Exhibit 10.2


 




 


 





FORM OF


 


SECOND AMENDED AND RESTATED


 


LIMITED LIABILITY COMPANY AGREEMENT


 


OF


 


HELIO LLC


 


by and among


 


EARTHLINK, INC.;


 


SK TELECOM USA HOLDINGS, INC.;


 


HELIO, INC.


 


and


 


HELIO LLC


 


Dated as of
                   ,
2007


 




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1 DEFINITIONS

  	
   

  	
  1

  
	
  1.1.

  	
   

  	
  Certain
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2 THE OPERATING COMPANY AND ITS BUSINESS

  	
   

  	
  9

  
	
  2.1.

  	
   

  	
  Formation;
  Effectiveness

  	
   

  	
  9

  
	
  2.2.

  	
   

  	
  Name

  	
   

  	
  9

  
	
  2.3.

  	
   

  	
  Term

  	
   

  	
  9

  
	
  2.4.

  	
   

  	
  Filing
  of Certificate and Amendments

  	
   

  	
  9

  
	
  2.5.

  	
   

  	
  Purpose
  and Powers

  	
   

  	
  9

  
	
  2.6.

  	
   

  	
  Principal
  Office: Registered Agent

  	
   

  	
  10

  
	
  2.7.

  	
   

  	
  Names
  and Addresses of Members

  	
   

  	
  10

  
	
  2.8.

  	
   

  	
  Partnership
  Treatment

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3 REPRESENTATIONS AND WARRANTIES

  	
   

  	
  10

  
	
  3.1.

  	
   

  	
  Representations
  of the Members

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4 TRANSFER RESTRICTIONS

  	
   

  	
  11

  
	
  4.1.

  	
   

  	
  Transfer
  Restrictions

  	
   

  	
  11

  
	
  4.2.

  	
   

  	
  [Reserved]

  	
   

  	
  12

  
	
  4.3.

  	
   

  	
  Right
  of First Refusal

  	
   

  	
  12

  
	
  4.4.

  	
   

  	
  Tag-along
  Right

  	
   

  	
  13

  
	
  4.5.

  	
   

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

  	
   

  	
  13

  
	
  4.6.

  	
   

  	
  Drag-along
  Right

  	
   

  	
  13

  
	
  4.7.

  	
   

  	
  Sale
  of Operating Company

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5 RESTRICTED SERVICES

  	
   

  	
  15

  
	
  5.1.

  	
   

  	
  Restricted
  Services

  	
   

  	
  15

  
	
  5.2.

  	
   

  	
  Products
  and Services Outside the Business Plan

  	
   

  	
  16

  
	
  5.3.

  	
   

  	
  Wimax
  Enabled Devices

  	
   

  	
  16

  
	
  5.4.

  	
   

  	
  [Reserved]

  	
   

  	
  16

  
	
  5.5.

  	
   

  	
  ASP

  	
   

  	
  16

  
	
  5.6.

  	
   

  	
  Future
  Services

  	
   

  	
  16

  
	
  5.7.

  	
   

  	
  Exclusivity

  	
   

  	
  16

  
	
  5.8.

  	
   

  	
  [Reserved]

  	
   

  	
  17

  
	
  5.9.

  	
   

  	
  Availability
  of Injunctive Relief

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6 MANAGEMENT OF THE OPERATING COMPANY

  	
   

  	
  17

  
	
  6.1.

  	
   

  	
  Management
  of the Operating Company

  	
   

  	
  17

  
	
  6.2.

  	
   

  	
  Compensation

  	
   

  	
  18

  
	
  6.3.

  	
   

  	
  Issuances
  of Membership Units

  	
   

  	
  19

  
	
  6.4.

  	
   

  	
  Officers

  	
   

  	
  19

  



 


i

















 


	
  ARTICLE 7 MEMBERSHIP UNITS AND MEMBERS

  	
   

  	
  19

  
	
  7.1.

  	
   

  	
  Membership
  Units

  	
   

  	
  19

  
	
  7.2.

  	
   

  	
  Powers
  of Members

  	
   

  	
  20

  
	
  7.3.

  	
   

  	
  Partition

  	
   

  	
  20

  
	
  7.4.

  	
   

  	
  Place
  of Members’ Meetings

  	
   

  	
  20

  
	
  7.5.

  	
   

  	
  Meetings

  	
   

  	
  20

  
	
  7.6.

  	
   

  	
  Telephonic
  Meetings

  	
   

  	
  20

  
	
  7.7.

  	
   

  	
  Notice
  of Meetings

  	
   

  	
  20

  
	
  7.8.

  	
   

  	
  Waivers

  	
   

  	
  20

  
	
  7.9.

  	
   

  	
  Quorum

  	
   

  	
  20

  
	
  7.10.

  	
   

  	
  Proxies

  	
   

  	
  21

  
	
  7.11.

  	
   

  	
  Voting
  Power

  	
   

  	
  21

  
	
  7.12.

  	
   

  	
  Written
  Consent

  	
   

  	
  21

  
	
  7.13.

  	
   

  	
  Liability

  	
   

  	
  21

  
	
  7.14.

  	
   

  	
  Designation
  of Tax Matters Member: Tax Matters

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8 ADMISSION OF ADDITIONAL MEMBERS

  	
   

  	
  22

  
	
  8.1.

  	
   

  	
  Admission
  Upon Transfer

  	
   

  	
  22

  
	
  8.2.

  	
   

  	
  Admission
  Upon Contribution

  	
   

  	
  22

  
	
  8.3.

  	
   

  	
  Joinder

  	
   

  	
  22

  
	
  8.4.

  	
   

  	
  Acceptance
  of Prior Acts

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9 CAPITAL CONTRIBUTIONS AND CAPITAL
  ACCOUNTS

  	
   

  	
  23

  
	
  9.1.

  	
   

  	
  Capital
  Contributions

  	
   

  	
  23

  
	
  9.2.

  	
   

  	
  Membership
  Units; Capital Contributions

  	
   

  	
  25

  
	
  9.3.

  	
   

  	
  Capital
  Accounts

  	
   

  	
  25

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10 TAX ALLOCATIONS

  	
   

  	
  26

  
	
  10.1.

  	
   

  	
  Allocation
  of Profits

  	
   

  	
  26

  
	
  10.2.

  	
   

  	
  Allocation
  of Losses

  	
   

  	
  27

  
	
  10.3.

  	
   

  	
  Special
  Allocations

  	
   

  	
  28

  
	
  10.4.

  	
   

  	
  Other
  Allocation Rules

  	
   

  	
  29

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11 DISTRIBUTIONS

  	
   

  	
  30

  
	
  11.1.

  	
   

  	
  Distributions

  	
   

  	
  30

  
	
  11.2.

  	
   

  	
  Distribution
  of the Proceeds upon Dissolution

  	
   

  	
  31

  
	
  11.3.

  	
   

  	
  No
  Withdrawal

  	
   

  	
  31

  
	
  11.4.

  	
   

  	
  Mandatory
  Tax Distribution

  	
   

  	
  31

  
	
  11.5.

  	
   

  	
  Special
  Distribution to Management Company

  	
   

  	
  31

  
	
  11.6.

  	
   

  	
  Limitations
  on Distributions

  	
   

  	
  32

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 12 ANCILLARY AGREEMENTS; OPERATING
  BUDGETS; FINANCIAL REPORTS

  	
   

  	
  33

  
	
  12.1.

  	
   

  	
  Ancillary
  Agreements

  	
   

  	
  33

  
	
  12.2.

  	
   

  	
  Operating
  Budgets

  	
   

  	
  33

  



 


ii

















 


	
  12.3.

  	
   

  	
  Financial
  Reports

  	
   

  	
  33

  
	
  12.4.

  	
   

  	
  Books
  and Records

  	
   

  	
  34

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 13 TERMINATION OF THE OPERATING COMPANY;
  LIQUIDATION AND DISTRIBUTION OF ASSETS

  	
   

  	
  34

  
	
  13.1.

  	
   

  	
  No
  Dissolution

  	
   

  	
  34

  
	
  13.2.

  	
   

  	
  Events
  Causing Dissolution

  	
   

  	
  34

  
	
  13.3.

  	
   

  	
  Survival

  	
   

  	
  34

  
	
  13.4.

  	
   

  	
  Winding
  Up

  	
   

  	
  34

  
	
  13.5.

  	
   

  	
  Filing
  of Certificate of Cancellation

  	
   

  	
  35

  
	
  13.6.

  	
   

  	
  Material
  Breach

  	
   

  	
  35

  
	
  13.7.

  	
   

  	
  Claims
  of the Members

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 14 WITHDRAWAL OF A MEMBER

  	
   

  	
  35

  
	
  14.1.

  	
   

  	
  Withdrawal
  of a Member

  	
   

  	
  35

  
	
  14.2.

  	
   

  	
  Effect
  of Withdrawal

  	
   

  	
  35

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 15 EXCHANGE

  	
   

  	
  35

  
	
  15.1.

  	
   

  	
  Exchange
  of Membership Units

  	
   

  	
  35

  
	
  15.2.

  	
   

  	
  Public
  Offering of Class A Common Stock

  	
   

  	
  36

  
	
  15.3.

  	
   

  	
  Issuance
  and Conversion of Preferred Stock

  	
   

  	
  36

  
	
  15.4.

  	
   

  	
  Equity
  Plan Compensation

  	
   

  	
  37

  
	
  15.5.

  	
   

  	
  Availability
  of Authorized and Unissued Class A Common Stock

  	
   

  	
  37

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 16 ADDITIONAL AGREEMENTS

  	
   

  	
  38

  
	
  16.1.

  	
   

  	
  Maintenance
  of Parent Entity as a Party

  	
   

  	
  38

  
	
  16.2.

  	
   

  	
  Certificates

  	
   

  	
  38

  
	
  16.3.

  	
   

  	
  Security

  	
   

  	
  39

  
	
  16.4.

  	
   

  	
  Lost
  or Destroyed Certificates

  	
   

  	
  39

  
	
  16.5.

  	
   

  	
  Most
  Favored Company

  	
   

  	
  39

  
	
  16.6.

  	
   

  	
  Most
  Favored Pricing

  	
   

  	
  39

  
	
  16.7.

  	
   

  	
  Change
  of Control

  	
   

  	
  39

  
	
  16.8.

  	
   

  	
  Standstill

  	
   

  	
  40

  
	
  16.9.

  	
   

  	
  Non-Hire
  and Non-Solicitation of Employees

  	
   

  	
  40

  
	
  16.10.

