Exhibit 10.3


 


FORM
OF CERTIFICATE OF INCORPORATION


 


OF


 


SK-EARTHLINK
MANAGEMENT CORP.


 


ARTICLE 1
NAME.


 


The name of the corporation is:  SK-EarthLink
Management Corp.


 


ARTICLE 2
REGISTERED
AGENT AND OFFICE.


 


The name of the registered agent of the Management Company is The
Corporation Trust Company and its registered office is located at Corporation
Trust Center, 1209 Orange Street, in the City of Wilmington, Delaware, County
of New Castle.


 


ARTICLE 3
PURPOSE OF THE
MANAGEMENT COMPANY.


 


The purpose of the Management Company is to engage in the Business,
including the provision and development of the Products and Services.  The Management Company is authorized and
empowered to do any and all acts and things necessary, appropriate, proper,
advisable, incidental to or convenient for the furtherance and accomplishment
of the purposes of the Management Company as set forth in this Article 3 and for the protection and
benefit of the Management Company and its Subsidiaries.  All capitalized terms used in this Certificate
and not otherwise defined shall have the meanings ascribed to them in Article 10.


 


ARTICLE 4
CAPITAL STOCK.


 


4.1           Authorized Capital Stock. 
The Management Company shall have the authority to issue two hundred
million four (200,000,004) shares of its capital stock consisting of:  (a) one hundred eighty million two
(180,000,002) shares of Class A Common Stock, par value $0.01 per share
(the “Class A
Common Stock”);
(b) two (2) shares of Class B Common Stock, par value $0.01 per share (the
“Class B
Common Stock”)
and (iii) twenty million (20,000,000) shares of Preferred Stock, par value
$0.01 per share (the “Preferred Stock”),
issuable in one or more series as hereinafter provided.  The Class A Common Stock and the
Class B Common Stock shall hereinafter collectively be called the “Common Stock”.  The number of authorized shares of any class
of capital stock of the Management Company may be increased or decreased (but
not below the number of shares thereof then outstanding) upon:  (a) the affirmative vote of the holders of a
majority of the voting power of such class of capital stock 


 





















 


of the Management Company, and (b) the
unanimous approval of the holders of Class B Common Stock, if outstanding,
in each case voting separately as a class.


 


4.2           Terms of Common Stock. 
All shares of Common Stock shall be identical in all respects and shall
entitle the holders thereof to the same rights and privileges, and shall be
subject to the same qualifications, limitations and restrictions thereof,
except as otherwise provided in this Certificate of Incorporation (this “Certificate”) or as otherwise required by
the DGCL.


 


4.3           Voting Rights. 
The holders of shares of Common Stock shall have the voting rights set
forth in this Article 4.3
and elsewhere in the Certificate.


 


4.3.1        Class A Common Stock. 
Each holder of Class A Common Stock shall be entitled to one vote for
each share of Class A Common Stock held by such holder on all matters submitted
to a vote of Stockholders, other than matters reserved exclusively to holders
of another class of capital stock.  The
holders of Class B Common Stock, that also hold shares of Class A Common Stock,
shall be entitled to vote their shares of Class A Common Stock, but shall not
be entitled to the increased voting multiple described in Section 4.3.2, below, on any matter reserved
exclusively to holders of Class A Common Stock.


 


4.3.2        Class B Common Stock. 
In all matters reserved exclusively to holders of Class B Common Stock,
each holder of Class B Common Stock shall be entitled to one vote for each
share of Class B Common Stock held by such holder, and the affirmative vote of
all of the outstanding shares of Class B Common Stock shall be required to
approve such matter.  Each holder of
Class B Common Stock shall be entitled to an aggregate number of votes for
all shares of Class B Common Stock held by such holder, on all matters
submitted to a vote of the Stockholders, other than matters reserved
exclusively to holders of Class A Common Stock, Class B Common Stock or any
other class of stock, equal to the difference between (a) ten (10) multiplied
by the aggregate number of:  (i) the
shares of Class A Common Stock obtained if all shares of Class B
Common Stock, Membership Units and shares of convertible Preferred Stock of the holder were then
converted in accordance with Articles 5.1, 5.2
and 5.4, respectively, and (ii) the
shares of Class A Common Stock held by such Class B Common
Stockholder and (b) the shares of Class A Common Stock held by such Class B
Common Stockholder.


 


4.3.3        Voting as a Single Class. 
Except as otherwise expressly required in this Certificate or the
By-Laws or by applicable law, the holders of shares of Common Stock shall vote
together as one class on all matters submitted to a vote of stockholders of the
Management Company (or, if any holders of shares of Preferred Stock are
entitled to vote together with the holders of Common Stock, then as a single
class with such holders of shares of Preferred Stock).


