Exhibit
10.5


 


FORM OF STOCKHOLDERS’ AGREEMENT


 




 


 





STOCKHOLDERS’
AGREEMENT


 


by and among


 


SK TELECOM CO., LTD.;


 


EARTHLINK, INC.;


 


and


 


SK-EARTHLINK
MANAGEMENT CORP.


 


 


Dated as of               
    , 2005




 


 





 





















 


THIS
STOCKHOLDERS’ AGREEMENT (this “Stockholders’ Agreement”) is dated as of                    ,
2005, by and among SK Telecom Co., Ltd.,
a corporation with limited liability organized under the laws of The Republic
of Korea (“SKT”), EarthLink, Inc.,
a Delaware corporation (“EarthLink”)
and SK-EarthLink Management Corp., a Delaware corporation (the “Management Company”).


 


WHEREAS,
the Management Company has authorized capital stock of two hundred million four
(200,000,004) shares, consisting of one hundred eighty million two
(180,000,002) shares of Class A Common Stock, $.0l par value per share
(the “Class A Common Stock”),
two (2) shares of Class B Common Stock, $.01 par value per share (the “Class B Common Stock”, and together
with the Class A Common Stock, the “Common
Stock”) and twenty million (20,000,000) shares of Preferred Stock,
$.01 par value per share (the “Preferred
Stock”);


 


WHEREAS,
SKTI, EarthLink and the Management Company are the sole members of SK-EarthLink
LLC, a Delaware limited liability company (the “Operating Company”);


 


WHEREAS,
the Operating Company is a joint venture established by EarthLink and SKT for
the purpose of developing and marketing branded wireless telecommunications
services, including, but not limited to, handsets, voice services, data
services (including CDMA laptop cards and related software), stand-alone and
other wireless services within the United States;


 


WHEREAS,
SKT and EarthLink each own 1 share of Class B Common Stock.  No shares of Class A Common Stock or
Preferred Stock are issued and outstanding; and


 


WHEREAS,
the Stockholders desire to restrict the transfer of JV Securities and provide
certain terms and conditions for the management and operation of the Management
Company.


 


NOW,
THEREFORE, for and in
consideration of the premises and mutual promises set forth herein, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:


 


ARTICLE 1

DEFINITIONS


 


1.1.         Certain Definitions.  Capitalized terms that are used but not
otherwise defined herein shall have the meanings given to them in the Operating
Agreement.  For the purposes of this
Stockholders’ Agreement, the following terms shall have the following meanings:


 


“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.


 


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


 





















 


“Acquiring
Party” shall mean the Class B Stockholder
purchasing the JV Securities of the other Class B Stockholder and the
Affiliates of the other Class B Stockholder pursuant to either the
buy-sell process set forth in Section 8.3.


 


“ASP
Items” shall have the meaning set forth in Section 6.5.


 


“Bankruptcy
Matter” shall mean a decision with respect to the
commencement of a voluntary case pursuant to Title 11 of the United States
Bankruptcy Code, the filing of a petition to take advantage of any other
federal or state laws relating to bankruptcy, insolvency, reorganization or
composition for adjustment of debts or the liquidation of the Operating Company
or the Management Company.


 


“Beneficial
Owner” shall mean a person deemed to have “Beneficial
Ownership” of any securities pursuant to Rule 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as amended, as such rules are in effect on the date of
this Stockholders’ 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, that no Stockholder shall be deemed the “Beneficial
Owner” or to have “Beneficial Ownership” of or to “Beneficially Own,” any
Membership Units or Shares of the other Stockholder solely by virtue of the
rights set forth in this Stockholders’ Agreement.


 


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


 


“Business
Plan” shall have the meaning set forth in Article 1
of the Operating Agreement.


 


“Buy-Sell
Closing” shall have the meaning set forth in Section 8.3.4.


 


“Buy-Sell
Price” shall have the meaning set forth in Section 8.3.1.


 


“Certificate
of Incorporation” shall mean the Certificate of
Incorporation of the Management Company filed with the Delaware Secretary of
State, as amended or restated from time to time.


 


“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
the Recitals.


 


“Class
A Director” shall have the meaning set forth in the
Certificate of Incorporation.


 


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


 


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


 


“Class
B Director” shall have the meaning set forth in the
Certificate of Incorporation.


 


“Class
B Stockholders” shall mean EarthLink and SKT and any
successor holder of the shares of Class B Common Stock.


 


“Common
Stock” shall have the meaning set forth in the
Recitals.


 


“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.


 


“Consenting
Party” shall have the meaning set forth in Section 8.3.


 


“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 entered into by and among SKT, SKTI and EarthLink as of
January 26, 2005.


 


“Contribution
Breach” shall mean a failure by either Stockholder to
make a scheduled cash contribution to the Operating Company in accordance with
the Contribution and Formation Agreement, Section 9.1.1 of the Operating
Agreement or as mutually agreed upon by the Stockholders.


 


“Contribution
Closing” shall mean “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.


 


“Deadlock
Matter” shall have the meaning set forth in Section 8.2.


 


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


 


“Directors”
shall mean the directors serving on the Board of Directors of the Management
Company.


 


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


 


“EarthLink
Total Access” shall have the meaning set forth in Section 6.4.


 


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


 


“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.


 


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


 


“First
Party” shall have the meaning set forth in Section 5.3.


 


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


 


“JV
Fair Market Value” shall have the meaning set forth in
Section 8.3.1.


