Exhibit 10.3


 


FORM OF


 


SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION


 


OF


HELIO, INC.


 


HELIO, Inc. hereby certifies as follows:


 


1.                                       The
original Certificate of Incorporation of HELIO, Inc. (previously known as
SK-EarthLink Management Corp.), filed with the Delaware Secretary of State on
January 27, 2005, as amended on October 24, 2005 and amended and restated by
the Amended and Restated Certificate of Incorporation of HELIO Inc., filed with
the Delaware Secretary of State on March 4, 2007;


 


2.                                       The
Board of HELIO Inc., by unanimous written consent in lieu of a meeting, adopted
resolutions proposing and declaring advisable this Second Amended and Restated
Certificate of Incorporation in accordance with the applicable provisions of
Section 242 and 245 of the General Corporation Law of the State of Delaware;


 


3.                                       The
holders of a majority of the shares of Class A Common Stock and Class B Common
Stock together as a single class and the holders of all of the issued and
outstanding shares of Class B Common Stock, by written consent in lieu of a
meeting, adopted resolutions consenting to and approving this Second Amended
and Restated Certificate of Incorporation, in accordance with the applicable
provisions of Sections 242 and 245 of the General Corporation Law of the State
of Delaware;


 


4.                                       This
Second Amended and Restated Certificate of Incorporation, having been adopted
in accordance with the applicable provisions of Section 242 and 245 of the
General Corporation Law of Delaware, restates, integrates, supplements and
further amends the provisions of the Certificate of Incorporation previously
filed with the Delaware Secretary of State; and


 


5.                                       The
text of the Amended and Restated Certificate of Incorporation of HELIO, Inc. is
amended and restated in its entirety to read as follows:


 


ARTICLE 1

NAME


 


The name of
the corporation is:  HELIO, Inc.


 

















 


ARTICLE 2

REGISTERED AGENT AND OFFICE


 


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


 


ARTICLE 3

PURPOSE OF THE MANAGEMENT COMPANY


 


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


 


ARTICLE 4

CAPITAL STOCK


 


4.1                               Authorized
Capital Stock. The Management Company shall have the authority to issue
two hundred fifty million four (250,000,004) shares of its capital stock
consisting of: (a) two hundred thirty million two (230,000,002) shares of Class
A Common Stock, par value $0.01 per share (the “Class A Common Stock”); (b) two (2) shares of Class B Common
Stock, par value $0.01 per share (the “Class
B Common Stock”) and (iii) twenty million (20,000,000) shares of
Preferred Stock, par value $0.01 per share (the “Preferred Stock”); issuable in one or more series as
hereinafter provided. The Class A Common Stock and the Class B Common Stock
shall hereinafter collectively be called the “Common
Stock”. The number of authorized shares of any class of capital
stock of the Management Company may be increased or decreased (but not below
the number of shares thereof then outstanding) upon: (a) the affirmative vote
of the holders of a majority of the voting power of such class of capital stock
of the Management Company, and (b) the unanimous approval of the holders of
Class B Common Stock, if outstanding, in each case voting separately as a
class.


 


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


 


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


 


4.3.1                     Class A
Common Stock. Each holder of Class A Common Stock shall be entitled to
one vote for each share of Class A Common Stock held by such holder on all
matters submitted to a vote of Stockholders, other than matters reserved
exclusively to holders of another


 


2

















 


class of
capital stock. The holders of Class B Common Stock, that also hold shares of
Class A Common Stock, shall be entitled to vote their shares of Class A Common
Stock, but shall not be entitled to the increased voting multiple described in Section 4.3.2, below, on any matter
reserved exclusively to holders of Class A Common Stock.