  	
   

  	
  Members’
  Expenses

  	
   

  	
  40

  
	
  16.11.

  	
   

  	
  Insurance

  	
   

  	
  40

  
	
  16.12.

  	
   

  	
  Freedom
  of Action

  	
   

  	
  41

  
	
  16.13.

  	
   

  	
  Indemnification

  	
   

  	
  41

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 17 DISPUTE RESOLUTION

  	
   

  	
  41

  
	
  17.1.

  	
   

  	
  Dispute
  Resolution

  	
   

  	
  41

  
	
  17.2.

  	
   

  	
  Right
  to Injunctive Relief Before Appointment of Arbitrators

  	
   

  	
  43

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 18 MISCELLANEOUS

  	
   

  	
  43

  
	
  18.1.

  	
   

  	
  Governing
  Law

  	
   

  	
  43

  



 


iii

















 


	
  18.2.

  	
   

  	
  Notices

  	
   

  	
  43

  
	
  18.3.

  	
   

  	
  Compliance
  with Applicable Laws

  	
   

  	
  45

  
	
  18.4.

  	
   

  	
  Severability

  	
   

  	
  45

  
	
  18.5.

  	
   

  	
  Counterparts

  	
   

  	
  45

  
	
  18.6.

  	
   

  	
  Headings

  	
   

  	
  45

  
	
  18.7.

  	
   

  	
  Successors
  and Assigns

  	
   

  	
  45

  
	
  18.8.

  	
   

  	
  Entire
  Agreement; Amendment; Waiver

  	
   

  	
  46

  
	
  18.9.

  	
   

  	
  No
  Relief of Liabilities

  	
   

  	
  46

  
	
  18.10.

  	
   

  	
  Further
  Assurances

  	
   

  	
  46

  
	
  18.11.

  	
   

  	
  Third
  Party Beneficiaries

  	
   

  	
  46

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Schedules

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 9.1.1

  	
   

  	
  Capital
  Contributions

  	
   

  	
   

  
	
  Schedule 9.1.2

  	
   

  	
  SKT
  Contributions

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Exhibits

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Joinder

  	
   

  	
   

  



 


iv

















 


THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT
(the “Agreement”) of HELIO LLC, a
Delaware limited liability company (the “Operating
Company”), is made and entered into as of                       ,
2007, by and among SK Telecom USA Holdings, Inc., a Delaware corporation (“SKT Holdings”), EarthLink, Inc., a
Delaware corporation (“EarthLink”),
the Management Company (as defined in Section
1.1) and the Operating Company.


 


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


 


WHEREAS, the Members entered into the Limited Liability Company Agreement
dated March 24, 2005, as amended and restated by the Amended and Restated
Limited Liability Company Agreement dated October 25, 2005, as amended by the
First Amendment to the Amended and Restated Limited Liability Company Agreement
dated April 16, 2007 (as amended, the “Original
Agreement”); and


 


WHEREAS, the Members desire to amend and restate the Original Agreement as set
forth herein.


 


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


 


ARTICLE 1
 DEFINITIONS


 


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


 


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


 


“Additional Capital” shall have the meaning set forth in Section 9.1.3.


 


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


 


“Adjusted Capital Account Deficit” shall have the meaning set forth in Section 10.2.4.


 


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


 


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


 

















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


2

















 


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


 


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


 


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


 


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


 


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


 


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


 


“Common Member” shall mean a Member holding Common
Membership Units.


 


“Common Membership Units” shall mean a Membership Unit that entitles
the holder of such Membership Unit to the rights and interests as described in
this Agreement.


 


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


 


“Confidentiality Agreement” shall mean the confidentiality agreement
entered into by and among EarthLink, SKT, SKT Holdings, the Management Company
and the Operating Company as of March 24, 2005.


 


“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 such agreement
may be amended from time to time. On March 24, 2005, SKTI assigned its rights,
liabilities and obligations under the Contribution and Formation Agreement to
SKT Holdings.


 


“Contribution Breach” shall mean a failure by SKT to make a
scheduled cash contribution to the Operating Company in accordance with the SKT
Commitment.


 


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


 


3

















 


“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.


 


“CPR” shall have the meaning set forth in Section
17.1.2.


 


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


 


“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.


 


“Equivalent Amount” shall have the meaning set forth in Section 15.4.


 


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


 


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


 


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


 


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


 


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


 


“ICC” shall have the meaning set forth in Section
17.1.3.


 


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


 


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


 


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


 


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


 


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


 


“Losses” shall mean all losses, liabilities, damages, claims, demands,
judgments, fines, penalties, interest or settlements of any nature or kind,
whether absolute or contingent, matured or unmatured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, including all reasonable
costs and expenses (legal, accounting or otherwise as such costs are incurred)
relating thereto, suffered by any Person, but excluding lost profits,
exemplary, indirect, special, 


 


4

















 


incidental,
punitive or consequential damages (except for any such otherwise excluded
damages payable to a Third Party by the Member or the Operating Company).


 


“Management Company” shall mean HELIO, Inc., a Delaware
corporation, and shall include any other successor Management Company selected
in accordance with the terms hereof. Management Company shall be a “manager” of
the Operating Company within the meaning of Section 18-101(10) of the Act.


 


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


 


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


 


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


 


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


 


“Members’ Meeting” shall have the meaning set forth in Section 7.4.


 


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


 


“Membership Unit” shall mean a unit of ownership of the
Operating Company which entitles the holder of such Membership Unit to a
fractional, undivided share of the Membership Interests of all Members. The
Membership Units shall consist of the Common Membership Units and the Preferred
Membership Units.


 


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


 


“MVNO Services” shall have the meaning set
forth in Section 5.7.2.


 


“New Member” shall have the meaning set forth in Section
8.2.


 


“Officers” shall mean the Chief Executive Officer and Chief Financial Officer of
the Operating Company and such other officers of the Operating Company as shall
from time to time 


 


5

















 


be
appointed by the Management Company until such time as any such officer is
removed in accordance with the terms of his or her appointment.


 


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


 


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


 


“Operating Company Business” shall mean the business transacted by the
Operating Company and shall include the development and marketing of branded
wireless telecommunications services, including, without limitation, handsets,
voice services, data services (including CDMA laptop cards and related
software), stand-alone and other wireless services in the United States.


 


“Operating Company Option” shall mean the non-compensatory option
granted to the Management Company in connection with and corresponding to the
grant by the Management Company of a Class A Option. The expiration date
and exercise price of an Operating Company Option shall equal the exercise
price of the corresponding Class A Option. Upon exercise of an Operating
Company Option, the Management Company will be entitled to the rights and
interests as described in Section 15.4. Termination
of the corresponding Class A Option shall result in termination of the
Operating Company Option granted to the Management Company in connection
therewith.


 


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


 


“Original Agreement” shall have the meaning
set forth in the Recitals.


 


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


 


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


 


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


 


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


 


“Person” shall mean any natural person or Entity.


 


“Preferred Member” shall mean a Member holding Preferred
Membership Units.


 


6

















 


“Preferred Membership Unit” shall mean a Membership Unit that entitles
the holder of such Membership Unit to the rights and interests as described in
this Agreement.


 


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


 


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


 


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


 


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


 


“Recommended Transaction” shall have the meaning set forth in Section 4.6.


 


“Registration Rights Agreement” shall mean the Registration Rights Agreement
dated as of March 24, 2005, entered into by and among SKT, EarthLink and the
Management Company.


 


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


 


“Restricted Services” shall have the meaning set forth in Section 5.1.


 


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


 


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


 


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


 


“Second Party” shall have the meaning set forth in Section 4.4.


 


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


 


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


 


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


 


“SKT Commitment” shall have the meaning set forth in Section 9.1.2.


 


“SKT Contribution Agreement” means the Contribution Agreement dated
November 7, 2007 among EarthLink, SKT Holdings and the Operating Company.


 


“SKT Contribution Right” shall have the meaning set forth in Section 9.1.2.


 


7

















 


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


 


“SKT Required Contribution” shall have the meaning set forth in Section 9.1.2.


 


“SKT Triggering Contribution” shall have the meaning set forth in Section 9.1.2.


 


“SKTI” shall mean SK Telecom International, Inc., a Delaware
corporation.


 


“Stockholders’ Agreement” shall mean and refer to the Stockholders’
Agreement, entered into by and among SKT, EarthLink and the Management Company,
as such agreement may be amended from time to time.


 


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


 


“Subject Members” shall have the meaning set forth in Section 4.6.


 


“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. The Operating Company
shall not be deemed to be a Subsidiary of any Member other than the Management Company.
The Management Company shall not be deemed to be a Subsidiary of any Member.


 


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


 


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


 


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


 


“Tax Matters Member” shall have the meaning set forth in Section 7.14.


 


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


 


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


 


“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 


 


8

















 


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


 


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


 


“VOIP” shall mean voice over Internet protocol.


 


“VoWiFi” shall mean voice over WiFi.


 


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


 


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


 


ARTICLE 2
 THE OPERATING COMPANY AND
ITS BUSINESS


 


2.1.                            Formation;
Effectiveness. The Operating Company has been formed as a Delaware
limited liability company pursuant to Section 18-201(d) of the Act. The
Original Agreement became effective on March 24, 2005.


 


2.2.                            Name.
The name of the Operating Company shall be HELIO LLC.


 


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


 


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


 


2.5.                            Purpose
and Powers.


 


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


 


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


 


9

















 


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


 


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


 


SK
Telecom USA Holdings, Inc.


c/o
SK Telecom Co., Ltd.


11,
Euljiro2-ga, Jung-gu


Seoul,
100-999, Korea


Attention:  Jin Woo So, President


 


EarthLink,
Inc.


1375
Peachtree Street, N.E.


Atlanta,
Georgia  30309


Attention:  Chief Executive Officer


 


HELIO,
Inc.


10960 Wilshire Blvd., Ste. 700,


Los Angeles, CA 90024


Attention:  Chief Executive Officer


 


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


 


ARTICLE 3
 REPRESENTATIONS AND
WARRANTIES


 


3.1.                            Representations
of the Members.


 


As
of the date hereof, each of the Members, severally and not jointly, represents
and warrants to the others as set forth below.


 


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


 


3.1.2                     Binding
Agreement. This Agreement has been duly executed and delivered by it
and is a valid and binding agreement of it enforceable against it in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium 


 


10





















 


and similar
laws of general applicability relating to or affecting creditors’ rights and to
general equity principles.