 


“JV
Interest” shall mean the JV Securities or assets of
the Operating Company and the Management Company being sold in connection with
an M&A Transaction.


 


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


 


“Lock-in
Period” shall have the meaning set forth in Section 5.1.1.


 


“M&A
Transaction” shall mean a sale in a merger,
consolidation, share exchange, combination or other similar transaction, of at
least eighty percent (80%) of: (a) the outstanding JV Securities, or (b) the
assets of the Operating Company and the Management Company (measured in terms
of the fair market value of the assets of the Operating Company or the
Management Company, as applicable).


 


“Management
Company” shall have the meaning set forth in the
Recitals and shall include any other successor Management Company selected in
accordance with the terms of the Operating Agreement.


 


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


 


“Membership
Units” shall have the meaning set forth in the
Operating Agreement.


 


“Non-Consenting
Party” shall have the meaning set forth in Section 8.3.


 


“Operating
Agreement” shall mean that certain Limited Liability
Company Agreement, dated the date hereof, by and among EarthLink, SKTI,
Operating Company and Management Company.


 


“Operating
Company” shall have the meaning set forth in the
Recitals.


 


“Operating
Company Products and Services” shall have the meaning
set forth in Article 1 of the Operating Agreement.


 


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“Original
JV Assets” shall mean the assets of the Operating
Company and the Management Company sold in the Buy-Sell Closing.


 


“Original
JV Stock” shall mean the JV Securities that were
outstanding immediately prior to the Buy-Sell Closing.


 


“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.


 


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


 


“Permitted Transfers” shall have the meaning set forth in Section 5.1.2.


 


“Person”
shall mean any natural person or Entity.


 


“Prohibited
Transferees” shall have the meaning set forth in Section 5.2.


 


“Provider”
shall have the meaning set forth in Section 6.5.


 


“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 successor forms) under the
Securities Act of 1933, as amended.


 


“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.


 


“Restricted
Services” shall have the meaning set forth in Section 6.1.


 


“Right
of First Negotiation” shall have the meaning set forth
in Section 6.8.


 


“Right
of First Refusal” shall have the meaning set forth in Section 5.3.


 


“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 Class B Stockholders and
Subsidiaries and Parent Entities of Class B Stockholders, but excluding
the shares owned by the First Party.


 


“ROFR
Termination Date” shall have the meaning set forth in Section 5.3.


 


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“Second
Party” shall have the meaning set forth in Section 5.3.


 


“Selling
Party” shall mean the Class B Stockholder selling
its JV Securities and the JV Securities of any Affiliate of such Class B
Stockholder to the other Class B Stockholder pursuant to the buy-sell
process set forth in Section 8.3.


 


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


 


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


 


“SKTI”
shall mean SK Telecom International, Inc.


 


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


 


“Strategic
Decision” shall have the meaning set forth in Section 8.1.


 


“Subject
Interest” shall have the meaning set forth in Section 5.3.


 


“Subsequent
M&A Transaction” shall mean a subsequent sale by
an Acquiring Party, in a merger, consolidation, share exchange, combination or
other similar transaction (or series of related transactions), that includes at
least eighty percent (80%) of
the Original JV Stock or eighty percent (80%) of the Original JV Assets
(measured in terms of the fair market value of the assets of the Operating
Company or the Management Company, as applicable).


 


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


 


“Tag-along
Election Notice” shall have the meaning set forth in Section 5.4.


 


“Third
Party” shall mean any Person other than EarthLink,
SKTI, SKT or 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 Certificate
of Incorporation.


 


“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 


 


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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.


 


“Transfer
Notice” shall have the meaning set forth in Section 5.3.


 


 “VOIP” shall mean
voice over Internet protocol.


 


“VoWiFi”
shall mean voice over WiFi.


 


“Wimax
Enabled Devices” shall have the meaning set forth in Section 6.3.


 


Except as
expressly provided herein, whenever in this Stockholders’ Agreement there shall
be a reference to any Ancillary Agreement or this Stockholders’ Agreement, such
reference shall be deemed to refer to such agreement as it may be amended from
time to time.


 


ARTICLE 2

REPRESENTATIONS AND WARRANTIES


 


Each Stockholder represents and warrants to
the other Stockholder and the Management Company that:


 


2.1.         Corporate Authority.  It has all requisite corporate or limited
liability company power and authority and has taken all corporate or limited
liability company action necessary in order to execute and deliver this
Stockholders’ Agreement and to perform fully its obligations hereunder.


 


2.2.         Encumbrances.  Such Stockholder owns one (1) issued and
outstanding share of Class B Common Stock free and clear of all liens and
encumbrances, except for this Stockholders’ Agreement and the Operating
Agreement.  There are no options,
warrants or other rights, agreements, arrangements or commitments of any
character to which such Stockholder is a party relating to the pledge,
disposition or voting of any Shares and there are no voting trusts or voting
agreements with respect to such Shares.


 


2.3.         Binding Agreement.  This Stockholders’ Agreement has been duly
executed and delivered and is a valid and binding agreement of such Stockholder
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 creditor’s rights and to general
equity principles.


 


2.4.         Notices, Reports and Filings.  No notices, reports or other filings are
required to be made by such Stockholder with, nor are any consents,
registrations, approvals, permits or authorizations required to be obtained by
it or the Management Company from, any Governmental Entity, in connection with
the execution and delivery of this Stockholders’ 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 result in a Material
Adverse Effect on the Operating Company.