 


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


 


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


 


4.3.4                     Cumulative
Voting. There shall be no cumulative voting.


 


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


 


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


 


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


 


4.4.3                     Dividends
of Voting Securities. In the case of dividends or other distributions
consisting of Voting Securities of any corporation or other Entity, which is a
Subsidiary of the Management Company or any Voting Securities convertible into
the same, the Management Company shall declare and pay such dividends in two
separate classes of such


 


3

















 


Voting
Securities, identical in all respects, except that: (a) the voting rights of
each such security paid to the holders Class B Common Stock, when compared to
the voting rights of each such security paid to the holders of Class A Common
Stock, shall have proportionately greater voting rights determined pursuant to
the same formula as provided in Article 4.3.2,
above; (b) such security paid to the holders of Class B Common Stock shall
convert into the security paid to the holders of Class A Common Stock upon the
same terms and conditions applicable to the conversion of Class B Common Stock
into Class A Common Stock and shall have the same restrictions on ownership
applicable to the ownership of Class B Common Stock; and (c) the respective
voting rights of each such security paid to holders of Class A Common Stock and
Class B Common Stock with respect to the election of directors shall otherwise
be as comparable as is practicable, as determined by the Board, to those of the
Class A Common Stock and Class B Common Stock, respectively.


 


4.5                               Preferred
Stock. The rights and obligations of the holders of Preferred Stock
shall be set forth and provided by this Article
4.5. The Board, with the consent of the Class B Directors in
accordance with Article 6.2, may
issue shares of Preferred Stock in one or more series from time to time, and,
fix by resolution the designations, powers, preferences and rights, and the
qualifications, limitations and restrictions of the shares of each series of
Preferred Stock, including without limitation the following:


 


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


 


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


 


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


 


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


 


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


 


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


 


4

















 


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


 


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


 


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


 


ARTICLE 5

CONVERSIONS; EXCHANGES AND ISSUANCE OF
STOCK


 


5.1                               Conversion
of Class B Common Stock.


 


5.1.1                     Voluntary
Conversion. Each holder of Class B Common Stock shall be entitled to
convert, at any time and from time to time, any or all of the shares of such
holder’s Class B Common Stock into validly issued, fully paid and
non-assessable shares of Class A Common Stock. The number of shares of Class A
Common Stock obtained from the conversion of the Class B Common Stock shall be
determined by multiplying the number of shares of Class B Common Stock to be
converted by the Class B Conversion Rate then in effect. Such right shall be
exercised by the holder of the Class B Common Stock to be converted by
surrendering the certificate representing the shares of Class B Common Stock to
be converted to the Management Company, during normal business hours at the
principal offices of the Management Company, accompanied by a written notice
from the holder stating the shares of Class B Common Stock are being presented
for conversion. Upon exercise of such conversion right, the Management Company
shall issue the appropriate number of shares of Class A Common Stock to the
holder of the shares of Class B Common Stock being converted and reflect the
Transfer on the books of the Management Company. The “Class B Conversion Rate” shall be initially set at one (1). In
the event there is any stock split (as set forth in Article 5.14), dividend, combination (as set forth in Article 5.15) or similar transaction related
to the Class A Common Stock, the Class B Conversion Rate in effect immediately
after such event shall be equal to the Class B Conversion Rate in effect
immediately before such event multiplied by (a) the number of shares of Class A
Common Stock outstanding immediately after such event, and divided by (b) the
number of shares of Class A Common Stock outstanding immediately before such
event


 


5.1.2                     Involuntary
Conversion. Upon a Triggering Event, the Class B Common Stock of the
Triggering Party shall be automatically converted to Class A Common Stock as
provided in Article 5.12.


 


5

















 