 


4.3.4        Cumulative Voting. 
There shall be no cumulative voting.


 


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4.4           Dividends and Distributions. 
The Management Company shall pay dividends and make distributions to the
holders of its Common Stock as set forth in this Article 4.4.


 


4.4.1        Common Stock Dividends. 
Subject to the preferences applicable to Preferred Stock, if any,
outstanding at any time, the holders of shares of Common Stock shall be
entitled to receive such dividends and other distributions in cash, property or
shares of stock of the Management Company as may be declared thereon, upon the
prior approval of the Board from time to time out of assets or funds of the
Management Company legally available; provided, that, subject to
the provisions and restrictions of this Article 4.4, the Management Company shall not pay or make dividends or
distributions in shares of Common Stock.


 


4.4.2        Dividends of Class B Common Stock. 
There shall be no dividends or other distributions payable in
Class B Common Stock including any distributions pursuant to stock split
or divisions of Class B Common Stock or any Voting Securities convertible
into Class B Common Stock.


 


4.4.3        Dividends of Voting Securities. 
In the case of dividends or other distributions consisting of Voting
Securities of any corporation or other Entity, which is a Subsidiary of the
Management Company or any Voting Securities convertible into the same, the
Management Company shall declare and pay such dividends in two separate classes
of such Voting Securities, identical in all respects, except that:  (a) the voting rights of each such security
paid to the holders of Class B Common Stock, when compared to the voting
rights of each such security paid to the holders of Class A Common Stock,
shall have proportionately greater voting rights determined pursuant to the
same formula as provided in Article 4.3.2,
above; (b) such security paid to the holders of Class B Common Stock shall
convert into the security paid to the holders of Class A Common Stock upon
the same terms and conditions applicable to the conversion of Class B
Common Stock into Class A Common Stock and shall have the same
restrictions on ownership applicable to the ownership of Class B Common
Stock; and (c) the respective voting rights of each such security paid to
holders of Class A Common Stock and Class B Common Stock with respect
to the election of directors shall otherwise be as comparable as is
practicable, as determined by the Board, to those of the Class A Common
Stock and Class B Common Stock, respectively.


 


4.5           Preferred Stock. 
The rights and obligations of the holders of Preferred Stock shall be
set forth and provided by this Article 4.5.
The Board, with the consent of the Class B Directors in accordance with Article 6.1, may issue shares of Preferred
Stock in one or more series from time to time, and, fix by resolution the
designations, powers, preferences and rights, and the qualifications,
limitations and restrictions of the shares of each series of Preferred Stock,
including without limitation the following:


 


(a)           the
distinctive serial designation of such series which shall distinguish it from
other series;


 


(b)           the
number of shares included in such series;


 


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(c)           the
dividend rate (or method of determining such rate) payable to the holders of
the shares of such series, any conditions upon which such dividends shall be
paid and the date or dates upon which such dividends shall be payable;


 


(d)           whether
dividends on the shares of such series shall be cumulative and, in the case of
shares of any series having cumulative dividend rights, the date or dates or
method of determining the date or dates from which dividends on the shares of
such series shall be cumulative;


 


(e)           the
amount or amounts which shall be payable out of the assets of the Management
Company to the holders of the shares of such series upon voluntary or
involuntary liquidation, dissolution or winding up the Management Company, and
the relative rights of priority, if any, of payment of the shares of such
series;


 


(f)            the
price or prices at which, the period or periods within which and the terms and
conditions upon which the shares of such series may be redeemed, in whole or in
part, at the option of the Management Company or at the option of the holder or
holders thereof or upon the happening of a specified event or events;


 


(g)           the
obligation, if any, of the Management Company to purchase or redeem shares of
such series pursuant to a sinking fund or otherwise and the price or prices at
which, the period or periods within which and the terms and conditions upon
which the shares of such series shall be redeemed or purchased, in whole or in
part, pursuant to such obligation;


 


(h)           whether
or not the shares of such series shall be convertible or exchangeable, at any
time or times, at the option of the holder or holders thereof or at the option
of the Management Company or upon the happening of a specified event or events,
into shares of any other class or classes or any other series of the same or
any other class or classes of stock of the Management Company, and the price or
prices or rate or rates of exchange or conversion and any adjustments
applicable thereto; and


 


(i)            whether
or not the holders of the shares of such series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the terms of such
voting rights.


 


ARTICLE 5
CONVERSIONS;
EXCHANGES AND ISSUANCE OF STOCK.