 


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2.5.         Non-Contravention.  The execution, delivery and performance of
this Stockholders’ Agreement by such Stockholder 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,
(a) a breach of or violation of or 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 (x) result in a Material Adverse Effect
on the Operating Company.


 


ARTICLE 3

VOTING


 


3.1.         Voting Agreements.  Each Stockholder agrees to vote or cause the
voting of, whether in person, by proxy or written consent, all Shares, directly
or indirectly, Beneficially Owned by it so as to cause the events set forth in
this Section 3.1 to occur.


 


3.1.1       Election of Class B
Directors.  The election of Class B Directors
nominated by SKT and by EarthLink, for so long as each is entitled to have its
nominees elected as Class B Directors as provided for in Article 6 of
the Certificate of Incorporation.


 


3.1.2       Removal of Class B Directors.  The removal of any Class B Director,
upon the request of the Stockholder entitled to elect such Class B
Director.


 


3.1.3       Replacement of Class B
Directors.  The appointment of a new Class B
Director, to fill any vacancy in the Class B Directors on the Board of
Directors or any committee of the Board of Directors, as determined by the
Stockholder entitled to elect such Class B Director whose departure has
caused the vacancy.


 


3.1.4       Election of Independent Directors.  Following an initial Public Offering, the
election of such independent Class A Directors as are required by Article 6
of the Certificate of Incorporation.


 


3.1.5       Payment of Dividends.  To the extent that the Management Company
receives distributions as a member of the Operating Company and to the extent permitted
by applicable law, the payment of a dividend in the amount of the net
distributions received from the Operating Company to the holders of shares of
Common Stock, subject to (i) any preferential rights of holders of Preferred
Stock, and (ii) any restrictions or limitations under any credit facility or
other loan document in respect of borrowed money.


 


3.1.6       Conversion and Exchange. 
All matters necessary to facilitate the conversion of a Stockholder’s
Class B Common Stock, convertible Preferred Stock and exchange of
Membership Units for shares of Class A Common Stock, each as provided for
in the Certificate of Incorporation.


 


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3.1.7       Public Offering.  All matters necessary to facilitate the
registration, issuance and sale of shares of Class A Common Stock in a
Public Offering, as provided for in the Certificate of Incorporation, Operating
Agreement and Registration Rights Agreement, and to give effect to the
contribution, to the Operating Company, of the net proceeds received from such
Public Offering of Class A Common Stock.


 


3.1.8       Solicitation of an M&A
Transaction.  All matters necessary to facilitate the
solicitation or exploration of an M&A Transaction, including, without
limitation, the engagement or retention of accountants, investment banks,
attorneys and similar professionals in connection therewith (the fees for which
shall be paid by the Operating Company).


 


ARTICLE 4

ADDITIONAL AGREEMENTS


 


4.1.         Standstill.  The Stockholders and their Subsidiaries shall
not take any of the following actions without the prior written consent of the
other Stockholder or the Board of Directors, as appropriate:


 


(a)           acquire
or seek to acquire Beneficial Ownership of any securities, including rights or
options, of the other Stockholder or the Operating Company, except as permitted
by the Operating Agreement;


 


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


 


(c)           participate
in any solicitation of proxies to vote, or seek to advise any Person with
respect to the voting of, any securities of the other Stockholder; propose any
stockholder proposals for submission to a vote of stockholders of the other
Stockholder, or propose any Person for election to, or the removal of any
member from, the Board of Directors of the other Stockholder; or in any way
seek to influence the management or policies of the other Stockholder; or


 


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


 


The foregoing obligations of the Stockholders shall terminate upon one
(1) year after the earlier of:  (a) the
dissolution of the Operating Company, or (b) the Transfer or conversion by
either Stockholder of its Class B Common Stock.


 


4.2.         Composition of the Board.  If necessary, the composition of the Board of
Directors shall be adjusted, to the extent necessary, to ensure the ongoing
compliance with the Sarbanes-Oxley Act and the rules and regulations of any
stock exchange on which the Management Company’s Class A Common Stock may
be traded.  The Stockholders agree to
vote their stock in favor of any such adjustments to the composition of the
Board of Directors.


 


4.3.         Amend, Modify, Waive or Repeal.  The unanimous consent of the Stockholders
shall be required to amend, modify, waive or repeal any provisions of any
organizational 


 


9





















 


documents of the Management Company for so
long as each Stockholder owns shares of Class B Common Stock.


 


4.4.         Insurance.  The Management 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, directors and officers with respect to claims against such
employees, directors and officers in their capacity as employees, directors and
officers in such amounts as the Management Company shall determine are
adequate.


 


ARTICLE 5

TRANSFER RESTRICTIONS


 


5.1.         Transfer Restrictions.  Until such time as a Type A Triggering Event
(as defined in Article 5 of the Certificate of Incorporation) shall occur,
each Stockholder 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 Stockholders’ Agreement and the
Operating Agreement.  Any Transfer of any
JV Securities other
than in accordance with this Stockholders’ Agreement and the Operating
Agreement shall be null and void.


 


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


 


5.1.2       Permitted Transfers. 
Notwithstanding anything in Section 5.1.1
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 Stockholders:


 


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


 


(b)           a
Transfer in connection with an underwritten Public Offering as a selling
Stockholder;


 


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


 


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


 


5.1.3       Agreement to be Bound. 
In all circumstances other than those described in Section 5.1.2(b), a Transfer of JV Securities or conversion of Membership
Units or shares of convertible Preferred Stock into shares of Class A
Common Stock shall be given effect by the Management Company or the Operating
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 Stockholders’ Agreement or the Operating Agreement, as the case may be,
and the Confidentiality Agreement.