5.2                               Exchange
of Membership Units. As provided in the Operating Agreement, a holder
of Membership Units may, at its option, exchange, at any time and from time to
time, any or all of its Membership Units for validly issued, fully paid and
non-assessable shares of Class A Common Stock. The number of shares of Class A
Common Stock obtained from the exchange of the Membership Units shall be
determined by multiplying the number of Membership Units to be exchanged by the
Membership Unit Exchange Rate then in effect. Such right shall be exercised by
the holder of the Membership Units to be exchanged by surrendering the
certificate representing the Membership Units to be exchanged to the Management
Company, during normal business hours at the principal offices of the
Management Company, accompanied by a written notice from the holder stating
that the Membership Units are being presented for exchange. Upon exercise of
such exchange right, the Management Company shall issue the appropriate number
of shares of Class A Common Stock to the holder of the Membership Units being
exchanged and, shall be named as the record holder of the Membership Unit
exchanged on the books of the Operating Company. The “Membership Unit Exchange Rate” shall be initially set at one
(1). In the event there is any stock split (as set forth in Article 5.14), dividend, combination (as
set forth in Article 5.15) or
similar transaction related to the Class A Common Stock in which there is not
an identical dividend, distribution, combination or split or similar
transaction related to the Membership Units, the Membership Unit Exchange Rate
in effect immediately after such event shall be equal to the Membership Unit
Exchange Rate in effect immediately before such event multiplied by (a) the
number of shares of Class A Common Stock outstanding immediately after such
event, and divided by (b) the number of shares of Class A Common Stock
outstanding immediately before such event. In the event there is any split, combination
or other similar transaction related to the Membership Units in which there is
not an identical stock split, dividend, distribution, combination or similar
transaction related to the Class A Common Stock, the Membership Unit Exchange
Rate in effect immediately after such event shall be equal to the Membership
Unit Exchange Rate in effect before such event multiplied by (a) the number of
Membership Units outstanding immediately before such event, and divided by (b)
the number of Membership Units outstanding immediately after such event


 


5.3                               Offering
of Class A Common Stock. The Board, with the consent of the Class B
Directors in accordance with Article 6.2,
may issue shares of Class A Common Stock in a Public Offering, and shall issue
shares of Class A Common Stock in a Public Offering as required under the
Registration Rights Agreement. Upon completion of a Public Offering of Class A
Common Stock by the Management Company, the Management Company shall contribute
the net proceeds from such Public Offering of Class A Common Stock to the
Operating Company, and, in exchange shall receive a number of Membership Units
from the Operating Company and, if applicable, the selling Class A Common Stock
holder, equal to the number of shares of Class A Common Stock issued in the
Public Offering determined by dividing the number of Class A Common Stock
issued in the Public Offering by the Membership Unit Exchange Rate then in effect.


 


5.4                               Issuance
and Conversion of Preferred Stock. The Board, with the consent of the
Class B Directors in accordance with Article 6.2,
may issue shares of Preferred Stock designated as provided in Article 4.5, above. If the Board issues
Preferred Stock that is convertible to shares of Class A Common Stock, then
upon completion of an issuance, the Management Company shall contribute the net
proceeds from the issuance to the Operating Company, and, in exchange, the
Management Company shall receive a number of Membership


 


6

















 


Units equal to
the number of shares of Preferred Stock issued divided by the product of (a)
the Membership Unit Exchange Rate then in effect and (b) the number of shares of
Class A Common Stock one share of Preferred Stock is then convertible into. The
holder of any shares of convertible Preferred Stock may exercise its right to
convert the shares to shares of Class A Common Stock in accordance with the
terms of the Preferred Stock.


 


5.5                               Equity
Compensation Plan. The Board, with the consent of the Class B Directors
in accordance with Article 6.2,
may issue options to purchase shares of Class A Common Stock (“Class A Options”) in accordance with the
terms of the Equity Compensation Plan. The recipient of such Class A Options
(the “Option Holder”) may exercise
its Class A Options by paying to the Management Company an amount equal to the
exercise price of the Class A Options then exercised. Upon exercise of such
Class A Options, the Management Company shall contribute the proceeds received
from the Option Holder to the Operating Company and, in exchange shall receive
a number of Membership Units from the Operating Company equal to the number of
shares of Class A Common Stock issued in connection with the exercise of the
Class A Options divided by the Membership Unit Exchange Rate then in effect.