 


5.1           Conversion of Class B Common Stock.


 


5.1.1        Voluntary Conversion. Each holder of Class B
Common Stock shall be entitled to convert, at any time and from time to time,
any or all of the shares of such holder’s Class B Common Stock into
validly issued, fully paid and non-assessable shares of 


 


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Class A Common Stock.  The number of shares of Class A Common Stock
obtained from the conversion of the Class B Common Stock shall be determined by
multiplying the number of shares of Class B Common Stock to be converted by the
Class B Conversion Rate then in effect. 
Such right shall be exercised by the holder of the Class B Common Stock
to be converted by surrendering the certificate representing the shares of
Class B Common Stock to be converted 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 the shares of Class B Common Stock
are being presented for conversion. Upon exercise of such conversion right, the
Management Company shall issue the appropriate number of shares of Class A Common
Stock to the holder of the shares of Class B Common Stock being converted and
reflect the Transfer on the books of the Management Company.  The “Class B Conversion Rate” shall be initially set at one
(1).  In the event there is any stock
split (as set forth in Article 5.13),
dividend, combination (as set forth in Article 5.14) or similar transaction related
to the Class A Common Stock, the Class B Conversion Rate in effect immediately
after such event shall be equal to the Class B Conversion 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.


 


5.1.2        Involuntary Conversion.  Upon a Type A Triggering Event, the
Class B Common Stock of the Triggering Party shall be automatically
converted to Class A Common Stock as provided in Article 5.12.1.


 


5.2           Exchange of
Membership Units.  As provided in the Operating Agreement, a
holder of Membership Units 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.  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 (as set forth in Article 5.13),
dividend, combination (as set forth in Article 5.14)
or similar transaction related to the Class A Common Stock in which there is
not an identical dividend, distribution, 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, dividend, distribution, combination or similar transaction related
to the 


 


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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
divided by (b) the number of Membership Units outstanding immediately after
such event.


 


5.3           Offering of Class A Common Stock. 
The Board, with the consent of the Class B Directors in accordance
with Article 6.1, may issue shares of
Class A Common Stock in a Public Offering, and shall issue shares of
Class A Common Stock in a Public Offering as required under the
Registration Rights Agreement.  Upon
completion of a Public Offering of Class A Common Stock by the Management
Company, the Management Company shall contribute the net proceeds from such
Public Offering of Class A Common Stock to the Operating Company, and, in
exchange shall receive a number of Membership Units from the Operating Company
and, if applicable, the selling Class A Common Stock holder, equal to the
number of shares of Class A Common Stock issued in the Public Offering determined
by dividing the number of Class A Common Stock issued in the Public Offering by
the Membership Unit Exchange Rate then in effect.


 


5.4           Issuance and Conversion of Preferred Stock. 
The Board, with the consent of the Class B Directors in accordance
with Article 6.1, may issue shares of Preferred
Stock designated as provided in Article 4.5,
above.  If the Board issues Preferred
Stock that is convertible to shares of Class A Common Stock, then upon
completion of an issuance, the Management Company shall contribute the net
proceeds from the issuance to the Operating Company, and, in exchange, the
Management Company shall receive 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 then in effect 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.


 


5.5           Equity Compensation Plan.  The Board, with the consent of the
Class B Directors in accordance with Article 6.1, may issue options to purchase shares of Class A
Common Stock (“Class A Options”)
in accordance with the terms of the Equity Compensation Plan.  The recipient of such Class A Options (the “Option Holder”) may exercise its Class A
Options by paying to the Management Company an amount equal to the exercise
price of the Class A Options then exercised. 
Upon exercise of such Class A Options, the Management Company shall
contribute the proceeds received from the Option Holder to the Operating
Company and, in exchange shall receive a number of Membership Units from the
Operating Company equal to the number of shares of Class A Common Stock
issued in connection with the exercise of the Class A Options divided by the
Membership Unit Exchange Rate then in effect.


 


5.6           Surrender of Certificates upon Conversion or
Exchange.  As promptly as practicable following the
surrender of certificates representing shares of Class B Common Stock,
Membership Units or convertible Preferred Stock in the manner provided in Articles 5.1, 5.2 and 5.4, respectively, the Management Company will deliver a certificate
representing the number of shares of Class A Common Stock issuable upon
such conversion or exchange, issued in the name of the holder.  Such conversion or exchange shall be deemed
to have been effected immediately prior to the close of business on the date of
the surrender of the certificate or 


 


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certificates representing shares of
Class B Common Stock, Membership Units or convertible Preferred
Stock.  Upon the date any such conversion
or exchange is made or effected, all rights of the holder of such shares of
Class B Common Stock, Membership Units or convertible Preferred Stock in
respect of such shares or units shall cease. 
The Person in whose name such the certificate representing the shares of
Class A Common Stock are to be issued shall be treated for all purposes as
having become the record holder of such shares of Class A Common Stock.