 


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


 


5.2.         Prohibited Transferees. 



 


5.2.1       Non-EarthLink Prohibited
Transferees.  Notwithstanding anything to the contrary
contained herein, the Stockholders, 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 5.2.1 or to any successor or Affiliate of such Third Parties (“Non-EarthLink Prohibited
Transferees”) except as expressly permitted under Section 5.2.3.


 


5.2.2       Non-SKT Prohibited Transferees.  Notwithstanding anything to the contrary
contained herein, the Stockholders, other than SKT or a Subsidiary or Parent
Entity of SKT, shall not Transfer or attempt to Transfer any JV Securities to
any of the Third Parties set forth on Schedule 5.2.2 or to any successor or Affiliate of such Third Parties (“Non-SKT Prohibited Transferees”) except as expressly permitted
under Section 5.2.3.


 


5.2.3       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 5.2.1 and 5.2.2. 
The Non-EarthLink Prohibited Transferees and the Non-SKT Prohibited
Transferees shall collectively be referred to as the “Prohibited Transferees”.


 


5.3.         Right of First Refusal. 
Subject to Section 5.5,
if a Stockholder (the “First Party”)
receives a bona-fide written offer by a Third Party to purchase all or a
portion of the First Party’s Shares (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 


 


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Management Company and any non-transferring
Class B Stockholders (each non-transferring Class B Stockholder 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) will 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 a Second Party declines to purchase its proportionate share of the
Subject Interest, then the remaining Second Party, if any, 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 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 Stockholder,
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 5.4,
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 Stockholders’ 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 5.4
in connection with the First Party’s right to sell the Subject Interest to the Third
Party named in the Transfer Notice.  The 


 


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above Right of First Refusal shall not apply
to a transaction which constitutes a Change of Control of a Class B
Stockholder.


 


5.4.         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 Shares,
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 5.3 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 Shares to be included in the sale to the Third-Party
purchaser.  Any sale pursuant to this Section 5.4 shall be consummated not later
than sixty (60) days following delivery of the Tag-along Election Notice.


 


5.5.         Limitation on the Right of First
Refusal and Tag-along Right.  The Right of First Refusal and Tag-along Right
described in Sections 5.3
and 5.4, above, shall not apply to
Permitted Transfers.  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 Stockholder is obtained.  Following 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 Stockholder is obtained.  The Right of First Refusal and the Tag-along
Right shall terminate upon a Public Offering of the Class A Common Stock
and the availability of Rule 144 to Stockholders for the Transfer of their
Shares.


 


5.6.         Put-Call on Contribution Breach.  From and after the occurrence of a
Contribution Breach, the non-breaching Class B Stockholder shall have the
right to offer to the breaching Class B Stockholder, 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 as soon as reasonably
practicable following, but in any event 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 


 


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be the exclusive remedy available to the
non-breaching party with respect to the Contribution Breach.


 


5.7.         Transfer of Class B Common Stock.  Except as provided below, if a Class B Stockholder
desires to Transfer its shares of Class B Common Stock other than to an
Affiliate, then it must, first, convert its shares of Class B Common Stock
into shares of Class A Common Stock, and second, Transfer the shares of
Class A Common Stock pursuant to a Permitted Transfer.  Notwithstanding the foregoing restriction, a
holder of Class B Common Stock may sell its shares of Class B Common
Stock in a transaction in which it completely divests itself of all interests
in the Management Company and the Operating Company, subject at all times to
the Transfer restrictions set forth in this Stockholders’ Agreement and the
Operating Agreement.


 


ARTICLE 6

RESTRICTED SERVICES


 


6.1.         Restricted Services.  For the periods
specified below, the Management Company shall cause the Operating Company and
its Subsidiaries to refrain from providing the services set forth in this Section 6.1 (the “Restricted Services”), except as provided in Section 6.1.3 or pursuant to a written
agreement with the party benefiting from such restrictions.


 


6.1.1       EarthLink Services.  For so long as EarthLink or a Subsidiary of
EarthLink owns a share of Class B Common Stock, the Management Company shall
cause the Operating Company and its Subsidiaries to refrain from providing 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
Operating Company or a Subsidiary thereof, except as needed for customer
acquisition services and maintenance purposes.


 


6.1.2       SKT Services.  For so long as SKT or a Subsidiary of SKT owns
a share of Class B Common Stock, the Management Company shall cause the
Operating Company and its Subsidiaries to refrain from providing the following
Restricted Services that the parties deem to compete with and overlap the
products and services provided by SKT 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.


 


6.1.3       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.


 


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6.2.         Products and Services Outside the
Business Plan.  The Management Company shall cause the
Operating Company and its Subsidiaries to refrain from engaging in the
development of new products and services that are outside of the approved
Business Plan.


 


6.3.         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 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.


 


6.4.         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 the date on which EarthLink or a Subsidiary
of EarthLink ceases to own 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 Subsidiaries shall be permitted to market and distribute any
CDMA laptop cards and related software.


 


6.5.         ASP.  For so long as EarthLink or a Subsidiary of
EarthLink owns a share of Class B Common Stock, each Stockholder and each
Subsidiary of a Stockholder 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 


 


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no circumstances shall SKT propose to offer
ASP Items to Third Parties within or for use in the United States during 2005.