 


5.6                               Surrender
of Certificates upon Conversion or Exchange. As promptly as practicable
following the surrender of certificates representing shares of Class B Common
Stock, Membership Units or convertible Preferred Stock in the manner provided
in Articles 5.1, 5.2 and 5.4, respectively, the Management Company
will deliver a certificate representing the number of shares of Class A Common
Stock issuable upon such conversion or exchange, issued in the name of the
holder. Such conversion or exchange shall be deemed to have been effected
immediately prior to the close of business on the date of the surrender of the
certificate or certificates representing shares of Class B Common Stock,
Membership Units or convertible Preferred Stock. Upon the date any such
conversion or exchange is made or effected, all rights of the holder of such
shares of Class B Common Stock, Membership Units or convertible Preferred Stock
in respect of such shares or units shall cease. The Person in whose name such
the certificate representing the shares of Class A Common Stock are to be
issued shall be treated for all purposes as having become the record holder of
such shares of Class A Common Stock.


 


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


 


5.8                               Stock
Certificates. The issuance of certificates for shares of Class A Common
Stock upon conversion of shares of Class B Common Stock, exchange of Membership
Units or conversion of Preferred Stock shall be made without charge to the
holders of such shares for any stamp or other similar transfer tax in respect
of such issuance; provided, that if any such certificate is to be
issued in a name other than that of the holder of the shares of Class B Common
Stock converted, the Membership Units exchanged or shares of Preferred Stock


 


7

















 


converted,
then the Person requesting the issuance thereof shall, prior to such issuance,
pay to the Management Company the amount of any tax that may be payable in
respect of any Transfer involved in such issuance or shall establish to the
satisfaction of the Management Company that such tax has been paid or is not
payable.


 


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


 


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


 


5.11                        Preemptive
Rights. In the event the Management Company proposes to offer, whether
by private sale or otherwise, any Common Stock, Preferred Stock or any other
equity securities of the Management Company (“New
Securities”) or any securities convertible into or exchangeable for New
Securities (except for issuances of Class A Common Stock in a Public Offering,
employee stock purchase, stock option or dividend reinvestment plan), each
holder of Class B Common Stock shall have the right, in accordance with this Article 5.11, to purchase from the
Management Company a sufficient portion of such New Securities offered to
ensure that its percentage of Total Outstanding Shares will not be reduced in
connection with such issuance. In the event a holder of Class B Common Stock
elects to exercise its rights under this Article
5.11, the purchase price per share or unit of New Securities shall
be equal to the per share consideration paid for New Securities issued to the
other party(ies). If, within fourteen (14) days following receipt from the
Management Company of a notice specifying the amount of New Securities to be
offered, a Class B Common Stockholder determines not to purchase its share of
such New Securities, then the other Class B Common Stockholder shall have the
right to purchase the unpurchased New Securities. If within fifteen (15) days
following receipt from the Management Company of a notice of such Class B
Common Stockholder’s right to purchase the unpurchased New Securities, the
other Class B Common Stockholders have failed to elect to purchase all of the
New Securities, the Management Company may issue such unpurchased New
Securities to any Person on substantially the same terms as offered to the
Class B Common Stockholders.


 


5.12                        Events
Triggering Conversion of Class B Common Stock. If a Triggering Event
(defined below) occurs, the party triggering the Triggering Event (the “Triggering Party”) shall have the rights
and obligations set forth in this Section
5.12. A “Triggering Event”
shall be deemed to have occurred if a holder of Class B Common Stock, together
with its Subsidiaries, ceases to own, directly or indirectly, at least ten
percent (10%) of the Total Outstanding Shares and, after written notice from
the other holder of Class B Common Stock (or the Management Company if there is
only one holder of Class B Common Stock), fails to acquire sufficient
additional Class A Common Stock, Membership Units or Class B Common Stock, as the
case may be, within thirty (30) days following receipt of such notice to
restore such holder’s percentage ownership of the Total Outstanding Shares to
at least ten percent (10%). In no event shall the Management Company, the
Operating Company or any other holder of JV


 


8

















 


Securities be
required to sell any JV Securities to alleviate such deficit. Upon the
occurrence of a Triggering Event, the following shall immediately and
automatically occur:  (a) the Class B
Common Stock of the Triggering Party shall convert into Class A Common Stock,
(b) the term of the Class B Directors appointed by the Triggering Party shall
end, (c) all rights of the Triggering Party associated with ownership of the
Class B Common Stock shall terminate and (d) all Strategic Decisions shall be
made by the remaining Class B Directors and any Class A Directors as provided in
Article 6. Once a Triggering Event
has occurred with respect to a Triggering Party, it shall continue
indefinitely.