 


5.7           Reservation of Class A Common Stock. 
The Management Company shall at all times reserve and keep available out
of its authorized but unissued Class A Common Stock a sufficient number of
shares to permit the conversion of the outstanding shares of Class B
Common Stock (as provided in Article 5.1),
the exchange of Membership Units (as provided in Article 5.2) and the conversion of shares of convertible Preferred
Stock (as provided in Article 5.4)
for shares of Class A Common Stock; provided, that nothing
contained herein shall preclude the Management Company from satisfying its
obligations in respect of such conversions and exchanges by delivery of
purchased shares of Class A Common Stock which are held in the treasury of
the Management Company or by other holders thereof.


 


5.8           Stock Certificates. 
The issuance of certificates for shares of Class A Common Stock upon
conversion of shares of Class B Common Stock, exchange of Membership Units
or conversion of Preferred Stock shall be made without charge to the holders of
such shares for any stamp or other similar transfer tax in respect of such
issuance; provided, that if any such certificate is to be issued
in a name other than that of the holder of the shares of Class B Common
Stock converted, the Membership Units exchanged or shares of Preferred Stock
converted, then the Person requesting the issuance thereof shall, prior to such
issuance, pay to the Management Company the amount of any tax that may be
payable in respect of any Transfer involved in such issuance or shall establish
to the satisfaction of the Management Company that such tax has been paid or is
not payable.


 


5.9           Reissuance of Class B Common Stock. 
Shares of Class B Common Stock that are converted into shares of
Class A Common Stock as provided herein shall continue to be authorized
shares of Class B Common Stock and available for reissuance by the Management
Company; provided, that no shares of Class B Common Stock
shall be reissued except as expressly authorized by the Board and any remaining
holder of Class B Common Stock.


 


5.10         Transfer of Class B Common Stock. 
For so long as there are two holders of Class B Common Stock, a holder
of Class B Common Stock shall not Transfer its shares of Class B
Common Stock except as provided in the Stockholders’ Agreement.


 


5.11         Preemptive Rights.  Except for issuances of Class A Common
Stock in a Public Offering, employee stock purchase, stock option or dividend
reinvestment plan, each holder of Class B Common Stock shall have the
right, in accordance with this Article 5.11,
to purchase from the Management Company sufficient shares of Class A
Common Stock to ensure that its percentage of Total Outstanding Shares will not
be reduced in connection with such issuance, whether by private sale of Class A
Common Stock or otherwise.  In the event
a holder of Class B Common Stock elects to exercise its rights under this Article 5.11, the purchase price 


 


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per share of Class A Common Stock shall
be equal to the consideration paid for the Class A Common Stock issued to
the other party(ies).


 


5.12         Events Triggering Conversion of Class B
Common Stock.  If a Type A Triggering
Event or Type B Triggering Event (each defined below and each a “Triggering Event”) occurs, the party triggering
the Triggering Event (the “Triggering Party”)
shall have the rights and obligations set forth in this Section 5.12.


 


5.12.1      Type A Triggering Event. 
A “Type A
Triggering Event”
shall be deemed to have occurred if a holder of Class B Common Stock,
together with its Subsidiaries, ceases to own, directly or indirectly, at least
ten percent (10%) of the Total Outstanding Shares and, after written notice
from the other holder of Class B Common Stock (or the Management Company
if there is only one holder of Class B Common Stock), fails to acquire
sufficient additional Class A Common Stock, Membership Units or
Class B Common Stock, as the case may be, within thirty (30) days
following receipt of such notice to restore such holder’s percentage ownership
of the Total Outstanding Shares to at least ten percent (10%).  In no event shall the Management Company, the
Operating Company or any other holder of JV Securities be required to sell any
JV Securities to alleviate such deficit. 
Upon the occurrence of a Type A Triggering Event, the following
shall immediately and automatically occur: 
(a) the Class B Common Stock of the Triggering Party shall convert
into Class A Common Stock, (b) the term of the Class B Directors
appointed by the Triggering Party shall end, (c) all rights of the Triggering
Party associated with ownership of the Class B Common Stock shall terminate
and (d) all Strategic Decisions shall be made by the remaining Class B
Directors and any Class A Directors as provided in Article 6.  Once a Type A Triggering Event has
occurred with respect to a Triggering Party, it shall continue indefinitely.


