AND HAS TAKEN ALL CORPORATE OR LIMITED
LIABILITY COMPANY ACTION NECESSARY IN ORDER TO EXECUTE AND DELIVER THIS
STOCKHOLDERS' AGREEMENT AND TO PERFORM FULLY ITS OBLIGATIONS HEREUNDER.
2.2.
ENCUMBRANCES.
SUCH STOCKHOLDER OWNS ONE (1) ISSUED AND OUTSTANDING
SHARE OF CLASS B COMMON STOCK FREE AND CLEAR OF ALL LIENS AND ENCUMBRANCES,
EXCEPT FOR THIS STOCKHOLDERS' AGREEMENT AND THE OPERATING AGREEMENT.
THERE ARE
NO OPTIONS, WARRANTS OR OTHER RIGHTS, AGREEMENTS, ARRANGEMENTS OR COMMITMENTS OF
ANY CHARACTER TO WHICH SUCH STOCKHOLDER IS A PARTY RELATING TO THE PLEDGE,
DISPOSITION OR VOTING OF ANY SHARES AND THERE ARE NO VOTING TRUSTS OR VOTING
AGREEMENTS WITH RESPECT TO SUCH SHARES.
2.3.
BINDING AGREEMENT.
THIS STOCKHOLDERS' AGREEMENT HAS BEEN DULY
EXECUTED AND DELIVERED AND IS A VALID AND BINDING AGREEMENT OF SUCH STOCKHOLDER
ENFORCEABLE AGAINST IT IN ACCORDANCE WITH ITS TERMS, SUBJECT TO BANKRUPTCY,
INSOLVENCY, FRAUDULENT TRANSFER, REORGANIZATION, MORATORIUM AND SIMILAR LAWS OF
GENERAL APPLICABILITY RELATING TO OR AFFECTING CREDITOR'S RIGHTS AND TO GENERAL
EQUITY PRINCIPLES.
2.4.
NOTICES, REPORTS AND FILINGS.
NO NOTICES, REPORTS OR OTHER FILINGS
ARE REQUIRED TO BE MADE BY SUCH STOCKHOLDER WITH, NOR ARE ANY CONSENTS,
REGISTRATIONS, APPROVALS, PERMITS OR AUTHORIZATIONS REQUIRED TO BE OBTAINED BY
IT OR THE MANAGEMENT COMPANY FROM, ANY GOVERNMENTAL ENTITY, IN CONNECTION WITH
THE EXECUTION AND DELIVERY OF THIS STOCKHOLDERS' AGREEMENT, EXCEPT THOSE THAT
HAVE BEEN MADE OR OBTAINED OR THAT THE FAILURE TO MAKE OR OBTAIN ARE NOT,
INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY LIKELY TO RESULT IN A MATERIAL
ADVERSE EFFECT ON THE OPERATING COMPANY.
7
2.5.
NON-CONTRAVENTION.
THE EXECUTION, DELIVERY AND PERFORMANCE OF THIS
STOCKHOLDERS' AGREEMENT BY SUCH STOCKHOLDER DOES NOT, AND THE CONSUMMATION BY IT
OF THE TRANSACTIONS CONTEMPLATED HEREBY WILL NOT, CONSTITUTE OR RESULT IN (A) A
BREACH OR VIOLATION OF, OR A DEFAULT UNDER, ITS ORGANIZATIONAL DOCUMENTS, (A) A
BREACH OF OR VIOLATION OF OR DEFAULT UNDER, OR THE ACCELERATION OF ANY
OBLIGATIONS OF OR THE CREATION OF A LIEN OR ENCUMBRANCE ON ITS ASSETS (WITH OR
WITHOUT NOTICE, LAPSE OF TIME OR BOTH) PURSUANT TO ANY CONTRACTS BINDING UPON IT
OR ANY LAW, STATUTE OR REGULATION OR GOVERNMENTAL OR NON-GOVERNMENTAL PERMIT OR
LICENSE TO WHICH IT IS SUBJECT OR (C) ANY CHANGE IN THE RIGHTS OR OBLIGATIONS OF
ANY PARTY UNDER ANY OF SUCH CONTRACTS TO WHICH IT IS A PARTY, EXCEPT, IN THE
CASE OF CLAUSE (B) OR (C) ABOVE, FOR ANY BREACH, VIOLATION, DEFAULT,
ACCELERATION, CREATION OR CHANGE THAT INDIVIDUALLY OR IN THE AGGREGATE, IS NOT
REASONABLY LIKELY TO (X) RESULT IN A MATERIAL ADVERSE EFFECT ON THE OPERATING
COMPANY.
ARTICLE 3
VOTING
3.1.
VOTING AGREEMENTS.
EACH STOCKHOLDER AGREES TO VOTE OR CAUSE THE
VOTING OF, WHETHER IN PERSON, BY PROXY OR WRITTEN CONSENT, ALL SHARES, DIRECTLY
OR INDIRECTLY, BENEFICIALLY OWNED BY IT SO AS TO CAUSE THE EVENTS SET FORTH IN
THIS SECTION 3.1 TO OCCUR.
3.1.1
ELECTION OF CLASS B DIRECTORS.
THE ELECTION OF CLASS B DIRECTORS
NOMINATED BY SKT AND BY EARTHLINK, FOR SO LONG AS EACH IS ENTITLED TO HAVE ITS
NOMINEES