 


5.13                        Type B
Triggering Event. A “Type B
Triggering Event” shall be deemed to have occurred if a holder of
Class B Common Stock, together with its Subsidiaries, ceases to own, directly
or indirectly, such number of the Total Outstanding Shares equal to at least
fifty percent (50%) of the other Class B Common Stock holder’s ownership of the
Total Outstanding Shares, and fails, after written notice from the other holder
of Class B Common Stock, to acquire additional Class A Common Stock, Membership
Units or Class B Common Stock, as the case may be, within thirty (30) days
after the receipt of such notice so as to no longer own less than fifty percent
(50%) of the other holder’s ownership of the Total Outstanding Shares. In no
event shall the Management Company, the Operating Company or any other holder
of JV Securities be required to sell any JV Securities to alleviate such
deficit.


 


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


 


5.15                        Mergers
and Consolidation. In the event that the Management Company, with the
approval of the Board in accordance with Article
6.2, enters into any consolidation, merger, combination or other
transaction in which shares of Common Stock are exchanged for or converted into
other stock or securities, cash or other property, then the shares of each
class of Common Stock shall be exchanged for or converted into either (a) the
same amount of stock, securities, cash or other property, as the case may be,
for which each share of any other class of Common Stock is exchanged or
converted (and with regard to the Class B Common Stock after giving effect to
the Class B Conversion Rate); provided, that if shares of Common
Stock are exchanged for shares of capital stock or other type of security, such
securities so received in such exchange may differ to the extent and only to
the extent that the Class A Common Stock and the


 


9

















 


Class B Common
Stock differ as provided herein, or (b) if holders of each class of Common
Stock are to receive different distributions of stock, securities, cash or
other property (other than as contemplated by Article
5), an amount of stock, securities, cash or other property per share
having a value, as determined by an independent investment banking firm of
national reputation selected by the Board, equal to the value per share for
which each share of any other class of Common Stock is exchanged. Further, the
Management Company shall not enter into such consolidation, merger, combination
or other transaction, unless the acquiring Entity agrees to preserve all rights
of the holders of Membership Units set forth in the Operating Agreement


 


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


 


ARTICLE 6

BOARD OF DIRECTORS AND GOVERNANCE


 


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


 


6.1.1                     Number of
Directors. The Board shall consist of the number of directors as the
Board may determine from time to time, subject to Article 6.1.2 below. If the number of directors is changed,
any increase or decrease shall be apportioned among the classes of Common Stock
consistent with proportions set forth in this Article
6.1.


 


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


 


(a)                                  For
so long as there are any shares of Class B Common Stock outstanding, the number
of Class B Directors shall consist of the number of Class B Directors as a
majority of the Class B Directors may determine from time to time; provided
that for so long as (i) SKT owns any shares of Class B Common Stock, it may
elect as many Class B Directors as it so chooses, (ii) any other holder of
Class B Common Stock owns at least twenty percent (20%) of the Total
Outstanding Shares, two (2) Class B Directors will be elected by such holders, and
(iii) any other holder of Class B Common Stock owns at least ten percent (10%)
but less than twenty percent (20%) of the Total Outstanding Shares, one (1)
Class B Director will be elected by such holder; and


 


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


 


10

















 