 


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


 


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


 


ARTICLE 4
 TRANSFER RESTRICTIONS


 


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


 


4.1.1                     Lock-In Period. Until March 24, 2008 (the “Lock-in Period”), the Members and their Subsidiaries and
Parent Entities shall not Transfer or solicit any Transfer of any JV Securities
without the prior written consent of the non-transferring Class B Members,
which cannot be unreasonably withheld. After the expiration of the Lock-In
Period, the Members and their Subsidiaries may, subject to the restrictions on
Transfer contained in this Article 4, Transfer all or any portion of their JV
Securities to a Third Party without the necessity of obtaining the prior
written consent of each of the Class B Member(s).


 


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


 


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


 


11





















 


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


 


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


 


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


 


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


 


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


 


4.2.                            [Reserved]


 


4.3.                            Right
of First Refusal.  Subject to Section
4.5, if a Member (the “First
Party”) receives a bona-fide written offer by a Third Party to
purchase all or a portion of the First Party’s Membership Units (the “Subject Interest”) that the First Party
desires to accept, the First Party shall promptly after receipt of the offer
deliver notice (the “Transfer Notice”)
to the Operating Company and SKT 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, SKT shall have the right to elect to purchase a
portion of the Subject Interest being sold equal to their respective ROFR
Percentage Interests (a “Right of First
Refusal”), on terms and conditions no less favorable to the First
Party than those set forth in the Transfer Notice; provided, that
if such terms and conditions include non-cash assets or non-financial
requirements that would be impracticable to satisfy, then SKT 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 SKT elects to purchase the Subject Interest,
the First Party and SKT 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 SKT 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 


 


12

















 


Transfer
Notice. If the Right of First Refusal is not exercised by SKT 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 SKT provided in Section 4.4,
below. If SKT 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, then SKT shall be
deemed to have breached this Agreement and, in addition to any other right or
remedy available to the First Party or the Management Company, shall be deemed
to have forfeited its Tag-along Right under Section
4.4 in connection with the First Party’s right to sell the Subject
Interest to the Third Party named in the Transfer Notice. The above Right of
First Refusal shall not apply to a transaction which constitutes a Change of
Control of a Class B Member.


 


4.4.                            Tag-along
Right. If (i) the Right of First Refusal is not exercised by SKT 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  or
(ii) SKT receives a bona-fide written offer by a Third Party to purchase SKT’s
Subject Interest that SKT desires to accept, then the First Party or SKT, as
applicable, shall promptly deliver written notice thereof (“Tag-along
Transfer Notice”) to any non-transferring Class B Stockholder (each
non-transferring Class B Stockholder a “Second Party”
and collectively, the “Second Parties”)
and each Second Party will have the right to sell to the Third-Party purchaser
identified in the Tag-along Transfer Notice a portion of the Subject Interest,
from such Second Party’s Membership Units, equal to the Subject Interest
multiplied by such Second Party’s Percentage Interest (“Tag-along
Right”); provided that no Second Party that has breached its
obligations under Section 4.3 with respect to any
Subject Interest may exercise any Tag-along Right with respect to such Subject
Interest. A Second Party electing to exercise its Tag-along Right shall provide
to the Operating Company and the First Party written notice of such election (the
“Tag-along Election Notice”) within
such sixty (60) day period. The Tag-along Election Notice shall specify the
number of Membership Units to be included in the sale to the Third-Party
purchaser. The consideration payable per Membership Unit to any Second Party
electing to exercise its Tag-along Rights shall be equitably adjusted to give
effect to the difference the Members would be entitled to receive with respect
to such Membership Units if there were a dissolution of the Operating Company.
Any sale pursuant to this Section 4.4
shall be consummated not later than sixty (60) days following delivery of the
Tag-along Election Notice.


 


4.5.                            Limitation
on the Right of First Refusal and Tag-along Right. The Right of First
Refusal and Tag-along Right described in Sections 4.3
and 4.4, above, shall not apply to
Permitted Transfers (as defined in Section 4.1.2).
The Right of First Refusal and the Tag-along Right shall terminate upon a
Public Offering of the Class A Common Stock and the availability of Rule
144 promulgated under the Securities Act, to Members for the Transfer of their
Membership Units.


 


4.6.                            Drag-along
Right. Notwithstanding anything herein to the contrary, in the event of
a bona fide arm’s length sale (including a binding commitment to sell) to an
unaffiliated Third 


 


13

















 


Party by SKT, in a single
transaction or a series of related transactions (whether by sale of units,
merger, amalgamation, consolidation, sale of assets or similar transaction), of
not less than a majority of the Total Outstanding Shares then owned by SKT (a “Recommended Transaction”), each of the other Members
(collectively, the “Subject Members”)
will be obliged to sell if required by SKT, in the same transaction or
transactions, the same proportion of the Total Outstanding Shares held by such
Subject Member as being sold by SKT, and each Subject Member further agrees (if
it is required to participate in the sale) to vote, or grant proxies to vote,
the proportion of such Subject Member’s Total Outstanding Shares subject to the
Recommended Transaction in favor of the Recommended Transaction and to take
such other votes or actions as may be reasonably necessary to facilitate the
Recommended Transaction. The obligations of the Subject Members pursuant to
this Section 4.6 are subject to the
satisfaction of the following conditions:


 


4.6.1                     Upon the consummation of the Recommended
Transaction, all of the Subject Members shall receive the same proportion of
the aggregate consideration from such Recommended Transaction that such Member
would have received if such aggregate consideration had been distributed by the
Operating Company in complete liquidation pursuant to the rights and
preferences set forth herein. SKT unconditionally agrees that no consideration
in connection with the Recommended Transaction will be diverted away from the
Subject Members through value-added partnership or commercial agreements
entered into in connection with such Recommended Transaction.


 


4.6.2                     If any Subject Member is given an option as
to the form and amount of consideration to be received, all Subject Members
will be given the same option.


 


4.6.3                     No Subject Members shall be obligated to make
any out-of-pocket expenditure prior to the consummation of the Recommended
Transaction and no Subject Member shall be obligated to pay more than its pro
rata share (based upon the amount of consideration received) of reasonable
expenses incurred in connection with a consummated Recommended Transaction to
the extent such costs are incurred for the benefit of SKT and all Subject
Members and are not otherwise paid by the Operating Company or the Management
Company or the acquiring party (costs incurred by or on behalf of SKT or a
Subject Member for its sole benefit will not be considered costs of the
transaction hereunder); provided that SKT and a Subject Member’s liability for
such expenses shall be shared pro rata based on SKT and each Subject Member’s
Percentage Interest.


 


4.6.4                     In the event that SKT and all the Subject
Members are required to provide any representations or indemnities in
connection with the Recommended Transaction (other than representations and
indemnities concerning (i) each Subject Member’s valid ownership of its
Membership Units, free of all liens and encumbrances (other than those arising
under applicable securities laws), and (ii) each Subject Member’s authority,
power, and right to enter into and consummate such purchase or merger
(amalgamation) agreement without violating any other agreement), then each Subject
Member shall not be liable for more than its pro rata share (based upon the
amount of consideration actually received) of any liability for
misrepresentation or indemnity and such liability shall not exceed the total
purchase price received by such Subject Member for its Membership Units.


 


14





















 


4.6.5                     No Subject Member shall be obligated to enter
into any non-competition or other restrictive covenant in connection with the
Recommended Transaction unless (i) such restrictive covenant only prohibits the
Subject Member from providing MVNO Services (as defined in Section 5.7.2) in the United States for a period of two
(2) years, and (ii) SKT and each other Subject Member agree to such
restrictive covenant in connection with the Recommended Transaction.


 


4.7.                            Sale
of Operating Company.  Upon a sale of the Operating Company (whether
by merger, unit sale, asset sale or otherwise), each Member shall receive the
same proportion of the aggregate consideration from such sale that the Member
would receive if there were a dissolution of the Operating Company pursuant to
the terms of this Agreement.


 


ARTICLE 5

RESTRICTED SERVICES


 


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


 


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


 


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


 


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


 


15




















 


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


 


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


 


5.4.                            [Reserved].


 


5.5.                            ASP. For so long as
EarthLink or a Subsidiary of EarthLink owns a share of Class B Common
Stock, each Member and each Subsidiary of a Member that acts as an ASP in the
United States (each, a “Provider”)
shall, if requested by the Operating Company, provide ASP solutions,
applications and platforms (including a license or professional service with
respect thereto, but excluding Coloring Service, to the Operating Company on
terms no less favorable than those offered by the Provider to third party
purchasers in the United States for substantially similar volumes of substantially
similar products and services.


 


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


 


5.7.                            Exclusivity.


 


5.7.1                     From the date hereof until the
earlier of (a) the date of the SKT Triggering Contribution or (b) two (2) years
from the first date on which either Class B Stockholder’s ownership of the
Total Outstanding Shares falls below ten percent (10%), EarthLink and SKT and
their Subsidiaries shall not provide mobile wireless voice or data services
over handsets in the United States; provided, however, in the event of a
Contribution Breach, SKT shall not provide mobile wireless voice or data
services over handsets in the United States from the date of the Contribution
Breach until two (2) years from the first date on which either Class B
Stockholder’s ownership of the Total Outstanding Shares falls below ten percent
(10%). In the


 


16

















 


event
that SKT provides mobile wireless voice or data services over handsets in the
United States in the period between the date of the SKT Triggering Contribution
and a Contribution Breach, upon a Contribution Breach (i) SKT must immediately
cease providing all such services (other than through the Management Company or the Operating
Company), (ii) any agreements entered into by SKT (other than through the
Management Company or the Operating Company) related to providing such
services will be void as of the date of the Contribution Breach and (iii) any
Entity (which shall
not include the Management Company or the Operating Company) created
by SKT to provide such services must be dissolved. It is understood and agreed
that money damages would not fully compensate EarthLink as a remedy for a
Contribution Breach by SKT and, without prejudice to any other rights and
remedies otherwise available to EarthLink, EarthLink shall be entitled to
equitable relief by way of injunction, specific performance or otherwise with
respect to this Section 5.7 in
the event of a Contribution Breach.


 


5.7.2                     Other than through the Operating
Company, EarthLink and SKT and their Subsidiaries shall not provide MVNO
Services in the United States. The restrictions set forth in this Section 5.7.2 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 Shares falls below ten percent (10%). For
purposes of this Section 5.7.2, “MVNO Services” means providing mobile voice and data
services on mobile handsets without owning any material part of a mobile
network or frequency pertaining to such said mobile services, but instead by
leasing all or substantially all of the mobile network and frequency from
mobile network operators.