 


5.12.2      Type B Triggering Event. 
A “Type B
Triggering Event”
shall be deemed to have occurred if a holder of Class B Common Stock,
together with its Subsidiaries, ceases to own, directly or indirectly, such
number of the Total Outstanding Shares equal to at least fifty percent (50%) of
the other Class B Common Stock holder’s ownership of the Total Outstanding
Shares, and fails, after written notice from the other holder of Class B
Common Stock, to acquire additional Class A Common Stock, Membership Units
or Class B Common Stock, as the case may be, within thirty (30) days after
the receipt of such notice so as to no longer own less than fifty percent (50%)
of the other holder’s ownership of the Total Outstanding Shares.  In no event shall the Management Company, the
Operating Company or any other holder of JV Securities be required to sell any
JV Securities to alleviate such deficit. 
Upon the occurrence of a Type B Triggering Event, the following
shall immediately and automatically occur: 
(a) the term of one (1) of the Class B Directors elected by the
Triggering Party shall end and such Director (as selected by the Triggering
Party) shall cease to serve on the Board and (b) all Strategic Decisions shall
be made by the remaining Class B Directors and any Class A Directors
as provided in Article 6.  Once a Type B Triggering Event has
occurred with respect to a Triggering Party, it shall continue until the first
to occur of the following:  (i) the
Triggering Party owns, directly or indirectly, such number of the Total
Outstanding Shares equal to at least fifty percent (50%) of the other
Class B Common Stockholder’s ownership of the Total Outstanding Shares or
(ii) the non-Triggering Party ceases to hold any shares of Class B Common
Stock.  Once the Type B Triggering Event
ceases to exist, the following shall automatically occur:  (x) the Triggering Party shall be entitled to
elect three (3) Class B Directors 


 


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and fill any vacancy of Class B
Directors to reach a total of three (3) Class B Directors, and (y) all
Strategic Decisions shall be made by the Class B Directors and any
Class A Directors as provided in Article 6.


 


5.13         Stock Splits. 
The Management Company shall not in any manner subdivide or combine (by
any stock split, stock dividend, reclassification, re-capitalization, merger or
otherwise) the outstanding shares of Class B Common Stock.  If the Management Company shall subdivide or
combine (by any stock split, stock dividend, reclassification, re-capitalization,
merger or otherwise) the outstanding shares of Class A Common Stock, then
the Management Company shall adjust the Class B Conversion Rate by which
Class B Common Stock and the conversion rate by which the Preferred Stock
(in accordance with Article 5.4)
converts into shares of Class A Common Stock to account for the change in
number of shares of Class A Common Stock. 
The Management Company shall cause the Operating Company to adjust the
Membership Unit Exchange Rate accordingly if there is:  (a) any subdivision or combination (by any
unit split, unit distribution, reclassification, re-capitalization, merger or
otherwise) of the Membership Units that is not accompanied by an identical
subdivision or combination of the Class A Common Stock; or (b) any subdivision
or combination (by and stock split, stock dividend, reclassification,
re-capitalization, merger or otherwise) of the Class A Common Stock that
is not accompanied by an identical subdivision or combination of the Membership
Units; in each such case according to Article 5.2.


 


5.14         Mergers and Consolidation. 
In the event that the Management Company, with the approval of the Board
and consent of the Class B Directors in accordance with Article 6.1, enters into any consolidation,
merger, combination or other transaction in which shares of Common Stock are
exchanged for or converted into other stock or securities, cash or other
property, then the shares of each class of Common Stock shall be exchanged for
or converted into either (a) the same amount of stock, securities, cash or
other property, as the case may be, for which each share of any other class of
Common Stock is exchanged or converted (and with regard to the Class B Common
Stock after giving effect to the Class B Conversion Rate); provided, that
if shares of Common Stock are exchanged for shares of capital stock, such
shares so exchanged may differ to the extent and only to the extent that the
Class A Common Stock and the Class B Common Stock differ as provided
herein, or (b) if holders of each class of Common Stock are to receive
different distributions of stock, securities, cash or other property (other
than as contemplated by Article 5),
an amount of stock, securities, cash or other property per share having a
value, as determined by an independent investment banking firm of national
reputation selected by the Board, equal to the value per share for which each
share of any other class of Common Stock is exchanged.  Further, the Management Company shall not
enter into such consolidation, merger, combination or other transaction, unless
the acquiring Entity agrees to preserve all rights of the holders of Membership
Units set forth in the Operating Agreement.