 


6.6.         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 Stockholder or a Subsidiary of
such Stockholder 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.


 


6.7.         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 a Parent Entity in any activity that would constitute a violation
of this exclusivity provision if it were performed by such party or its Subsidiary
directly.  Except as provided in this
Agreement, nothing shall prohibit EarthLink and 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 6.7 shall terminate on the date that is two
(2) years from the first
date on which either Class B Stockholder’s ownership of the Total Outstanding
falls below ten percent (10%).


 


6.8.         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 SKT, directly or
indirectly, might launch in Canada to provide products and services
substantially similar to the Operating Company Products and Services.  Upon receipt of written notice from SKT 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
SKT 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).


 


6.9.         Availability of Injunctive Relief.  The parties acknowledge that each may seek
injunctive relief under Section 11.2
to satisfy the requirement of this Article 6 as
well as for any other breach of this Agreement.


 


ARTICLE 7

CONVERSION AND EXCHANGE


 


7.1.         Conversion of Class B Common
Stock.  The Stockholders may convert their shares of
Class B Common Stock to shares of Class A Common Stock as provided in
the Certificate of Incorporation, and each Stockholder agrees to vote its
Shares in such a manner as to give full effect to such conversion rights.


 


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7.2.         Exchange of Membership Units. 
The Stockholders
may exchange their Membership Units for shares of Class A Common Stock as
provided in the Operating Agreement, and each Stockholder agrees to vote its
Shares in such a manner as to give full effect to such exchange rights.


 


7.3.         Conversion of Convertible
Preferred Stock.  The Stockholders may convert their shares of
convertible Preferred Stock, if any, to shares of Class A Common Stock as
provided in the Certificate of Incorporation, and each Stockholder agrees to vote
its Shares in such a manner as to give full effect to such conversation rights.


 


7.4.         Availability of Authorized and
Unissued Class A Common Stock.  The Stockholders will
vote their Shares to ensure that at all times sufficient shares of Class A
Common Stock are reserved out of the authorized but unissued Shares to permit
the issuance of shares of Class A Common Stock sufficient to (a) exchange
all of the outstanding Membership Units, (b) convert the shares of Class B
Common Stock (c) convert the shares of convertible Preferred Stock and (d)
permit the exercise of any outstanding Class A Options, each as provided
for in the Management Company’s Certificate of Incorporation and the Operating
Agreement.  The Stockholders will vote
their Shares to list the shares of Class A Common Stock required to be
delivered by the Operating Company upon 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.


 


ARTICLE 8

STRATEGIC DECISIONS AND DEADLOCK MATTERS


 


8.1.         Strategic Decisions.  For so long as there are two (2) shares of
Class B Common Stock outstanding and a Type B Triggering Event (as defined
in the Certificate of Incorporation) is not continuing, all decisions
concerning those matters set forth on Schedule 8.1 (each a “Strategic Decision”) shall require (a) the approval
of all Class B Directors, and (b) a majority vote of all directors.  If a Type B Triggering Event is continuing or
there ceases to be more than one holder of Class B Common Stock
outstanding, the Strategic Decisions shall require the approval of (x) a
majority of the Class B Directors, and (y) a majority vote of all
directors.


 


8.2.         Deadlock.  If, after consideration at a meeting of Board
of Directors, the Board of Directors is unable to reach a decision regarding a
Strategic Decision (a “Deadlock Matter”),
then each Stockholder shall cause its members of the Board of Directors to
execute a unanimous written consent evidencing and describing in reasonable
detail, the Deadlock Matter at such meeting or within five (5) days after such
meeting.  The Board of Directors shall
then deliver a copy of the written consent evidencing and describing the Deadlock
Matter to the chief executive officer of each holder of Class B Common
Stock.  Upon receipt, the chief executive
officer of each holder of Class B Common Stock shall have forty-five (45)
days to meet and negotiate, in good faith, to resolve the Deadlock Matter.  Except as set forth in Section 8.3, if the chief executive
officers of the holders of Class B Common Stock are unable to resolve a
Deadlock Matter within such forty-five (45) day period, then the Deadlock
Matter shall remain until later, if ever, resolved.  The Management Company and Operating Company
shall continue to operate in a manner consistent with prior practices until
such time as a Deadlock Matter is resolved. 
For purposes of illustration only, if a Deadlock Matter concerns the approval
of a Business Plan, the 


 


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Management Company and Operating Company
shall continue to operate under the then-current Business Plan pending
resolution of the Deadlock Matter.  The
deadlock provision set forth in this Section 8.2 shall terminate upon a Public Offering.


 


8.3.         Buy-Sell for an M&A
Transaction or a Bankruptcy Matter.  If, at any time, a
party (including an officer of the Management Company or Operating Company)
receives an offer for an M&A Transaction or proposes a Bankruptcy Matter,
then such party shall present the offer or proposal to the Management Company’s
Board of Directors for consideration in accordance with the provisions of Section 8.2, above.  A Deadlock Matter will occur if one
Class B Stockholder desires to accept an offer for an M&A
Transaction or proposes a Bankruptcy Matter (the “Consenting Party”) and the other Class B
Stockholder does not consent to or disagrees with such offer or proposal (the “Non-Consenting Party”).  If the chief executive officers of the Class B
Stockholders fail to resolve the resulting Deadlock Matter within the
forty-five (45) day period provided for in Section 8.2, then the parties shall institute the buy-sell process set
forth in this Section 8.3.