 


5.7.3                     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 the
exclusivity provisions set forth in this Section
5.7 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.


 


5.8.                            [Reserved.]


 


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


 


ARTICLE 6

MANAGEMENT OF THE OPERATING COMPANY


 


6.1.                            Management of
the Operating Company.


 


6.1.1                     Management. The management of the
Operating Company shall be vested exclusively in the Management Company acting
through its Board of Directors or, if delegated by the Board of Directors of
the Management Company, an officer of the Management Company. The Management
Company acknowledges that its powers are subject to the terms of the Management
Company Certificate and agrees at all times to abide by the terms and
conditions set forth therein. All Strategic Decisions and Deadlock Matters
(each as defined in


 


17

















 


Article 8 of the Stockholders’
Agreement) shall be made and resolved as provided in the Stockholders’
Agreement. The Management Company shall serve until the Members shall determine
by a unanimous vote of the Membership Units, excluding Membership Units held by
the Management Company, to remove the Management Company. At such time, the
Members shall elect a new Management Company by a unanimous vote of the
Membership Units, excluding Membership Units held by the Management Company. If
the Management Company is the sole Member of the Operating Company, then the
Management Company shall be entitled to elect any successor to manage the
Operating Company. The Management Company shall have the power on behalf and in
the name of the Operating Company to carry out any and all of the objects and
purposes of the Operating Company and to perform or authorize all acts which it
may deem necessary or advisable in connection therewith. The Members agree that
all determinations, decisions and actions made or taken by the Management
Company in accordance with this Agreement and the Management Company
Certificate shall be conclusive and absolutely binding upon the Operating Company,
the Members and their respective successors, assigns and representatives. Without
limiting the foregoing, the Board of Directors of the Management Company shall
delegate, subject to rescission and to the approval rights of the Board of
Directors set forth in Section 8.1 of the Stockholders’ Agreement, to its
officers the powers and responsibilities set forth below in this Section 6.1.1.:


 


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


 


(b)                                 The power to execute and deliver Contracts and other
documents in the ordinary course of the Operating Company’s business;


 


(c)                                  The power to employ, retain, consult with and dismiss
personnel;


 


(d)                                 The power to establish and enforce corporate governance
and financial policies including, without limitation, limits of authority and
internal controls with respect to all personnel and functions;


 


(e)                                  The power to engage attorneys, consultants, accountants
and other agents and representatives of the Operating Company;


 


(f)                                    The power to develop or cause to be developed
accounting procedures for the maintenance of the Operating Company’s books of account
and the selection of appropriate financial systems and controls; and


 


(g)                                 The power to make all tax elections permitted to be
made by partnerships except as otherwise provided in Section 8.1 of the
Stockholders’ Agreement.


 


6.1.2                     Other Powers. The Board of Directors of the
Management Company shall maintain all other powers and responsibilities to
manage the Operating Company.


 


6.2.                            Compensation. The Management Company
shall not be entitled to compensation for services rendered to the Operating
Company in its capacity as the Management Company, but shall be entitled to
receive from the Operating Company reimbursement of all of


 


18

















 


its out of
pocket costs and expenses (a) required in connection with managing the business
of the Operating Company Business, and (b) incurred in connection with making
filings and reports under the Securities Act and the Exchange Act (including
registration statements).


 


6.3.                            Issuances of
Membership Units. The Operating Company issued Membership Units to the Initial Members in
connection with the initial Contribution Closing in the amounts set forth on Schedule 9.1.1, and is authorized to issue
additional Membership Units upon approval of the Board of Directors of the
Management Company and in accordance with terms of this Agreement. The
Management Company hereby authorizes the Operating Company to issue Membership
Units to SKT in connection with the SKT Required Contribution, the SKT
Triggering Contribution and other Additional Capital contributed by SKT as set
forth on Schedule 9.1.2.


 


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


 


ARTICLE 7

MEMBERSHIP UNITS AND MEMBERS


 


7.1.                            Membership
Units. The
ownership of the Operating Company shall be represented by Membership Units
which may be issued by the Operating Company in the form of either Common
Membership Units or Preferred Membership Units. Except as provided in this
Agreement, the Common Membership Units and Preferred Membership Units 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.


 


7.1.1                     No Impairment
of Membership Units.
The Operating Company may not, without first obtaining the approval of the
Board of Directors of the Management Company and in accordance with the
Stockholders’ Agreement (a) authorize or issue, or issue, or obligate itself to
issue, any other Membership Interest having a preference over the Membership
Units held by the holders of Class B Common Stock with respect to voting,
dividends, conversion or liquidation rights or (b) take any action, whether by
merger, consolidation or otherwise, that


 


19

















 


alters or changes the powers preferences,
privileges or special rights of the Membership Units held by the holders of
Class B Common Stock if such alteration or change would adversely affect the
holders of the Membership Units held by the holders of Class B Common Stock.


 


7.2.                            Powers of
Members. Members
shall have only such rights and powers as are granted to Members pursuant to
the express terms of this Agreement and the Act. Except as otherwise expressly
and specifically provided in this Agreement, no Member, in such capacity, shall
have any authority to bind, to act for, to sign for or to assume any obligation
or responsibility on behalf of, any other Member or the Operating Company. Except
as expressly set forth in the fourth sentence of Section 6.1.1, Section 7.14.3
and Section 13.2.1 of this Agreement, no action by the Operating Company shall
require the vote or approval of any Member in its capacity as a Member.


 


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


 


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


 


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


 


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


 


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


 


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


 


7.9.                            Quorum. The attendance of an
authorized representative of each Class B Member, each with the right to
vote their Membership Units, shall constitute a quorum at a Members’ Meeting
for the transaction of any business. If there are no Class B Members, the


 


20

















 


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


 


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


 


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


 


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


 


7.13.                     Liability. Except as otherwise
provided by the Act, the debts, obligations and liabilities of the Operating
Company, whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Operating Company, and the Members
shall not be obligated personally for any such debt, obligation or liability of
the Operating Company solely by reason of being a Member.


 


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


 


7.14.1              Audit. Notwithstanding the foregoing,
each Initial Member shall retain the right to control the portion of any audit
relating to depreciation or gain or loss with respect to


 


21

















 


any of the assets contributed at the
Contribution Closing by or on behalf of Affiliates of such Initial Member,
respectively, for any taxable year.


 


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


 


ARTICLE 8

ADMISSION OF ADDITIONAL MEMBERS


 


8.1.                            Admission Upon
Transfer. Upon a Transfer of Membership Units (other than a pledge permitted under
Section 4.1.2 of all or any of a
Member’s Membership Units), the Operating Company is authorized to admit any
Person who is a transferee of such Membership Units as an additional member of
the Operating Company (each, an “Additional
Member” and collectively, the “Additional
Members”); provided, that no such Person shall be entitled to any
rights hereunder except pursuant to a Transfer in accordance with this
Agreement. Each such Person shall be admitted as an Additional Member at the
time such Person executes a joinder to this Agreement as provided in Section 8.3 and the Confidentiality
Agreement and such Transfer is given effect under Article 4.


 


8.2.                            Admission Upon
Contribution.
Upon a contribution by an unaffiliated Third Party approved by the Board
of Directors of the Management Company or an assignee of all or part of the SKT
Contribution Right for amounts in excess of the SKT Triggering Contribution
(each, a “New Member”), the
Operating Company is authorized to (i) issue such number of Membership Units as
determined by the Board of Directors of the Management Company, and (ii) admit
such Person as a New Member of the Operating Company. Each such Person shall be
admitted as a New Member at the time such Person executes a joinder to this
Agreement as provided in Section 8.3,
and executes a counterpart to the Confidentiality Agreement.


 


8.3.                            Joinder. Any Person that is
being admitted as an Additional Member or a New Member pursuant to this Article 8 shall, without the need for
approval by any other party to this Agreement, become a party to this Agreement
by executing and delivering a joinder signature page hereto in the form of Exhibit
A hereto whereupon such Person shall be deemed a “Member” for all purposes
of this Agreement and shall automatically be added to Schedule 9.1.1 hereto.


 


8.4.                            Acceptance of
Prior Acts. Any Person who becomes an Additional Member or a
New Member, accepts, ratifies and agrees to be bound by all actions duly taken
pursuant to the terms and provisions of this Agreement by the Operating Company
prior to the date it became an Additional Member or a New Member and, without
limiting the generality of the foregoing, specifically ratifies and approves
all agreements and other instruments as may have been


 


22

















 


executed and
delivered on behalf of the Operating Company prior to said date and which are
in force and effect on said date.


 


ARTICLE 9

CAPITAL CONTRIBUTIONS AND

CAPITAL ACCOUNTS


 


9.1.                            Capital Contributions.


 


9.1.1                     Initial Capital Contributions. At the Contribution Closing, the
Initial Members contributed capital, or made a commitment to contribute
capital, to the Operating Company in the form and amount required under the
Contribution and Formation Agreement. In exchange for such capital
contributions and the commitment of each Initial Member to make all future
capital contributions required under the Contribution and Formation Agreement
(each an “Initial
Capital Contribution”),
the Operating Company issued Membership Units to the Initial Members at the
Contribution Closing in the amounts set forth on Schedule 9.1.1, hereof. Additional Initial
Capital Contributions by an Initial Member in accordance with the Contribution
and Formation Agreement shall not result in the issuance of any additional
Membership Units or any modification to the Percentage Interest of each Initial
Member set forth on Schedule 9.1.1,
provided, however, the contributing Initial Member’s basis in the Membership
Units issued to such Initial Member at the initial Contribution Closing shall
be increased by the value of such future Initial Capital Contributions. The
Members shall adopt a revised Schedule 9.1.1
reflecting the then current Percentage Interests of the Members upon the
occurrence of either of the following: (a) the admission of an Additional
Member pursuant to Section 8.1;
(b) the admission of a New Member pursuant to Section 8.2; or (c) contribution
of Additional Capital pursuant to Section 9.1.2 or 9.1.3.