 


5.15         Effect of Reclassification or Similar
Transaction.  In the event of a reclassification or other
similar transaction approved in accordance with Articles 5.13 and 5.14 as
a result of which the shares of Class A Common Stock are converted into
another security, then a holder of Class B Common Stock shall be entitled
to receive upon conversion (in accordance with the Class B Conversion Rate) the
amount of such security that such holder would have received if such conversion
had occurred immediately prior to the record date of such reclassification or
other similar transaction.


 


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ARTICLE 6
BOARD OF
DIRECTORS AND GOVERNANCE.


 


6.1           Composition of the Board. 
The size and manner of electing the members of the Board shall be
determined as set forth in this Article 6.1.


 


6.1.1        Initial Composition of the Board. 
The Board shall initially consist of six (6) directors.  Subject to Article 6.1.2, each holder of Class B
Common Stock shall be entitled to elect three (3) of the six (6) initial
directors.  The authorized number of
directors on the Board shall, from time to time, be increased or decreased (a)
by the Board, with the unanimous consent of the Class B Directors, and (b)
upon the occurrence of certain events, as provided in this Article 6.1.  If the number of directors is changed, any
increase or decrease shall be apportioned among the classes of Common Stock
consistent with proportions set forth in this Article 6.1.


 


6.1.2        Class B Directors. 
For so long as there are any shares of Class B Common Stock
outstanding (regardless of the number of shares of Class A Common Stock
outstanding), the number of Class B Directors and manner of election of
the Class B Directors shall be as follows:


 


(a)           For so long as there
are any shares of Class B Common Stock outstanding, the number of
Class B Directors shall be six (6) with each holder of Class B Common
Stock electing three (3) of the Class B Directors, or, if there is only
one share of Class B Common Stock outstanding, then the sole holder of Class B
Common Stock shall elect all six (6) Class B Directors.  If a Type B Triggering Event occurs, the
number of Class B Directors shall be reduced by one (1) to five (5) for so
long as the Type B Triggering Event continues and the Triggering Party
shall be entitled to elect only two (2) Class B Directors.  If a Type A Triggering Event occurs, the
remaining holder of Class B Common Stock shall fill any vacancies of the Class
B Directors; and


 


(b)           If there is no
Class B Common Stock outstanding, there will be no Class B Directors
and all directors shall be elected by, and the number of directors shall be
determined by the holders of Class A Common Stock and Preferred Stock, if any,
voting together as a single class.


 


6.1.3        Class A Directors. 
For so long as there are any shares of Class B Common Stock outstanding,
upon a Public Offering, the holders of Class A Common Stock will be
entitled to elect up to three (3) independent Class A Directors as
provided hereinafter.  If the percentage
of Class A Common Stock held by holders, in the aggregate, other than a
holder of Class B Common Stock (or its Affiliates) is (a) greater than or
equal to ten percent (10%) of the Total Outstanding Shares, but less than or
equal to twenty percent (20%) of the Total Outstanding Shares, then the size of
the Board shall be increased to include one (1) Class A Director; (b)
greater than twenty percent (20%) of the Total Outstanding Shares, but less
than or equal to thirty-three percent (33%) of the Total Outstanding Shares,
then the size of the Board shall be increased to include two (2) Class A
Directors; and (c) greater than thirty-three percent (33%) of the Total
Outstanding Shares, then the size of the Board shall be increased to include
three (3) Class A Directors. Such Class A Directors must qualify as
independent pursuant to the 


 


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Securities Exchange Act of 1934, as amended,
the rules of any exchange upon which the Common Stock is traded and any other
rules or regulations promulgated by the Securities and Exchange Commission.


 


6.1.4        Written Ballots. 
Unless and except to the extent that the By-Laws of the Management
Company shall so require, the election of directors of the Management Company
need not be by written ballot.


 


6.2           Powers of the Board of Directors. 
The business and affairs of the Management Company shall be managed by
or under the direction of the Board in accordance with this Certificate, the
By-Laws and the Stockholders’ Agreement. 
The Board shall decide matters by a majority vote of a quorum of the
Board, except that Strategic Decisions (as defined in Article 8 of the
Stockholders’ Agreement) shall be approved as provided in Article 8 of the
Stockholders’ Agreement.


 


6.3           Removal of Directors. 
Directors may be removed from the Board as provided in this Article 6.3.


 


6.3.1        Class A Directors. 
A Class A Director may be removed at any time, with or without
cause, by a vote of the holders of the Class A Common Stock holding not
less than eighty-percent (80%) of the votes entitled to be cast for the
election of Class A Directors, voting separately as a class.


 


6.3.2        Class B Directors. 
A Class B Director may be removed at any time, with or without
cause, by the holder of Class B Common Stock that elected such Class B
Director.