 


8.3.1       Valuation of JV Equity and
Determination of Buy-Sell Price.  Upon execution of a
unanimous written consent of the Board of Directors acknowledging a Deadlock
Matter concerning an M&A Transaction as provided in Section 8.2, the Board of Directors shall
select two (2) independent, nationally recognized United States investment
banks to determine the aggregate fair market value of all the equity of the
Operating Company and the Management Company (or, if the Board of Directors
cannot agree to the two (2) investment banks, one (1) shall be selected by each
Class B Stockholder).  The
valuations of the investment banks shall be performed and concluded by the end
of the forty-five (45) day chief executive officer dispute resolution process
described in Section 8.2,
above.  The Operating Company shall bear
the expense of the valuations.  Fair
market value shall be determined by averaging the valuations of the two (2)
investment banks, however, if the two (2) valuations differ by more than ten
percent (10%), then a third investment bank selected by the Board of Directors
(or, if the Board of Directors cannot agree on the third investment bank, then
selected by the two (2) previously selected investment banks) shall be engaged
to determine which of the valuations most accurately reflects the aggregate fair
market value of all the equity of the Operating Company and the Management
Company (“JV Fair Market
Value”).  For purposes of an M&A Transaction, the “Buy-Sell Price” shall be an amount equal to the
Selling Party’s Percentage Interest of the JV Fair Market Value.  For purposes of a Bankruptcy Matter, the
Buy-Sell Price shall be equal to the price offered by the Non-Consenting Party
in all circumstances.


 


8.3.2       Offer.  Within ten (10) days of the failure of the
chief executive officers of the Class B Stockholders to resolve such
Deadlock Matter (extended, in the case of an M&A Transaction, to the date
of determination of the JV Fair Market Value, if later), the Non-Consenting
Party shall: (a) offer to sell all, but not less than all, of the JV Securities
of the Non-Consenting Party and the Affiliates of the Non-Consenting Party to
the Consenting Party for an amount equal to the Buy-Sell Price; (b) offer to
purchase all, but not less than all, of the JV Securities of the Consenting
Party and the Affiliates of the Consenting Party for an amount equal to the
Buy-Sell Price, or (c) provide written notice to the Consenting Party that it
will participate in the M&A Transaction or agree to the proposed Bankruptcy
Matter.  If the Non-Consenting Party
agrees to participate in the M&A Transaction or to proceed with the
Bankruptcy Matter, as the case may be, then the buy-sell process shall
terminate and the parties shall proceed with the 


 


18





















 


proposed M&A Transaction or Bankruptcy
Matter on the terms and conditions set forth in the original offer or proposal.


 


8.3.3       Response to Offer.  Upon receipt of the Non-Consenting Party’s
offer, the Consenting Party shall have thirty (30) days to respond to the
Non-Consenting Party’s offer, indicating, as the case may be: (a) if the
Non-Consenting Party offers to sell the JV Securities of the Non-Consenting
Party and the Affiliates of the Non-Consenting Party pursuant to Section 8.3.2(a), (i) acceptance of such offer
or (ii) rejection of such offer, together with notice of termination of the
proposed M&A Transaction or proposed Bankruptcy Matter, as the case may be;
(b) if the Non-Consenting Party offers to purchase the JV Securities of the
Consenting Party and the Affiliates of the Consenting Party pursuant to Section 8.3.2(b), (i) acceptance of such offer
or (ii) rejection of such offer, together with notice that the Consenting Party
will purchase the JV Securities of the Non-Consenting Party and the Affiliates
of the Non-Consenting Party for the Buy-Sell Price.


 


8.3.4       Closing of Purchase.  The closing for the transactions contemplated
in Section 8.3.3 (the “Buy-Sell Closing”) shall occur as soon as
reasonably practicable, but in any event within ninety (90) days following
determination of the fair market value of the JV Securities being sold or
purchased.


 


8.3.5       Subsequent M&A Transaction
Clawback Right.  If, within twelve (12) months of the purchase
by the Acquiring Party of the JV Securities of a Selling Party and its
Affiliates, the Acquiring Party consummates a Subsequent M&A Transaction in
which the aggregate consideration that the Acquiring Party receives, or is
entitled to receive, in exchange for, in respect of or attributable to the
Original JV Stock or Original JV Assets (the “Subsequent Consideration”) is greater than the JV Fair
Market Value determined in accordance with Section 8.3.1, then, upon the consummation of
such Subsequent M&A Transaction, the Acquiring Party shall pay to the
Selling Party an amount equal to the difference between (i) the Selling Party’s
Percentage Interest (immediately prior to the Buy-Sell Closing) of the
Subsequent Consideration in such Subsequent M&A Transaction and (ii) the
Buy-Sell Price originally paid to the Selling Party by the Acquiring Party.  The foregoing amounts will be adjusted
equitably to reflect the sale of less than all of the Original JV Stock or Original
JV Assets in the Subsequent M&A Transaction.