 


9.1.2                     Required
Additional Capital Contributions. As of the date hereof, SKT Holdings shall contribute to
the Operating Company an aggregate amount of Seventy Million Dollars
($70,000,000) (the “SKT Required Contribution”).
In exchange for the SKT Required Contribution, the Operating Company will issue
Preferred Membership Units to SKT Holdings in the amounts set forth on Schedule 9.1.2. Prior to December 31,
2009, SKT Holdings may also contribute up to an additional Two Hundred Million
Dollars ($200,000,000) (the “SKT Contribution
Right”) on the terms set forth on Schedule 9.1.2. The payment of the SKT Required
Contribution and a written commitment made by SKT to the Operating Company and
EarthLink on or before December 31, 2007 to contribute an additional Eighty
Million Dollars ($80,000,000) on the terms set forth on Schedule 9.1.2 prior to June 30, 2008
(the “SKT Commitment”) will
constitute an “SKT Triggering Contribution”.
EarthLink is not required to contribute any Additional Capital (as defined in
Section 9.1.3). The Operating Company may not issue Membership Units to SKT at
a price per unit less than $3.00 unless (i) in connection with a contribution
being made by an unaffiliated Third Party together with SKT in which such
unaffiliated Third Party is investing fifty percent (50%) or more of the
aggregate contribution, (ii) SKT and EarthLink agree in writing, or (iii) an
independent valuation consultant has determined that the “fair market value” of
the Membership Units is less than $3.00 per unit; provided, however, this
restriction does not apply to issuances to the Management Company in connection
with the exercise, conversion or exchange of equity rights (A) existing prior
to the date hereof or reserved for issuance prior to the date hereof, or (B)
otherwise approved by the


 


23

















 


affirmative vote of a majority of Class B
directors(including at least one (1) Class B director appointed by each Member
entitled to appoint a Class B director). Notwithstanding the foregoing, the SKT
Triggering Contribution must be made on the terms set forth on Schedule 9.1.2. Any independent
valuation consultant engaged pursuant to this Section
9.1.2 shall be selected by the mutual agreement of EarthLink and SKT
and all expenses related to the valuation shall be paid by the Operating
Company or the Management Company.


 


9.1.3                     Additional Capital Contributions. In connection with (a) amounts
contributed pursuant to Section 9.1.2,
and (b) a determination by the Board of Directors of the Management Company
that the Operating Company requires additional capital or proposes to issue
securities convertible into or exchangeable for Membership Units (other than
securities issuable to the Management Company in connection with the exercise,
conversion or exchange of stock options, warrant or equity rights (i) existing
prior to the date hereof or reserved for issuance prior to the date hereof, or
(ii) otherwise approved by the affirmative vote of a majority of Class B
directors (including at least one (1) Class B director appointed by each Member
entitled to appoint a Class B director) (collectively, “Additional Capital”), each Member shall have the
right (but not the obligation, other than obligations set forth in Section 9.1.2) to contribute its share of
such Additional Capital. For such purposes, each Member’s share of Additional
Capital shall equal the percentage determined by dividing the Member’s Capital
Contributions by the total Capital Contributions of all the Members as of such
time. If, within fifteen (15) days following receipt from the Management
Company of a notice specifying the amount of Additional Capital so required, a
Member fails to contribute its share of such Additional Capital, then the other
Members shall have the right to contribute their portion of the uncontributed
Additional Capital as measured by the ratio of each Member’s share of the
Additional Capital, excluding the share of Additional Capital for the
non-contributing Member. If, within fifteen (15) days following receipt from
the Management Company of a notice of such Member’s right to contribute its
portion of uncontributed Additional Capital, the Members have failed to
contribute all of such Additional Capital, the Operating Company may issue
Membership Units in exchange for the contribution of the uncontributed
Additional Capital, on substantially the same terms as offered to the Members,
to any Person, who shall become a New Member pursuant to Section 8.2. The Operating Company shall
issue Membership Units for such Additional Capital. All cash contributed by the
Members (including the New Members) and all cash and investment accounts shall
be held in financial institutions organized under the laws of the United States
of America and deposited in accounts denominated in United States Dollars.


 


9.1.4                     Cancellation of
Certain Initial Capital Contributions. As of the date of the SKT Triggering Contribution,
Membership Units issued to EarthLink in exchange for $40,000,000 of non-cash
assets contributed by EarthLink as part of the Initial Capital Contribution
will be cancelled and the Percentage Interest of the Members shall be
re-calculated taking into account such cancellation. In the event that the
Membership Units subject to this Section
9.1.4 are cancelled upon the SKT Commitment and the $150,000,000
payable upon the SKT Triggering Contribution is not paid in full by June 30,
2008, such cancelled Membership Units will be reissued to EarthLink at no cost
and the Percentage Interest of the Members shall be recalculated taking into
account such issuance.


 


24

















 


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


 


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


 


9.3.1                     Capital Account Increases. The Capital Account of each
Member shall be increased by (a) the amount of any cash and the agreed net fair
market value (as used herein, “agreed net fair market value” of property
shall mean the gross fair market value of the property reduced by all liabilities
encumbering the property, as determined by the Board of Directors of the
Management Company as of the date of contribution) of any property contributed
as a Capital Contribution to the capital of the Operating Company by such
Member, (b) the amount of any profits allocated to such Member, (c) amounts of
gain allocated pursuant to Section 10.3.4 and (d) amounts of gain allocated pursuant to Section 10.3.7.


 


9.3.2                     Capital Account Decreases. The Capital Account of each
Member shall be decreased by (a) the amount of any losses allocated to such
Member, (b) the amount of any cash and the agreed net fair market value as of
the date of distribution of any property distributed to such Member, (c)
amounts of loss allocated pursuant to Section 10.3.4 and (d) amounts of loss
allocated pursuant to Section 10.3.7.


 


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


 


9.3.4                     Operating Company Options. The Operating Company shall make
appropriate adjustments to Capital Accounts in connection with the exercise of
an Operating Company Option. For this purpose, the Capital Account attributable
to a Common Membership Unit issued upon exercise of an Operating Company Option
shall include its share of unrealized income, gain, loss or deduction that is
inherent in the Operating Company’s property calculated and allocated
consistent with Article 10 of this Agreement and taking into account all
such unrealized income, gain, loss or deduction even if reflected in all other
Members’ Capital Accounts previously (other than unrealized income, gain, loss
or deduction attributable to Member contributed property and specially
allocable to such Member). The Operating Company will revalue its property
immediately after the exercise of the Operating Company Option. For this
purpose, the fair market value assigned to any property revalued by the
Operating Company will be regarded as correct, provided that (i) the value is reasonably
agreed to by the Members in arm’s-length negotiations and (ii) the Members have
sufficiently adverse interests. Such revaluation shall be on a
property-by-property basis, except as otherwise allowed. In determining the Capital
Accounts of the Members (including the Management Company), the


 


25

















 


Operating Company first will allocate any
unrealized income, gain, loss or deduction in Operating Company property (that
has not been reflected in the Capital Accounts previously) to the Management
Company to the extent necessary to reflect the Management Company’s right to
share in the Operating Company capital under this Agreement, and then allocate
any remaining unrealized income, gain, loss or deduction (that has not been
reflected in the Capital Accounts previously) to the existing Members
(including the Management Company), to reflect the manner in which the
unrealized income, gain, loss or deduction in Operating Company property will
be allocated among those Members if there were a taxable disposition of such
property for its fair market value on that date calculated consistent with
Article 10 of this Agreement. If, after making the allocations described
in the preceding sentence, the Management Company’s Capital Account still does
not reflect the Management Company’s right to share in Operating Company
capital under this Agreement, then the Operating Company will reallocate
Operating Company capital between the existing Members and the Management
Company so that the Management Company’s Capital Account will reflect the
Management Company’s right to share in Operating Company capital under this
Agreement. Any increase or reduction in the Capital Accounts of existing
Members that occurs as a result of a Capital Account reallocation will have to
be allocated among the existing Members in accordance with these rules. This
Agreement requires corrective allocations to take into account all Capital
Account reallocations according to the preceding sentence, which corrective
allocations will be made until the Capital Account reallocations are eliminated.
In connection with the foregoing adjustments, the fair market value of
Operating Company property will be reduced by the fair market value of
outstanding Operating Company Options as of the date of adjustment to the
extent of the unrealized income or gain in Operating Company property
(allocated in proportion to their respective amounts of unrealized
appreciation).


 


9.3.5                     Maintenance of Capital Accounts. Notwithstanding
any other provision of this Agreement, all Capital Accounts of the Members shall be
determined and maintained in accordance with the capital accounting rules of
Section 1.704-1(b)(2)(iv) of the Regulations.


 


ARTICLE 10

TAX ALLOCATIONS


 


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


 


10.1.1              Prior Preferred Member Losses
Allocated. First,
profits for any Fiscal Year shall be allocated to those Preferred Members who
are allocated losses pursuant to Sections 10.2.3 and 10.2.4 in proportion to and in an amount equal to any such losses
allocated to such Preferred Members pursuant to Sections 10.2.3 and 10.2.4 below to restore the losses
allocated to such Preferred Members with respect to their Preferred Membership
Units.


 


10.1.2              Prior Common Member Losses
Allocated. Second,
profits for any Fiscal Year shall be allocated to those Common Members who are
allocated losses pursuant to Sections 10.2.2 and 10.2.4 in proportion to and in an amount equal to any such losses
allocated to such Common Members pursuant to Sections 10.2.2 and 10.2.4 below to restore the losses
allocated to such Common Members with respect to their Common Membership Units.


 


26

















 


10.1.3              Special Allocation to Common
Members. Third,
profits for any Fiscal Year shall be allocated to the Common Members in
proportion to their respective Percentage Interests in such amounts as are
necessary to cause the balances of the Capital Accounts of such Common Members,
when divided by total Capital Accounts, to equal their respective Percentage
Interests.


 


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


 


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


 


10.2.1              Prior Member Profits Allocated. First, losses for any Fiscal
Year shall be allocated (i) among the Members who are allocated profits
pursuant to Section 10.1.4
in proportion to and in amounts equal to any such profits allocated to such
Members pursuant to Section 10.1.4
to offset the profits allocated to such Members with respect to their
Membership Units, and then (ii) among the Common Members who are allocated
profits pursuant to Section 10.1.3
in proportion to and in amounts equal to any such profits allocated to such
Common Members pursuant to Section 10.1.3
to offset the profits allocated to such Common Members with respect to their
Common Membership Units.


 


10.2.2              Common Members. Second, losses for any Fiscal
Year shall be allocated among the Common Members in proportion to their
respective Percentage Interests, subject to the limitation in Section 10.2.4 below.


 


10.2.3              Preferred Members. Third, losses for any Fiscal
Year shall be allocated among the Preferred Members in proportion to their
respective Percentage Interests, subject to the limitation in Section 10.2.4 below.