6.1.3                     Class A
Directors. For so long as there are any shares of Class B Common Stock
outstanding, upon a Public Offering, the holders of Class A Common Stock will be
entitled to elect up to three (3) independent Class A Directors as provided
hereinafter. If the percentage of Class A Common Stock held by holders, in the
aggregate, other than a holder of Class B Common Stock (or its Affiliates) is
(a) greater than or equal to ten percent (10%) of the Total Outstanding Shares,
but less than or equal to twenty percent (20%) of the Total Outstanding Shares,
then the size of the Board shall be increased to include one (1) Class A
Director; (b) greater than twenty percent (20%) of the Total Outstanding
Shares, but less than or equal to thirty-three percent (33%) of the Total
Outstanding Shares, then the size of the Board shall be increased to include
two (2) Class A Directors; and (c) greater than thirty-three percent (33%) of
the Total Outstanding Shares, then the size of the Board shall be increased to
include three (3) Class A Directors. Such Class A Directors must qualify as
independent pursuant to the Securities Exchange Act of 1934, as amended, the
rules of any exchange upon which the Common Stock is traded and any other rules
or regulations promulgated by the Securities and Exchange Commission.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


11

















 


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


 


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


 


6.5                               Quorum.
Quorum for any meeting of the Board shall require the presence of a majority of
the directors.


 


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


 


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


 


ARTICLE 7

DISSOLUTION


 


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


 


7.2                               Winding
Up. In the event of the dissolution of the Management Company for any
reason, the CEO, under the direction of the Board, shall proceed promptly to
wind up the affairs and liquidate the assets of the Management Company. The
Board shall have complete


 


12

















 


discretion to
determine the time, manner and terms of any sale of the Management Company
property pursuant to such liquidation.


 


7.3                               Liquidation
Rights. In the event of any dissolution, liquidation or winding-up of
the affairs of the Management Company, whether voluntary or involuntary, after
payment or provision for payment of the debts and other liabilities of the
Management Company and after making provision for the holders of each series of
Preferred Stock, if any, and according to the terms of Preferred Stock, the
remaining assets and funds of the Management Company, if any, shall be divided
among and paid ratably to the holders of the shares of the Common Stock or on
an as-converted basis. For the purposes hereof, the voluntary sale, conveyance,
exchange or transfer (for cash, shares of stock, securities or other
consideration) of all or substantially all the property or assets of the
Management Company shall be deemed a voluntary liquidation, dissolution or
winding-up of the Management Company, but a consolidation or merger of the
Management Company with one or more other corporations shall not be deemed to
be a, voluntary or involuntary, liquidation, dissolution or winding-up of the
Management Company.


 


ARTICLE 8

OFFICER AND DIRECTOR LIABILITY


 


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


 


ARTICLE 9

SECTION 203 ELECTION


 


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


 


ARTICLE 10

DEFINITIONS


 


The following
are the definitions used in this Certificate:


 


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


 


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


 


“Business”
shall mean the operation of businesses engaged in the development and marketing
of branded wireless telecommunications services, including, without limitation,
handsets, voice services, data services (including CDMA laptop cards and
related software), stand-alone and other wireless services in the United
States; provided, however, that the


 


13

















 


Business shall not include any business or activity that the Management
Company is restricted from pursuing or engaging in pursuant to the Operating
Agreement.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


14

















 


“Management
Company” shall mean HELIO, Inc., a Delaware
corporation.


 


“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 the Operating Agreement.


 


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


 


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


 


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


 


“New
Securities” has the meaning set forth in Article 5.11.


 


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


 


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


 


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


 


“Person”
shall mean any natural person or Entity.


 


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


 


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


 


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


 


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


 


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


 


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


 


15

















 


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


 


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


 


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


 


“Stockholders”
shall mean the stockholders of the Management Company.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“Type B
Triggering Event” shall have the meaning set forth in Article 5.13.


 


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


 


16

















 


[Signatures on following page]


 


17

















 


IN WITNESS
WHEREOF, HELIO, Inc. has caused this Certificate,
which has been duly adopted by the Board and consented to in writing and
authorized by the holders of all of the issued and outstanding shares entitled
to vote thereon and duly adopted in accordance with Sections 242 and 245 of the
General Corporation Law of the State of Delaware, to be signed and attested as
of the        day of                  ,
2007.


 


	
   

  	
  HELIO,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Sky D. Dayton, Chief Executive Officer