 


8.3.6       Limitations on Initiation of the
Buy-Sell Process.  Under no circumstances will either
Class B Stockholder have the right to initiate the buy-sell process set
forth in this Section 8.3
more than one (1) time in any rolling twelve (12) month period.  Furthermore, except as may be expressly
permitted by this Section 8.3.6 or approved by the Board of Directors, until the date that is two (2)
years following the date of the Contribution Closing, neither Class B
Stockholder will have the right to initiate the buy-sell process set forth in
this Section 8.3 with respect to any M&A
Transaction that resulted from, directly or indirectly, any of the following on
the part of such Class B Stockholder, any Affiliate of such Class B
Stockholder or any officers, directors, employees or agents of such
Class B Stockholder or Affiliate of such Class B Stockholder:  (a) soliciting or initiating any M&A
Transaction; (b) participating in any negotiations regarding a M&A
Transaction, or (c) furnishing any Person any information or data with respect
to the Operating Company, permitting access to the properties of the Operating
Company, or taking any other action, in each case, to knowingly 


 


19





















 


facilitate the making of any proposal that
constitutes or may reasonably be expected to lead to any M&A Transaction.  If a Stockholder receives an unsolicited
inquiry regarding an M&A Transaction within the two (2) year period
immediately following the Contribution Closing, then such Stockholder shall
direct such inquiry to the Board of Directors.


 


ARTICLE 9

CERTIFICATES


 


9.1.         Certificates.  Any Shares held by a Stockholder shall be
represented by a certificate, setting forth upon the face thereof that the
Management Company is a corporation organized under the laws of the State of
Delaware, the name of the Person to which it is issued and the number of Shares
which such certificate represents.  Such
certificates shall be entered in the books of the Management Company as they
are issued, and shall be signed by the Chief Executive Officer of the
Management Company.  Upon any Transfer
permitted under this Stockholders’ Agreement and the Operating Agreement, the
transferring Stockholder shall (a) issue to the transferee a certificate
representing the number of Shares so transferred and (b) surrender to the
Management Company and the Management Company shall issue to the transferring
Stockholder certificates representing the remaining Shares, if any, held by
such transferring Stockholder after taking into account such Transfer.  All certificates representing Shares (unless
registered under the Securities Act of 1933, as amended (the “Securities Act”), shall bear the following
legends:


 


THE SHARES 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 MANAGEMENT COMPANY HAS RECEIVED SUCH
ASSURANCES AS THE MANAGEMENT COMPANY MAY REQUEST, WHICH MAY INCLUDE, A
SATISFACTORY OPINION OF COUNSEL.


 


ANY SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THE
SHARES REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY, AND SUBJECT TO, THE
TERMS AND PROVISIONS OF A STOCKHOLDERS’ AGREEMENT BETWEEN THE MANAGEMENT
COMPANY AND 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
MANAGEMENT COMPANY.  BY ACCEPTANCE OF
THIS CERTIFICATE, THE HOLDER HEREOF AGREES TO BECOME BOUND BY THE STOCKHOLDERS’
AGREEMENT AND LIMITED LIABILITY COMPANY AGREEMENT.


 


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9.2.         Lost or Destroyed Certificates.  The Management Company may issue a new
certificate for Shares in place of any certificate 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 Board of Directors by the Person claiming the certificate to be lost or
destroyed.


 


ARTICLE 10

TERMINATION


 


10.1.       Termination.  This Stockholder’s Agreement shall terminate
upon the first to occur of the events set forth in this Section 10.1:


 


10.1.1     Written Consent.  The written consent of the Stockholders.


 


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


 


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


 


10.2.       Effect of Termination; Survival.  In the event of a termination, this
Stockholders’ Agreement and the provisions set forth herein, except Articles 1, 4, 10 and 11 and Section 8.3.5
which shall survive indefinitely, shall
terminate automatically without any action by any party.


 


ARTICLE 11

DISPUTE RESOLUTION


 


11.1.       Dispute Resolution. 
Any dispute arising out of or relating to this Stockholders’ Agreement
shall be resolved in accordance with the procedures specified in this Section 11.1, which shall be the sole and
exclusive procedure for the resolution of any such dispute.


 


11.1.1     Negotiation Between Executives. 
The Stockholders shall attempt in good faith to resolve any dispute
arising out of or relating to this Stockholders’ 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 Stockholder 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.


 


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11.1.2     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 Stockholders fail to meet within twenty (20) days the Stockholders 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 Stockholders 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 Stockholders 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.


 


11.1.3     Arbitration. 
All disputes arising out of or relating to this Stockholders’ 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 Stockholders 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 11.1.3.


 


(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 SKT and one (1) of which shall be selected by
EarthLink.  The third arbitrator shall be
selected by the two (2) arbitrators appointed by SKT 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 Stockholders. 
By submitting the dispute to arbitration under the ICC Rules, the
Stockholders 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 Stockholders and their
respective successors, assigns and Affiliates.


 


(h)           The
prevailing party in any arbitration proceeding conducted pursuant to this
Stockholders’ Agreement may recover its 


 


22





















 


reasonable fees both for legal
representation and related costs in any action to enforce this Agreement in any
judicial or arbitration proceeding.


 


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


 


11.1.4     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 11.1.2
and Section 11.1.3 are pending.  The Stockholders will take such action, if
any, required to effectuate such tolling.


 


11.2.       Right to Injunctive Relief Before
Appointment of Arbitrators.  With respect to any
violations of this Stockholders’ Agreement which would cause or might cause
irreparable injury to any one of the parties to this Stockholders’ Agreement,
any party may, in addition to any other rights under this Stockholders’
Agreement and notwithstanding the dispute resolution procedures including,
particularly, the arbitration agreement contained in this Section 11.2, seek specific performance of
this Stockholders’ Agreement and injunctive relief in any court of competent
jurisdiction against any ongoing violation of this Stockholders’
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 12

MISCELLANEOUS


 


12.1.       Governing Law.  This Stockholders’ Agreement and the rights
and obligations of the Stockholders shall be governed by and construed in
accordance with and subject to the laws of the State of New York.