 


10.2.4              Limitation on Allocation of
Losses. Losses
allocated pursuant to Sections 10.2.1, 10.2.2 and 10.2.3 shall not exceed the maximum amount of losses that can be
allocated without causing any Member to have an Adjusted Capital Account
Deficit at the end of any Fiscal Year. In the event some, but not all, of the
Members would have an Adjusted Capital Account Deficit as a consequence of an
allocation of losses pursuant to Sections 10.2.1,
10.2.2 and 10.2.3 the limitations set forth in this Section 10.2.4 shall be applied on a Member by
Member basis so as to allocate the maximum permissible losses to each Member
under Section 1.704-1(b)(2)(ii)(d) of the Regulations. “Adjusted Capital Account Deficit” means, with respect to any
Member, the deficit balance, if any, in such Member’s Capital Account as of the
end of the relevant Fiscal Year, after giving effect to the following
adjustments:  add to such Capital Account
any amount which such Member is treated as obligated to restore pursuant to
Regulations Section 1.704-1(b)(2)(ii)(c) by virtue of such Member’s guarantee
or indemnity agreement with respect to any Company debt or is deemed obligated
to restore pursuant to the penultimate sentences of Sections 1.704-2(g)(1) and
1.704-2(i)(5) of the Regulations; and subtract from such Capital Account the
items described in Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5)
and 1.704-1(b)(2)(ii)(d)(6) of the Regulations. The foregoing definition of
Adjusted Capital Account Deficit is intended to comply with the provisions of
Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be interpreted
consistently therewith.


 


27

















 


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


 


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


 


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


 


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


 


10.3.4              Adjustments to Capital Accounts. If the value for Capital Account
purposes of any Operating Company property is adjusted pursuant to Section 9.3 or Section 10.3.7 hereof, subsequent allocations of income, gain,
loss, and deduction with respect to such asset shall take account of any
variation between the adjusted basis of such asset for federal income tax
purposes and its adjusted value in the same manner as under Section 704(c) of
the Code and the Regulations thereunder.


 


28

















 


10.3.5              Corrective Allocations. Corrective allocations
(consisting of a pro rata portion of each item) of items of gross income and
gain, or gross loss and deduction, shall be specially allocated to take into
account the differences in the Operating Company’s corresponding book items as
a result of Section 9.3.4.


 


10.3.6              Allocation of
Class A Option and Other Compensation Deductions. Any deductions for compensation
associated with the grant or exercise of a Class A Option, or the payments
under Section 15.4, shall be
allocated solely to the Management Company and without regard to the provisions
of Sections 10.1 and 10.2 hereof.


 


10.3.7              Revaluation
Upon Additional Contributions. As of the date hereof and as of the date of payment of the
SKT Commitment, the Operating Company shall revalue its properties. If such
revaluation results in a net book loss, such loss shall be allocated (i) first,
to the Common Members in the ratio of their Capital Account balances until such
balances are equal to zero; and (ii) second, to the Preferred Members so that
the ratio of the Capital Account balances of such Members equal, as nearly as
possible, the ratio of their Percentage Interests, after taking into account
any adjustment to such Percentage Interests pursuant to Section 9.1.4. If such revaluation results
in a net book gain, such gain shall be allocated to the Preferred Members so
that the ratio of the Capital Account balances of such Members equal, as nearly
as possible, the ratio of their Percentage Interests, after taking into account
any adjustment to such Percentage Interests pursuant to Section 9.1.4.


 


10.4.                     Other Allocation Rules.


 


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


 


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


 


29

















 


such section as modified, the economic
intentions of the Members would be distorted, the economic intentions of the
Members shall govern.


 


10.4.3              Closing of the Books Method. If a Member Transfers its
interest in the Operating Company, the distributive shares of the various items
allocable among the Members during such Fiscal Year of the Operating Company
shall be allocated between the transferor and the transferee based on the
closing-of-the-books method, which will result in the allocation of items
between the transferor and the transferee based on the respective portions of
such Fiscal Year in which each was a Member. However, if both the transferor
and the transferee consent, the distributive shares of the various items
allocable among the Members may be allocated between the transferor and the
transferee on the basis of the number of days in such Fiscal Year preceding and
following the effective date of the transfer. Moreover, the distributive share
of the various items allocable among the Members as a result of (i) the
exercise of an Operating Company Option in connection with the exercise of a
Class A Option or warrant to purchase Class A Common Stock or (ii) the
Management Company issuing any additional Class A Common Stock to third
parties, shall be allocated between the transferor and transferee on the basis
of the number of days in such Fiscal Year preceding and following the effective
date of the transfer.


 


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


 


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


 


ARTICLE 11

DISTRIBUTIONS


 


11.1.                     Distributions. Except
as otherwise provided in Sections 11.2, 11.4,
11.5 and 11.6 below,
all distributions to Members with respect to each Fiscal Year shall be made, at
such time and in such amounts, if any, as the Management Company shall
determine, as follows:


 


11.1.1              Preferred Members. First, distributions for any
Fiscal Year shall be made to the Preferred Members in accordance with their
Percentage Interests until the balances of the Capital Accounts of the Common
Members, when divided by total Capital Accounts, equal their respective
Percentage Interests.


 


30

















 


11.1.2              Positive Capital Accounts. Second, distributions for any
Fiscal Year shall be made to the Members in accordance with the Members’
respective positive Capital Account balances until such Capital Accounts are
equal to zero.


 


11.1.3              Percentage Interests. Third, distributions for any
Fiscal Year shall be made among the Members in accordance with their respective
Percentage Interests.


 


11.2.                     Distribution of
the Proceeds upon Dissolution. Upon a dissolution of the
Operating Company, except as otherwise provided in Section 11.4 below, the net proceeds of dissolution shall be
applied and distributed in the order of priority set forth below.


 


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


 


11.2.2              Member Loans. Second, towards repayment of
outstanding loans, if any, made by Members to the Operating Company, provided,
however, any amounts owed to EarthLink or SKT Holdings in connection with the
Note Purchase and Security Agreement and Guaranty, dated July 23, 2007, between
the Operating Company, the Management Company, EarthLink and SKT Holdings will
be pari pasu with obligations set forth in Section
11.2.1.


 


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


 


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


 


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


 


11.4.                     Mandatory Tax
Distribution. The Operating Company shall, to the extent that
sufficient free cash flow is available, distribute to each Member on a
quarterly basis the product of (i) such Member’s share of the Operating Company’s
quarterly profits, and (ii) the highest marginal federal income tax rate plus
five percent (5%). In the event the Operating Company’s free cash flow is
insufficient to fund such distributions, the Operating Company shall make
distributions of the free cash flow it has, in proportion to amounts that would
otherwise be payable. Notwithstanding the foregoing, any distribution to a
Common Member pursuant to this Section 11.4 shall
be treated as a non-interest bearing advance of any distribution to which such
Common Member might be entitled to receive pursuant to Sections 11.1 or 11.2 of this Agreement,
which must be repaid to the extent such Common Members are not subsequently
entitled to receive such distributions under Sections
11.1 or 11.2 of this Agreement. Any distributions to which Common
Members become entitled to receive pursuant to Sections 11.1 or 11.2 above shall be withheld to repay any of
the advances made pursuant to this Section
11.4.


 


11.5.                     Special
Distribution to Management Company. Whenever any distributions are
to be made to the Members with respect to a Fiscal Year pursuant to Section 11.1 above (but


 


31

















 


not Sections 11.2 or 11.4), the Operating
Company shall distribute to the Management Company, for (i) each holder (who is
not then an employee of the Operating Company) of unexercised Class A Options
which are vested at that time and/or (ii) each holder of Class A Common Stock
who is not then an employee of the Operating Company or a Member, an aggregate
amount of cash that equals the “Equivalent Amount” with respect to each such
holder. Such distribution shall (i) be a special distribution to the Management
Company, (ii) be made regardless of whether the Management Company otherwise is
entitled to any such distribution pursuant to Section
11.1 and in addition to any such distribution that the Management
Company is entitled to receive (determined after taking into account the
reduction in the Management Company’s Capital Account resulting from the
special distribution described in this Section
11.5), (iii) reduce the then aggregate distribution that otherwise
would be made absent this Section 11.5
and (iv) then be paid by the Management Company with each holder (who is not
then an employee of the Operating Company) of unexercised Class A Options which
are vested at that time and/or each holder of Class A Common Stock who is not
then an employee of the Operating Company or a Member entitled to receive such
holder’s respective “Equivalent Amount.” 
No distribution under this Section
11.5 shall be made to the Management Company with respect to any
such Class A Options that are not vested at the time of distribution. No
distributions shall be made hereunder after all of the Membership Units (other
than those held by the Management Company) are exchanged for shares of Class A
Common Stock pursuant to the terms of Article
15 or after a Public Offering. All distributions to be made
hereunder shall be made contemporaneously with the distribution to the Members
pursuant to Section 11.1, except
that, in the event any portion of this special distribution would result in
income to the Management Company, such as where the Management Company does not
have sufficient tax basis in its Membership Units to offset the distribution or
sufficient losses, including net operating loss carrybacks and carryovers, to
offset the resulting income, such portion of the distribution shall not be made
to the Management Company (nor shall any such related amounts be paid by the
Management Company to any holder (who is not then an employee of the Operating
Company) of unexercised Class A Options and/or any holder of Class A Common
Stock who is not then an employee of the Operating Company or a Member). Such
excess portion instead shall be an additional compensatory payment to be made
under Section 15.4 to each holder
entitled to receive an amount thereunder. In that case, each such holder then
entitled to receive an amount under Section
15.4 shall be entitled to receive a percentage of the above excess
portion equal to (i) the aggregate excess portion multiplied by (ii) a
percentage, the numerator of which is the amount the holder is then entitled to
receive under Section 15.4 and the
denominator of which is the aggregate amounts that all holders are then
entitled to receive under Section 15.4.
All additional compensatory payments to be made hereunder shall be paid, less
applicable tax withholdings, contemporaneously with the distribution to the
Members pursuant to Section 11.1. For
purposes of determining the excess portion of the special distribution to be
paid as compensation under Section 15.4,
any losses that would be allocated to the Management Company resulting from the
compensation to be paid under this Section
11.5 shall not be counted.


 


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


 


32

















 


ARTICLE 12

ANCILLARY AGREEMENTS; OPERATING BUDGETS; FINANCIAL REPORTS


 


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


 


12.2.                     Operating
Budgets. Not later than October 1st of each year, the CEO
of the Operating Company shall submit to the Management Company the Business
Plan.


