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 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.
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.
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.
[Signature page to follow]
40
IN WITNESS WHEREOF, the Initial Members have executed this Agreement as of the
date first above written.
EARTHLINK, INC.
By:
Name:
Title:
SK TELECOM INTERNATIONAL, INC.
By:
Name:
Title:
SK-EARTHLINK MANAGEMENT CORP.
By:
Name:
Title:
41
Schedule 9.1.1
Member
Percentage
Interest
Initial Capital
Contributions
Non-Cash
Contributions
Membership
Units
SKTI
49.9999998
%
$
220,000,000.00
$
0
50,000,000
Net
EarthLink
49.9999998
%
$
180,000,000.00
$
40,000,000.00
50,000,000
Management Company
0.0000004
%
$
[
]
$
0
2
TOTAL
100.00
%
100,000,002