 


6.4           Vacancies on the Board of Directors. 
Any vacancy occurring on the Board shall be filled as set forth in this Article 6.4.


 


6.4.1        Vacancies of Class A Directors. 
Any vacancies resulting from death, resignation, disqualification,
removal or other reasons with respect to a Class A Director shall be
filled by the affirmative vote of the remaining Class A Directors then in
office, even if less than a quorum of the Board or, if there shall not be any
remaining Class A Directors, by the holders of Class A Common Stock.


 


6.4.2        Vacancies in Class B Directors. 
Any vacancies resulting from death, resignation, disqualification,
removal or other cause with respect to a Class B Director shall be filled
by the holder of Class B Common Stock that elected such Class B
Director, unless otherwise provided in this Certificate.


 


6.4.3        Term of Substitute Directors. 
Any director elected in accordance with this Article 6.4 shall hold office until the next annual meeting of
stockholders and until such director’s successor shall have been duly elected
and qualified, or until such director’s term of office otherwise terminates.


 


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6.5           Quorum.  Quorum for any
meeting of the Board shall require the presence of a majority of the directors
and, for all matters requiring the approval of the Class B Directors, at
least one Class B Director elected by each holder of Class B Common
Stock.


 


6.6           Amendment, Restatement and Repeal of the
Certificate.  Unless there are no outstanding shares of
Class B Common Stock, any amendment, repeal or restatement of this
Certificate shall require (a) the approval of a majority of the shares of
Class A Common Stock, any voting Preferred Stock and Class B Common
Stock voting together as a single class and (b) the unanimous consent of the
holders of Class B Common Stock voting separately.  If there are no outstanding shares of
Class B Common Stock, the amendment, repeal or restatement of this
Certificate shall require the consent of at least two-thirds of the outstanding
shares of Class A Common Stock and any voting Preferred Stock voting
together as a single class.


 


6.7           Amendment of Bylaws. 
Unless there are no outstanding shares of Class B Common Stock, any
amendment or modification of the Bylaws shall require (a) the approval of a
majority of the Board and (b) the unanimous consent of the Class B
Directors voting separately.  If at any
time there are no Class B Directors, the amendment or modification of the
Bylaws shall require the consent of a majority of the Board.  Notwithstanding the foregoing, the
stockholders may amend or modify any provision of the By-Laws by:  (i) the affirmative vote of the holders of a
majority of the Class A Common Stock and Class B Common Stock voting
together as a single class; and (ii) if any Class B Common Stock is issued
and outstanding, by the affirmative vote of the holders of all of the
Class B Common Stock, voting separately as a class.


 


ARTICLE 7
DISSOLUTION.


 


7.1           Events Causing Dissolution. 
The Management Company shall be dissolved and its affairs wound up upon
the first to occur of the following:  (a)
the written consent of the holders of Class B Common Stock or, if there is
no Class B Common Stock outstanding, the majority vote of the Class A
Common Stock; (b) the occurrence of any event which makes it unlawful for the
Management Company to continue its operations or (c) the issuance of a decree
by any court of competent jurisdiction that the Management Company be dissolved
and liquidated.


 


7.2           Winding Up.  In the event of the
dissolution of the Management Company for any reason, the CEO, under the
direction of the Board, shall proceed promptly to wind up the affairs and
liquidate the assets of the Management Company. 
The Board shall have complete discretion to determine the time, manner and
terms of any sale of the Management Company property pursuant to such
liquidation.


 


7.3           Liquidation Rights. 
In the event of any dissolution, liquidation or winding-up of the
affairs of the Management Company, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of the
Management Company and after making provision for the holders of each series of
Preferred Stock, if any, and according to the terms of Preferred Stock, the
remaining assets and funds of the Management Company, if any, shall be divided
among and paid ratably to the holders of the shares of the 


 


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Common Stock or on an as-converted
basis.  For the purposes hereof, the
voluntary sale, conveyance, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all the property or
assets of the Management Company shall be deemed a voluntary liquidation,
dissolution or winding-up of the Management Company, but a consolidation or
merger of the Management Company with one or more other corporations shall not
be deemed to be a, voluntary or involuntary, liquidation, dissolution or
winding-up of the Management Company.


 


ARTICLE 8
OFFICER AND
DIRECTOR LIABILITY.


 


A director of the Management Company shall not be liable to the
Management Company or its stockholders for monetary damages for breach of
fiduciary duty as a director, except to the extent that such exemption from
liability or limitation thereof is not permitted under the DGCL as currently in
effect or as the same may hereafter be amended. 
No amendment, modification or repeal of this Article 8 shall adversely affect any right or protection
of a director that exists at the time of such amendment, modification or
repeal.


