time of this Agreement is 366 Madison Avenue, 14th Floor, New York,
New York 10017 (212-949-6490) and its website is “www.cpradr.org.”  The Members agree to use their reasonable best
efforts and good faith to agree mutually on a mediator, to be selected from the
CPR Technology Panel of Neutrals.  If the
Members fail to select a mutually acceptable mediator within thirty (30) days
after either party’s notice to the other party that they request non-binding
mediation pursuant to this subsection, CPR will appoint a mediator from the
Technology Panel.


 


17.1.3              Arbitration.  All disputes arising out of or relating to
this Agreement not resolved pursuant to non-binding Mediation within thirty
(30) days or as this time period may be extended by written agreement of the
Members shall be settled finally in an arbitration conducted under the Rules of
Arbitration of the International Chamber of Commerce (“ICC”) and as provided in this Section 17.1.3.


 


(a)                                  The arbitration proceedings shall be conducted in New
York, New York, U.S.A.


 


(b)                                 The arbitration proceedings shall be governed by the
laws of New York.


 


(c)                                  The language of the arbitration proceedings shall be
English.


 


(d)                                 The arbitral tribunal shall consist of three (3)
arbitrators, one (1) of which shall be selected by SKTI and one (1) of which
shall be selected by EarthLink.  The
third arbitrator shall be selected by the two (2) arbitrators appointed by SKTI
and EarthLink.


 


(e)                                  The International Bar Association’s Rules on the Taking
of Evidence in International Commercial Arbitration shall apply together with
the ICC Rules governing any submission to arbitration incorporated in this
Agreement.


 


(f)                                    Every award shall be binding on the Members.  By submitting the dispute to arbitration
under the ICC Rules, the Members undertake to carry out any award without delay
and shall be deemed to have waived their right to any form of recourse insofar
as such waiver can validly be made.


 


(g)                                 This agreement to arbitrate shall be binding on the
Members and their respective successors, assigns and Affiliates.


 


36





















 


(h)                                 The prevailing party in any arbitration proceeding
conducted pursuant to this Agreement may recover its reasonable fees both for
legal representation and related costs in any action to enforce this Agreement
in any judicial or arbitration proceeding.


 


(i)                                     The Members waive any right or claim to punitive or
exemplary damages and agree that punitive or exemplary damages are not
within the contemplation of this Agreement. 
No arbitral tribunal may order an award consisting in whole or in part
of punitive or exemplary damages.


 


17.1.4              Tolling of Statutes of Limitation.  All applicable
statutes of limitation and defenses based on the passage of time shall be
tolled while the procedures specified in Section 17.1.2 and Section 17.1.3
are pending.  The Members will take such
action, if any, required to effectuate such tolling.


 


17.2.                     Right to Injunctive Relief Before Appointment of Arbitrators.  With respect to any violations of this
Agreement which would cause or might cause irreparable injury to any one of the
parties to this Agreement, any party may, in addition to any other rights under
this Agreement and notwithstanding the dispute resolution procedures including,
particularly, the arbitration agreement contained in this Section 17.2, seek specific performance of
this Agreement and injunctive relief in any court of competent jurisdiction
against any ongoing violation of this Agreement.  Prior to the appointment of the arbitrators
pursuant to the arbitration agreement, any party hereto may seek provisional or
interim measures from any court of competent jurisdiction.  After the appointment of the arbitrators, the
arbitrators shall have exclusive power to consider and grant requests for
provisional or interim measures.


 


ARTICLE 18

MISCELLANEOUS


 


18.1.                     Governing Law.  This Agreement and the rights and obligations
of the Members shall be governed by and construed in accordance with and
subject to the laws of the State of Delaware.


 


18.2.                     Notices.  All notices, requests, claims, demands and
other communications hereunder shall be in writing and shall be deemed given
(i) on the first calendar day following the date of delivery in person or by
telecopy (in each case with telephonic confirmation of receipt by the
addressee), (ii) on the first calendar day following timely deposit with an
overnight courier service, if sent by overnight courier specifying next day
delivery or (iii) on the first calendar day that is at least five (5) days following deposit in the
mails, if sent by first class mail, to the Parties at the following addresses
(or at such other address for a party as shall be specified by like notice):


 


37





















 


If to SKTI:


 


SK Telecom International, Inc.


The Concourse IV


1735 Technology Drive


8th Floor


San Jose, CA 95110


Attention: 
Brian Kim, President


Facsimile: 
(408) 975-9222


 


with a copy to:


 


SK Telecom
Co., Ltd.


11,
Euljiro2-ga, Jung-gu


Seoul,
100-999, Korea


Attention:  Mr. Seung – Kook Synn


Facsimile:  (822) 6100-7966


 


with a copy to:


 


Paul Hastings Janofsky & Walker LLP


21-22/F Bank of China Tower


1 Garden Road


Bank of China


Hong Kong


Attention: 
Jong Han Kim


Facsimile: 
(852) 2524-2131


 


If to EarthLink:


 


EarthLink, Inc.