 


12.3.                     Financial Reports.


 


12.3.1              Annual Statements. As soon as practicable following
the end of each Fiscal Year, but in no event more than thirty (30) days beyond
the end of the Operating Company’s fiscal year, the Operating Company shall
cause to be prepared and delivered to each Class B Member the audited
statement of income and statement of cash flows for such Fiscal Year, audited
balance sheet as of the end of such Fiscal Year, and accompanying notes to
financial statements for the Operating Company, on a consolidated basis,
prepared in accordance with GAAP and the Operating Company accounting
practices.


 


12.3.2              Quarterly Statements. As soon as practicable following
the end of each fiscal quarter, but in any event within seven (7) days after the end of such
quarter, the Operating Company shall cause to be prepared and delivered to each
Class B Member an unaudited statement of income (including taxable income)
and statement of cash flows for such quarter and an unaudited balance sheet as
of the end of such quarter on a consolidated basis, prepared in accordance with
GAAP and the Operating Company accounting and tax practices.


 


12.3.3              Monthly Statements. Each month, the Operating
Company shall provide the Class B Members preliminary net income (loss)
for the just completed month by the end of the third (3rd) business day
following the end of such month. In addition, as soon as possible following the
end of each calendar month in each Fiscal Year, but in any event within seven
(7) days after the end of such month, the Operating Company shall cause to be
prepared and delivered to the Class B 
Member an unaudited statement of income (including taxable income) and
statement of cash flows for such month and an unaudited balance sheet as of the
end of such month on a consolidated basis, prepared in accordance with GAAP and
the Operating Company accounting and tax practices. The Operating Company shall
provide the Class B Members with a monthly report of significant operating
and financial statistics including number of subscribers, subscriber churn
statistics, minutes of use, average revenues per subscriber, acquisition costs
and capital expenditure efficiency statistics and such additional statistics
and information as may be approved from time to time by the Management Company
for internal use by the Operating Company.


 


12.3.4              Additional Information. The Operating Company shall,
upon reasonable notice, give each of the Class B Members, for so long as
it Beneficially Owns Membership Units, during regular business hours,
reasonable access to the properties, documents


 


33

















 


and records, financial and otherwise, of the
Operating Company, and shall provide copies or extracts of the Operating
Company’s documents and records as the Class B Members may reasonably
request.


 


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


 


ARTICLE 13

TERMINATION OF THE OPERATING COMPANY; LIQUIDATION

AND DISTRIBUTION OF ASSETS


 


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


 


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


 


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


 


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


 


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


 


13.3.                     Survival. In the event of a
dissolution, this Agreement and the provisions set forth herein shall
terminate, except Articles 1, 13,  17 and 18
and Section 16.8, which shall
survive for the applicable periods set forth therein or, if none stated,
indefinitely.


 


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


 


34




















 


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


 


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


 


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


 


ARTICLE 14

WITHDRAWAL OF A MEMBER


 


14.1.       Withdrawal of a Member. A
Member shall cease to be a Member if it no longer Beneficially Owns any
Membership Units (a “Withdrawal Event”).
Immediately after a Withdrawal Event, the withdrawn Member and its Affiliates
shall have no continuing rights or obligations under this Agreement but will
remain subject to the terms of Ancillary Agreements to the extent provided by,
and in accordance with, the express terms thereof. Subject to compliance with Article 4 hereof, a Member may
voluntarily cause a Withdrawal Event and such action shall not be a breach of
this Agreement.


 


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


 


ARTICLE 15

EXCHANGE


 


15.1.       Exchange of Membership Units. Excluding
the Management Company, 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 pursuant to the terms of this Article 15
and the Management Company Certificate. The number of shares of Class A
Common Stock obtained from the exchange of the Membership Units shall be
determined by multiplying the number of Membership Units to be exchanged by the
Membership Unit Exchange Rate then in effect. Such right shall be exercised by
the holder of the Membership Units to be exchanged by surrendering the
certificate(s) 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


 


 


35

















 


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 Units exchanged on the books of the Operating Company. Notwithstanding
the foregoing, if Preferred Membership Units are exchanged for shares of Class
A Common Stock, the Preferred Membership Units being exchanged shall
automatically convert into an equal number of Common Membership Units
immediately prior to the exchange. As a result, the Management Company shall be
named as the record holder of the Common Membership Units resulting from the
conversion of the Preferred Membership Units on the books of the Operating
Company. The “Membership Unit Exchange Rate”
shall be initially set at one (1). In the event there is any stock split,
distribution, dividend, combination (as set forth in Articles 5.13 and 5.14 of
the Management Company Certificate) or similar transaction related to the
Class A Common Stock in which there is not an identical combination or
split or similar transaction related to the Membership Units, the Membership
Unit Exchange Rate in effect immediately after such event shall be equal to the
Membership Unit Exchange Rate in effect immediately before such event
multiplied by (a) the number of shares of Class A Common Stock outstanding
immediately after such event, and divided by (b) the number of shares of
Class A Common Stock outstanding immediately before such event. In the
event there is any split, combination or other similar transaction related to
the Membership Units in which there is not an identical stock split,
distribution, dividend, combination or similar transaction related to the
Class A Common Stock, the Membership Unit Exchange Rate in effect
immediately after such event shall be equal to the Membership Unit Exchange
Rate in effect before such event multiplied by (a) the number of Membership
Units outstanding immediately before such event, and divided by (b) the number
of Membership Units outstanding immediately after such event. The Management
Company agrees that upon any such surrender, the Management Company shall issue
the appropriate number of shares of Class A Common Stock to the Member. No
exchange of Membership Units shall be effective until such time as the
appropriate number of fully paid non-assessable shares of Class A Common
Stock shall have been duly issued in exchange therefor.


 


15.2.       Public Offering of Class A Common
Stock. Upon completion of a Public Offering by the
Management Company and contribution of the net proceeds from such Public
Offering to the Operating Company, the Operating Company shall issue to the
Management Company a number of Common Membership Units determined by dividing
such net proceeds by the then average fair market value of a Preferred
Membership Unit, which is the amount that would be received for such Preferred
Membership Unit upon a hypothetical dissolution of the Operating Company
immediately prior to the contribution of the net proceeds from such Public
Offering.


 


15.3.       Issuance and Conversion of Preferred
Stock. Upon the Management Company’s issuance of
shares of Preferred Stock that are convertible to shares of Class A Common
Stock and contribution of the net proceeds from such issuance to the Operating
Company, the Operating Company shall issue to the Management Company a number
of Common Membership Units determined by dividing such net proceeds by the then
average fair market value of a Preferred Membership Unit which is the amount
that would be received for such Preferred Membership Unit upon a hypothetical
dissolution of the Operating Company immediately prior to the contribution of
the net proceeds from the issuance of such shares of Preferred Stock. The
holder of any shares of convertible Preferred Stock may exercise its right


 


36

















 


to convert the
shares to shares of Class A Common Stock in accordance with the terms of
the Preferred Stock.


 


15.4.       Equity Plan Compensation. Upon the Management
Company’s issuance of a Class A Option, the Management Company shall be
granted a corresponding Operating Company Option. Upon the Management Company’s
issuance of shares of Class A Common Stock in connection with the exercise
of a Class A Option, the Management Company shall be deemed to exercise
the corresponding Operating Company Option and the Management Company will
contribute the exercise price of the corresponding Class A Option to the
Operating Company. The Management Company shall be entitled to receive one
Common Membership Unit upon exercise of an Operating Company Option in exchange
for the remitted exercise price of the corresponding Class A Option. In
the event there is any stock split, distribution, dividend, combination (as set
forth in Articles 5.13 and 5.14 of the Management Company Certificate) or
similar transaction related to the Class A Common Stock in which there is not
an identical combination or split or similar transaction related to the
Membership Units, the number of Common Membership Units that the Management
Company will be entitled to receive in connection with the exercise of a Class A
Option shall be adjusted as equitably required so as to not enlarge or dilute
the purposes of this provision. Whenever any distributions are to be made to
Members with respect to a Fiscal Year pursuant to Section 11.1 above (but not Sections
11.2 or 11.4), the Operating Company shall make a payment to (i)
each holder (who is then an employee of the Operating Company) of unexercised
Class A Options which are vested at that time and/or (ii) each holder of Class
A Common Stock who is then an employee of the Operating Company an amount of
cash that equals the “Equivalent Amount”
with respect to each such holder, less any applicable tax withholdings. The
Equivalent Amount shall be that amount which equals the product of (i) the
aggregate distribution that the Management Company proposes to make to the
Members pursuant to Section 11.1
above (before payments pursuant to this Section
15.4 and distributions pursuant to Section
11.5) multiplied by (ii) the percentage determined by dividing (x)
the number of shares of Class A Common Stock that such holder owns or could
acquire pursuant to the exercise of the holder’s vested Class A Options by (y)
the sum of the Total Outstanding Shares plus the number of shares of Class A
Common Stock that would be issued if all vested and unexercised Class A Options
were then exercised. Such payment shall be (i) additional compensation to such
holders and (ii) shall reduce the aggregate distribution that otherwise would
be made under Section 11.1 absent
this Section 15.4. No payments under
this Section 15.4 shall be made to
any holder of a Class A Option with respect to any such Class A Option that is
not vested at the time of the distribution. Additionally, no payments shall be
made hereunder after all of the Membership Units (other than those held by the
Management Company) are exchanged for shares of Class A Common Stock pursuant
to the terms of Article 15 or
after a Public Offering. All payments to be made hereunder shall be made
contemporaneously with the distribution to the Members pursuant to Section 11.1.


 


15.5.       Availability of Authorized and
Unissued Class A Common Stock. The Management
Company will at all times reserve and keep available a sufficient number of
authorized but unissued shares of Class A Common Stock to permit the conversion
of the outstanding shares of Class B Common Stock, Membership Units, and
shares of convertible Preferred Stock and the exercise of any outstanding
Class A Options. The Management Company covenants that if any shares of
Class A Common Stock require registration with or approval of any
governmental authority under any foreign, federal or state law before such


 


37

















 


shares of
Class A Common Stock may be issued upon such conversion or exchange, the
Management Company will promptly cause such shares to be so registered or
approved, as the case may be. The Management Company will use its reasonable
best efforts to list the shares of Class A Common Stock required to be
delivered by the Operating Company upon such conversion or exchange prior to
such delivery upon each national securities exchange or other recognized
trading market upon which the outstanding Class A Common Stock is listed
at the time of such delivery. The Management Company covenants that all shares
of Class A Common Stock that are issued, converted or exchanged as
provided in this Article 15
shall, upon issuance, be validly issued, fully paid and non-assessable.