 


ARTICLE 9
SECTION 203
ELECTION.


 


The Management Company hereby expressly elects not to be governed by Section 203
of the DGCL.


 


ARTICLE 10
DEFINITIONS.


 


The following are the definitions used in this Certificate:


 


“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.


 


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


 


“Business” shall
mean the operation of businesses engaged in the development and marketing of
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 in the United States;
provided, however, that the Business shall not include any business or activity
that the Management Company is restricted from pursuing or engaging in pursuant
to the Operating Agreement.


 


“By-Laws” shall mean
the By-Laws of the Management Company.


 


“CEO” shall mean the
chief executive officer of the Management Company.


 


“Certificate” shall
have the meaning set forth in Article 4.2.


 


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“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 have the meaning set forth in Article 4.1.


 


“Class A Directors”
shall mean the directors of the Management Company elected to the Board by the
holders of Class A Common Stock.


 


“Class A Options”
shall have the meaning set forth in Article 5.5.


 


“Class B Common Stock”
shall have the meaning set forth in Article 4.1.


 


“Class B Conversion Rate”
shall have the meaning set forth in Article 5.1.


 


“Class B Directors”
shall mean the directors of the Management Company elected to the Board by the
holders of Class B Common Stock.


 


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


 


“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.


 


 “DGCL”
shall mean the Delaware General Corporation Law, as amended.


 


“EarthLink” shall
mean EarthLink, Inc., a Delaware corporation, and any permitted successor or
assigns.


 


“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.


 


“Equity Compensation Plan”
shall mean the benefits plan authorizing the Management Company to issue
options to purchase shares of Class A Common Stock.


 


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


 


“Management Company”
shall mean SK-EarthLink Management Corp., a Delaware corporation.


 


“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 the Operating Agreement.


 


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“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 the Operating Agreement and the Delaware
Limited Liability Company Act, together with the obligations of such Member to
comply with all the terms and provisions of the Operating Agreement.  The Membership Interests constitute one class
of limited liability company interest in the Operating Company.


 


“Membership Unit”
shall mean a fractional, undivided share of the Membership Interests of all
Members issued pursuant to the Operating Agreement.


 


“Membership Unit Exchange Rate”
shall have the meaning set forth in Article 5.2.


 


“Operating Agreement”
shall mean the operating agreement of the Operating Company, as amended from
time to time.


 


“Operating Company”
shall mean SK-EarthLink LLC, a Delaware limited liability company, or any
permitted successors or assigns.


 


“Option Holder”
shall have the meaning set forth in Article 5.5.


 


“Person” shall mean
any natural person or Entity.


 


“Preferred Stock”
has the meaning set forth in Article 4.1.


 


“Products and Services”
shall mean the products and services related to the Business.


 


“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 successor forms) under the Securities Act.


 


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


 


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


 


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


 


“SKT” shall mean SK
Telecom Co., Ltd., a corporation with limited liability organized under the
laws of the Republic of Korea, and its permitted successors and assigns.


 


“SKTI” shall mean SK
Telecom International, Inc., the wholly owned subsidiary of SKT located in the
United States.


 


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“Stockholder” shall
mean EarthLink and SKT and the successors of each.


 


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


 


“Strategic Decisions”
shall have the meaning set forth in Article 8 of the Stockholders’ Agreement.


 


“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.


 


“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.


 


“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 Stockholder.  However,
a Change of Control of a holder of Class B Common Stock shall not be
deemed to be a Transfer.


 


“Triggering Event”
shall have the meaning set forth in Article 5.12.


 


“Triggering Party”
shall have the meaning set forth in Article 5.12.


 


“Type A Triggering Event” shall have the
meaning set forth in Article 5.12.1.


 


“Type B Triggering Event” shall have the
meaning set forth in Article 5.12.2.


 


 “Voting
Securities” shall mean any securities entitled to vote
in the ordinary course in the election of directors or of Persons serving in a
similar governing capacity of any partnership, limited liability company or
other Entity, including the voting rights attached to such securities.


 


[Signatures on following page]


 


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IN WITNESS WHEREOF, SK-EarthLink
Management Corp. has caused this Certificate, which has been duly adopted by
the Board and consented to in writing and authorized by the holders of all of
the issued and outstanding shares entitled to vote thereon and duly adopted in
accordance with Sections 242 and 245 of the General Corporation Law of the
State of Delaware, to be signed and attested as of the         
day of                          ,
2005.


 


	
   

  	
  SK-EARTHLINK
  MANAGEMENT CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


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