the form set forth in Exhibit G.
"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
6
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.
"Taxes" shall mean all federal, state, local and foreign income, profits,
franchise, gross receipts, environmental, customs duty, capital stock,
severance, stamp, payroll, sales, employment, unemployment, disability, use,
property, withholding, excise, production, value added, occupancy and other
taxes, duties or assessments of any nature whatsoever, together with all
interest, penalties and additions imposed with respect to such amounts and any
interest in respect of such penalties and additions.
"Termination Date" shall have the meaning set forth in Section 6.1.
"Transfer Taxes" shall mean all federal, state, local or foreign sales, use,
value added, documentary, stamp or similar Taxes that may be imposed in
connection with the transfers contemplated by this Agreement, together with all
interest, penalties and additions imposed with respect to such amounts and any
interest in respect of such penalties and additions.
1.2
OTHER TERMS.
OTHER TERMS MAY BE DEFINED
ELSEWHERE IN THIS AGREEMENT AND, UNLESS OTHERWISE INDICATED, SHALL HAVE SUCH
MEANING THROUGHOUT THIS AGREEMENT.
1.3
OTHER DEFINITIONAL PROVISIONS.
THE WORDS
"HEREOF," "HEREIN," AND "HEREUNDER" AND WORDS OF SIMILAR IMPORT, WHEN USED IN
THIS AGREEMENT, SHALL REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY
PARTICULAR PROVISION OF THIS AGREEMENT.
(A)
THE TERMS DEFINED IN THE SINGULAR SHALL
HAVE A COMPARABLE MEANING WHEN USED IN THE PLURAL, AND VICE VERSA.
(B)
THE TERMS "DOLLARS" AND "$" SHALL MEAN
UNITED STATES DOLLARS.
(C)
REFERENCES HEREIN TO A SPECIFIC SECTION,
SUBSECTION OR SCHEDULE SHALL REFER, RESPECTIVELY, TO SECTIONS, SUBSECTIONS OR
SCHEDULES OF THIS AGREEMENT, UNLESS THE EXPRESS CONTEXT OTHERWISE REQUIRES.
(D)
THE WORDS "INCLUDE," "INCLUDES," AND
"INCLUDING" WHEN USED IN THIS AGREEMENT, SHALL BE DEEMED TO BE FOLLOWED BY THE
WORDS "WITHOUT LIMITATION."
(E)
ANY REFERENCE HEREIN TO ANY LAW, RULE,
REGULATION, ORDER OR OTHER ACT OF A GOVERNMENTAL ENTITY, OR TO ANY ANCILLARY
AGREEMENT BETWEEN THE PARTIES HERETO OR THEIR SUBSIDIARIES, SHALL BE DEEMED TO
INCLUDE A REFERENCE TO ANY SUCH LAW, RULE, REGULATION, ORDER OR OTHER ACT OR ANY
SUCH AGREEMENT, IN EACH CASE AS IT MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO
TIME, AND ANY REFERENCE TO A FORM UNDER THE SECURITIES ACT OF 1933, AS AMENDED,
OR THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED, SHALL INCLUDE ANY
SUCCESSOR FORMS THERETO.
7
ARTICLE II
FORMATION AND CONTRIBUTIONS
2.1
Formation of Operating Company and Management
Company.
2.1.1
FORMATION OF MANAGEMENT COMPANY.
PRIOR TO CLOSING SKT AND EARTHLINK SHALL FILE A CERTIFICATE OF INCORPORATION OF
MANAGEMENT COMPANY SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT H (THE
"CERTIFICATE OF INCORPORATION") WITH THE SECRETARY