 


ARTICLE 16

ADDITIONAL AGREEMENTS


 


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


 


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


 


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


 


ANY SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THE
LIMITED LIABILITY COMPANY INTERESTS


 


38

















 


REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY, AND SUBJECT TO, THE
TERMS AND PROVISIONS OF AN AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT BETWEEN
HELIO, INC. AND THE STOCKHOLDERS SET FORTH THEREIN AND A SECOND AMENDED AND
RESTATED LIMITED LIABILITY COMPANY AGREEMENT BETWEEN HELIO LLC AND THE MEMBERS
NAMED THEREIN, EACH DATED THE         DAY OF
             ,
2007. A COPY OF THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT AND THE SECOND
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT IS ON FILE WITH THE
SECRETARY OF THE COMPANY. BY ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER HEREOF
AGREES TO BECOME BOUND BY THE AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT AND
THE SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT.


 


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


 


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


 


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


 


16.6.       Most Favored Pricing. Each of SKT Holdings
and EarthLink shall use its reasonable best efforts to offer its products and
services to the Operating Company on most favored customer pricing terms for
substantially similar volumes of substantially similar products and services that
are generally offered in the United States. If the Operating Company agrees to
such pricing, the Operating Company and EarthLink or SKT, as applicable, shall
enter into commercially reasonable agreements containing such pricing and other
commercially standard terms.


 


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


 


39

















 


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


 


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


 


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


 


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


 


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


 


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


 


16.9.       Non-Hire and Non-Solicitation of
Employees. A Class B Member shall not hire or
attempt to hire any executive officers of the Operating Company while it or a
Subsidiary owns a share of Class B Common Stock without the consent of the
Class B directors; provided, however, that nothing herein shall be deemed to
prohibit (i) SKT from hiring any former SKT employees; provided that such
employees terminate their employment relationship with the Operating Company,
which termination was not induced by SKT or affiliates of SKT, or (ii) a
Class B Member from conducting solicitations of the general public for
employment by such Class B Member.


 


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


 


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


 


40

















 


such employees
and officers in their capacity as employees and officers in such amounts as the
Management Company shall determine are adequate.


 


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


 


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


 


ARTICLE 17

DISPUTE RESOLUTION


 


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


 


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


 


41

















 


confidential and shall be treated as
compromise and settlement negotiations for purposes of applicable rules of
evidence.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


42

















 


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


 


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


 


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


 


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


 


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


 


ARTICLE 18

MISCELLANEOUS


 


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


 


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


 


43

















 


If to SKT
Holdings:


 


SK Telecom USA Holdings, Inc.


c/o SK Telecom Co., Ltd.


11, Euljiro2-ga, Jung-gu


Seoul, 100-999, Korea


Attention: 
Jin Woo So, President


Facsimile: 
(822) 6100-7966


 


with a copy to:


 


SK Telecom
Co., Ltd.


11, Euljiro2-ga, Jung-gu


Seoul, 100-999, Korea


Attention:  Mr. Seung – Kook Synn


Facsimile:  (822) 6100-7966


 


with a copy to:


 


Baker & McKenzie


14th Floor, Hutchinson House, 10
Harcourt


Hong Kong, SAR


Attention: 
Mr. Won Lee


Facsimile: 
(852) 2845-0476


 


If to EarthLink:


 


EarthLink, Inc.


1375 Peachtree Street, N.E.


Atlanta, Georgia  30309


Attention: 
Rolla P. Huff, Chief Executive Officer


Facsimile: 
(404) 892-7616


Copy to: 
General Counsel


 


with a copy to:


 


Troutman Sanders LLP


600 Peachtree Street, N.E., Suite 5200


Atlanta, Georgia 30308


Attention: 
David M. Carter


 


Facsimile: 
(404) 962-6598


 


If to the Operating Company:


 


HELIO LLC


10960 Wilshire Blvd., Suite 700


Los Angeles, California 90024


 


44

















 


Attention: 
Sky D. Dayton, Chief Executive Officer


Facsimile: 
(310) 996-1368


 


with a copy to:


 


HELIO, Inc.


10960 Wilshire Blvd., Suite 700


Los Angeles, California 90024


Attention: 
Legal Department


Facsimile: 
(310) 312-8889


 


With a copy
to:


 


Kirkpatrick & Lockhart Preston Gates
Ellis LLP


10100 Santa Monica Blvd, Seventh Floor


Los Angeles, California 90067


Attn: 
Thomas J. Poletti


Facsimile: 
(310) 552-5001


 


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


 


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


 


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


 


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


 


18.7.       Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the Members and
their respective successors and permitted assigns and shall not be assignable
except to the extent expressly permitted hereby and any purported assignment of
this Agreement or of any Membership Units in violation of this Agreement shall
be null and void and


 


45

















 


of no force or
effect. The rights and obligations under this Agreement shall be assigned by a
Member to a transferee in connection with the Transfer to such transferee
pursuant to Section 4. Other
than amounts with respect to the SKT Triggering Contribution, SKT may assign
the SKT Contribution Right, in whole or in part, to any Person.


 


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


 


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


 


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


 


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


 


[Signatures on following page]


 


46

















 


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


 


 


	
   

  	
  EARTHLINK, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SK TELECOM USA
  HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Jin Woo So, President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HELIO, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Sky D. Dayton, Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HELIO LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  HELIO, INC.

  
	
   

  	
  Its:

  	
  Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Sky D. Dayton, Chief Executive Officer

  



 


 


[Signature Page to Operating Agreement]


 

















 


Schedule 9.1.1


 


Initial Capital
Contribution


 


	
  Member

  	
   

  	
  Percentage

  Interest

  	
   

  	
  Initial Cash

  Contributions

  	
   

  	
  Non-Cash

  Contributions

  	
   

  	
  Membership

  Units

  	
   

  	
  Type of

  Membership

  Unit

  	
   

  
	
  SKT Holdings

  	
   

  	
  50.00000

  	
  %*

  	
  $

  	
  220,000,000

  	
   

  	
  $

  	
  0

  	
   

  	
  50,000,000

  	
   

  	
  Preferred Membership Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EarthLink

  	
   

  	
  50.00000

  	
  %*

  	
  $

  	
  180,000,000

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  50,000,000

  	
   

  	
  Preferred Membership Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Management Company

  	
   

  	
  0.00000

  	
  %*

  	
  $

  	
  8.80

  	
   

  	
  $

  	
  0

  	
   

  	
  2

  	
   

  	
  Common Membership Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  100.00

  	
  %

  	
  $

  	
  400,000,008.80

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  100,000,002

  	
   

  	
   

  	
   

  



 






* The Members shall revise Schedule
9.1.1 from time to time to reflect the then current Percentage
Interests of the Members upon the occurrence of any of the following: (a) the
admission of an Additional Member pursuant to Section
8.1, (b) the admission of a New Member pursuant to Section 8.2, (c) the contribution of Additional Capital
pursuant to Section 9.1.2 or 9.1.3,
or (d) the exercise of the Operating Company Option pursuant to Section 15.4. As of October 29, 2007, the
revised Schedule 9.1.1 shall be in the
form attached hereto as Addendum 1.


 

















 


Addendum 1 to


 


Schedule 9.1.1


 


Capital Contribution
as of October 29, 2007


 


	
  Member

  	
   

  	
  Percentage

  Interest

  	
   

  	
  Cash

  Contributions

  	
   

  	
  Non-Cash

  Contributions

  	
   

  	
  Membership

  Units

  	
   

  	
  Type of

  Membership

  Unit

  	
   

  
	
  SKT Holdings

  	
   

  	
  47.36695

  	
  %*

  	
  $

  	
  220,000,000

  	
   

  	
  $

  	
  0

  	
   

  	
  50,000,000

  	
   

  	
  Preferred Membership Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EarthLink

  	
   

  	
  47.36695

  	
  %*

  	
  $

  	
  180,000,000

  	
   

  	
  $

  	
  40,000,000

  	
   

  	
  50,000,000

  	
   

  	
  Preferred Membership Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Management Company

  	
   

  	
  5.26609

  	
  %*

  	
  $

  	
  8,147,218.80

  	
   

  	
  $

  	
  1,374,262.50

  	
   

  	
  5,558,827

  	
   

  	
  Common Membership Units

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
  100.00

  	
  %

  	
  $

  	
  408,147,218.80

  	
   

  	
  $

  	
  41,374,262.50

  	
   

  	
  105,558,827

  	
   

  	
   

  	
   

  



 






* The Members shall revise Schedule
9.1.1 from time to time to reflect the then current Percentage
Interests of the Members upon the occurrence of any of the following: (a) the
admission of an Additional Member pursuant to Section
8.1, (b) the admission of a New Member pursuant to Section 8.2, (c) the contribution of Additional Capital
pursuant to Section 9.1.2 or 9.1.3,
or (d) the exercise of the Operating Company Option pursuant to Section 15.4.


 

















 


Schedule 9.1.2


 


SKT Contributions


 


	
  SKT

  Contributions

  	
   

  	
  Date of

  Contribution

  	
   

  	
  Amount of

  Contribution

  	
   

  	
  Price Per

  Unit

  	
   

  	
  Number of

  Membership

  Units

  	
   

  	
  Type of

  Membership Unit

  
	
  SKT Required
  Contribution

  	
   

  	
                ,
  2007

  	
   

  	
  $

  	
  70,000,000*

  	
   

  	
  $

  	
  3.00

  	
   

  	
  23,333,333*

  	
   

  	
  Preferred Membership Units

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SKT
  Triggering Contribution

  	
   

  	
  Prior to June 30, 2008

  	
   

  	
  $

  	
  80,000,000

  	
   

  	
  $

  	
  3.00

  	
   

  	
  26,666,666

  	
   

  	
  Preferred Membership Units

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SKT
  Additional Capital

  	
   

  	
  Prior to December 31, 2009

  	
   

  	
  $

  	
  120,000,000

  	
   

  	
  To
  be determined

  	
   

  	
  To
  be determined

  	
   

  	
  Preferred Membership Units

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TOTAL

  	
   

  	
   

  	
   

  	
  Up to $270,000,000

  	
   

  	
  N/A

  	
   

  	
  To
  be determined

  	
   

  	
  Preferred Membership Units

  







* The contribution amount and number of Membership Units is based on
the principal under the exchangeable promissory notes being exchanged with
respect to the SKT Required Contribution. Such numbers will be increased to
reflect the amount of interest accrued under such notes on the date of the
closing of such contribution.