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.
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. 600,
Los Angeles, CA 90024
Attention:
Chief Executive Officer
9
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 SKT HOLDINGS, EARTHLINK AND THE MANAGEMENT
COMPANY.
AS OF THE DATE HEREOF, EACH OF SKT HOLDINGS, EARTHLINK AND THE
MANAGEMENT COMPANY, 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