 


12.2.       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 Stockholders at the following
addresses (or at such other address for a Stockholder as shall be specified by
like notice):


 


If to SKT:


 


SK Telecom Co., Ltd.


11, Euljiro2-ga, Jung-gu


 


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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


 


with a copy to:


 


Hunton & Williams LLP


600 Peachtree Street N.E.,
Suite 4100


Atlanta, Georgia 30308


Attention:  Tinley Anderson


Facsimile:  (404) 888-4190


 


If to the Management Company:


 


SK-EarthLink Management Corp.


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:
                          


 


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


 


12.4.       Severability.  The provisions of this Stockholders’
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 Stockholders’ 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 Stockholders’ 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.


 


12.5.       Counterparts.  For the convenience of the parties hereto,
this Stockholders’ 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.


 


12.6.       Headings.  All Section headings are for convenience
of reference only and are not part of this Stockholders’ Agreement, and no
construction or reference shall be derived therefrom.


 


12.7.       Successors and Assigns.  This Stockholder’s Agreement shall be binding
upon and inure to the benefit of the Stockholders 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
Stockholders’ Agreement or of any Shares in violation of this Stockholders’
Agreement shall be null and void and of no force or effect.  The rights and obligations under this
Stockholders’ Agreement shall be assigned by a Stockholder to a transferee in
connection with the Transfer to such transferee pursuant to Article 5.


 


12.8.       Entire Agreement; Waiver.  This Stockholders’ Agreement (including any
Schedules hereto) and the Ancillary Agreements (including any exhibits and
schedules thereto), supersede all prior agreements, written or oral, among the
Stockholders with respect to the subject matter hereof and thereof and contain
the entire agreement among the Stockholders with respect to the subject matter
hereof and thereof.  This Stockholders’
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 Stockholder owning more than ten percent (10%)
of the Total Outstanding Shares.  No
waiver of any provisions hereof by any Stockholder shall be deemed a waiver of
any other provisions hereof by any such Stockholder, nor shall any such waiver
be deemed a continuing waiver of any provision hereof by such Stockholder.


 


12.9.       No Relief of Liabilities.  The Transfer by a Stockholder of any JV
Securities Beneficially Owned by such Stockholder shall not relieve such
Stockholder of any liabilities or 


 


25





















 


obligations to the Management Company or any
other Stockholder, as the case may be, that arose or accrued prior to the date
of such Transfer.


 


12.10.     Further Assurances.  Each Stockholder 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 Stockholders’ Agreement and the transactions
contemplated hereby.


 


12.11.     THIRD PARTY BENEFICIARIES. 
NOTHING IN THIS STOCKHOLDERS’ 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 STOCKHOLDERS’ AGREEMENT.


 


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IN
WITNESS WHEREOF, the Parties hereto have executed this
Stockholders’ Agreement as of the date first written above.


 


	
   

  	
  SK TELECOM CO., LTD.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EARTHLINK, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SK-EARTHLINK MANAGEMENT CORP.  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


27





















 


Schedule 8.1


Strategic Decisions


 


The following
Strategic Decisions shall be approved as provided in Article 8 of this Stockholders’ Agreement:


 


(a)           Approval
of annual Business Plan and Operating Budget;


 


(b)           Change
in scope of business;


 


(c)           Hiring/firing
(and terms of employment) of Executive Officers;


 


(d)           Delegation
and creation of any committees of the Board;


 


(e)           Acquisition
or disposition of assets (including, without limitation, subsidiaries, equity,
debt and other investments, etc.) in excess of $5 million;


 


(f)            Indebtedness
(for money borrowed and lease obligations) in excess of $5 million, outside of
ordinary course trade debt;


 


(g)           New
technology purchases/investments in excess of $5 million;


 


(h)           Entering
into any material agreement in excess of $5 million;


 


(i)            Additional
capital contributions;


 


(j)            Declaration
and payment of dividends;


 


(k)           Except
as contemplated by the definitive documents, the issuance of securities,
including, without limitation, the issuance of securities under an equity
compensation plan;


 


(l)            Selection
of independent auditors for financial purposes;


 


(m)          Creation
and management of significant corporate governance and financial policies;


 


(n)           Location
of cash and investment holdings;


 


(o)           Change
in the name of the Management Company or the Operating Company or significant
branding;


 


(p)           Selection
and/or relocation of headquarters;


 


(q)           Establishment/change
in regulatory or public policy positions;


 


(r)            New
products or services outside of the Business Plan;


 


(s)           Change
of organizational structure or any amendment to governing documents;


 


28





















 


(t)            Adoption
or change to any material employee policies including the adoption of an equity
compensation plan;


 


(u)           Non-competition
or non-solicitation agreements binding the Operating Company;


 


(v)           Merger,
consolidation or reorganization that is not an M&A Transaction;


 


(w)          Distribution
of non-EarthLink branded CDMA laptop cards and related access software;


 


(x)            The
support, public or in confidence, of any law, rule or regulation that may
likely have a significant impact on the primary business of either EarthLink or
SKT;


 


(y)           Transactions
with Affiliates in excess of $1 million; and


 


(z)            Any
M&A Transaction or Bankruptcy Matter.


 


29