1375 Peachtree Street, N.E.


Atlanta, Georgia  30309


Attention: 
Chief Executive Officer


Facsimile: 
(404) 892-7616


Copy to: 
General Counsel


 


38





















 


with a copy to:


 


Hunton &
Williams LLP


600 Peachtree
Street, N.E., Suite 4100


Atlanta,
Georgia 30308


Attention:
Tinley W. Anderson, III


Facsimile:
(404) 602-9050


 


If to the Operating Company:


 


SK-EarthLink LLC


1375 Peachtree Street, N.E.


Atlanta, Georgia  30309


Attention: 
CEO


Facsimile:                                       


 


with a copy to:


 


SK-EarthLink Management Corp.


1375 Peachtree Street, N.E.


Atlanta, Georgia  30309


Attention: 
Legal Department


Facsimile:                                  


 


18.3.                     Compliance with Applicable Laws.  The Operating
Company shall provide each Class B Member with access to all of the books,
records and other information of the Operating Company necessary to permit each
such Class B Member to satisfy its compliance obligations under the
Sarbanes-Oxley Act of 2002 and under all other applicable state, federal and
foreign laws.


 


18.4.                     Severability.  The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof.  If any provision of this Agreement, or the
application thereof to any Person or any circumstance, is invalid or
unenforceable, (i) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and enforceable, the
intent and purpose of such invalid or unenforceable provision and (ii) the
remainder of this Agreement and the application of such provision to other
Persons or circumstances shall not be affected by such invalidity or
unenforceability, nor shall such invalidity or unenforceability affect the
validity or enforceability of such provision, or the application thereof, in
any other jurisdiction.


 


18.5.                     Counterparts.  For the convenience of the Parties hereto,
this Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original and all of which shall together constitute
the same agreement.


 


39





















 


18.6.                     Headings.  All section headings are for convenience of
reference only and are not part of this Agreement, and no construction or
reference shall be derived therefrom.


 


18.7.                     Successors and Assigns.  This Agreement shall
be binding upon and inure to the benefit of the Members and their respective
successors and permitted assigns and shall not be assignable except to the
extent expressly permitted hereby and any purported assignment of this
Agreement or of any Membership Units in violation of this Agreement shall be
null and void and of no force or effect. 
The rights and obligations under this Agreement shall be assigned by a
Member to a transferee in connection with the Transfer to such transferee
pursuant to Section 4.


 


18.8.                     Entire Agreement; Amendment; Waiver.  This Agreement
(including any exhibits and schedules hereto) and the Ancillary Agreements
(including any exhibits and schedules thereto), supersede all prior agreements,
written or oral, among the Members with respect to the subject matter hereof
and thereof and contain the entire agreement among the Members with respect to
the subject matter hereof and thereof. 
This Agreement may not be amended, supplemented or modified, and no
provisions hereof may be modified or waived, except by an instrument in writing
signed by the Management Company and each Member owning more than ten percent
(10%) of the Total Outstanding Shares. 
No waiver of any provisions hereof by any Member shall be deemed a
waiver of any other provisions hereof by any such Member, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such Member.


 


18.9.                     No Relief of Liabilities.  No Transfer by a
Member of Beneficial Ownership of any JV Securities shall relieve such Member
of any liabilities or obligations to the Operating Company or the other Member,
that arose or accrued prior to the date of such Transfer.


 


18.10.              Further Assurances.  The Parties hereto shall at any time, and from
time to time execute and deliver such additional instruments and other
documents and shall at any time, and from time to time take such further
actions as may be necessary or appropriate to effectuate, carry out and comply
with all of the terms of this Agreement and the transactions contemplated
hereby.


 


18.11.              Third
Party Beneficiaries.  NOTHING IN THIS AGREEMENT, EXPRESS OR IMPLIED,
IS INTENDED TO CONFER UPON ANY THIRD PARTY ANY RIGHTS OR REMEDIES OF ANY NATURE
WHATSOEVER UNDER OR BY REASON OF THIS AGREEMENT AND THE MANAGEMENT COMPANY
SHALL HAVE NO DUTY OR OBLIGATION TO ANY CREDITOR OF THE OPERATING COMPANY TO
REQUEST AND THE MEMBERS SHALL HAVE NO OBLIGATION TO ANY CREDITOR TO MAKE
SCHEDULED OR ADDITIONAL CONTRIBUTIONS TO THE CAPITAL OF THE OPERATING COMPANY.


 


[Signature page to follow]


 


40





















 


IN
WITNESS WHEREOF, the Initial Members have executed
this Agreement as of the date first above written.


 


	
   

  	
  EARTHLINK, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SK TELECOM
  INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SK-EARTHLINK
  MANAGEMENT CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					



 


41





















 


Schedule 9.1.1


 


	
  Member

  	
   

  	
  Percentage

  Interest

  	
   

  	
  Initial Capital

  Contributions

  	
   

  	
  Non-Cash

  Contributions

  	
   

  	
  Membership

  Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SKTI

  	
   

  	
  49.9999998

  	
  %

  	
  $

  	
  220,000,000.00

  	
   

  	
  $

  	
  0

  	
   

  	
  50,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Net

  	
   

  	
   

  	
   

  
	
  EarthLink

  	
   

  	
  49.9999998

  	
  %

  	
  $

  	
  180,000,000.00

  	
   

  	
  $

  	
  40,000,000.00

  	
   

  	
  50,000,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Management Company

  	
   

  	
  0.0000004

  	
  %

  	
  $

  	
  [                     

  	
  ]

  	
  $

  	
  0

  	
   

  	
  2

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  100.00

  	
  %

  	
   

  	
   

  	
   

  	
   

  	
  100,000,002