APPROVED BY ALL CLASS B DIRECTORS AND A MAJORITY VOTE OF ALL DIRECTORS),
THEN ANY FURTHER TRANSACTIONS WITH AFFILIATES DURING SUCH YEAR SHALL BE DEEMED
STRATEGIC DECISIONS AND BE SUBJECT TO APPROVAL HEREIN;
(C)
ANY MODIFICATIONS OF SCHEDULES 8.1(A) OR
(B);
(D)
ANY ISSUANCE OF EQUITY OR MEMBERSHIP
INTEREST SENIOR TO THE CLASS B COMMON STOCK OR THE MEMBERSHIP UNITS, INCLUDING
ANY PREFERRED STOCK OR PREFERRED MEMBERSHIP UNITS;
(E)
ANY BANKRUPTCY MATTER; AND
(F)
EXCEPT IN CONNECTION WITH AN M&A
TRANSACTION, ANY EVENT WHICH RESULTS IN THE PRIMARY INVESTMENT VEHICLE OF THE
JOINT VENTURE (REPRESENTED BY THE OPERATING COMPANY AND THE MANAGEMENT COMPANY)
BECOMING A CORPORATION AS OPPOSED TO A LIMITED LIABILITY COMPANY, WHETHER SUCH
OCCURS BY MEANS OF A CONVERSION OF THE OPERATING COMPANY FROM A LIMITED
LIABILITY COMPANY TO A
CORPORATION, A MERGER OF THE OPERATING COMPANY INTO THE MANAGEMENT COMPANY OR
OTHERWISE.
Schedule 8.1(b)
The following matters, which list shall not be an exclusive list of matters
requiring the approval of the Board of Directors, shall be approved as provided
in Article 8 of this Stockholders' Agreement by (i) a majority of Class B
Directors, and (ii) a majority vote of all directors:
(A)
INDEBTEDNESS (FOR MONEY BORROWED AND LEASE
OBLIGATIONS) IN EXCESS OF $5 MILLION, OUTSIDE OF ORDINARY COURSE TRADE DEBT;
(B)
DECLARATION AND PAYMENT OF DIVIDENDS OR
DISTRIBUTIONS;
(C)
DISTRIBUTION OF ANY OTHER WIMAX CONVERGENT
DEVICES, BETWEEN PC AND HANDSET DEVICES;
(D)
ANY M&A TRANSACTION;
(E)
APPROVAL OF ANNUAL BUSINESS PLAN AND
OPERATING BUDGET;
(F)
CHANGE IN SCOPE OF BUSINESS;
(G)
HIRING/FIRING (AND TERMS OF EMPLOYMENT) OF
EXECUTIVE OFFICERS;
(H)
DELEGATION AND CREATION OF ANY COMMITTEES OF
THE BOARD;
(I)
ACQUISITION OR DISPOSITION OF ASSETS
(INCLUDING, WITHOUT LIMITATION, SUBSIDIARIES, EQUITY, DEBT AND OTHER
INVESTMENTS, ETC.) IN EXCESS OF $5 MILLION;
(J)
NEW TECHNOLOGY PURCHASES/INVESTMENTS IN
EXCESS OF $5 MILLION;
(K)
ENTERING INTO ANY MATERIAL AGREEMENT IN
EXCESS OF $5 MILLION;
(L)
ADDITIONAL CAPITAL CONTRIBUTIONS;
(M)
SELECTION OF INDEPENDENT AUDITORS FOR
FINANCIAL PURPOSES;
(N)
CREATION AND MANAGEMENT OF SIGNIFICANT
CORPORATE GOVERNANCE AND FINANCIAL POLICIES;
(O)
LOCATION OF CASH AND INVESTMENT HOLDINGS;
(P)
CHANGE IN THE NAME OF THE MANAGEMENT COMPANY
OR THE OPERATING COMPANY OR SIGNIFICANT BRANDING;
(Q)
SELECTION AND/OR RELOCATION OF HEADQUARTERS;
(R)
ESTABLISHMENT/CHANGE IN REGULATORY OR
PUBLIC POLICY POSITIONS;
(S)
NEW PRODUCTS OR SERVICES OUTSIDE OF THE
BUSINESS PLAN;
(T)
ADOPTION OR CHANGE TO ANY MATERIAL
EMPLOYEE POLICIES INCLUDING THE ADOPTION OF AN EQUITY COMPENSATION PLAN;
(U)
NON-COMPETITION OR NON-SOLICITATION
AGREEMENTS BINDING THE OPERATING COMPANY;
(V)
MERGER, CONSOLIDATION OR REORGANIZATION THAT
IS NOT AN M&A TRANSACTION OR BANKRUPTCY MATTER; AND
(W)
THE SUPPORT, PUBLIC OR IN CONFIDENCE, OF ANY
LAW, RULE OR REGULATION THAT MAY LIKELY HAVE A SIGNIFICANT IMPACT ON THE PRIMARY
BUSINESS OF EITHER EARTHLINK OR SKT.
Notwithstanding the foregoing, if the annual aggregate amount to be expended by
the Operating Company for marketing, inventory, business development or capital
expenditures is delineated within the Annual Budget approved by a majority of
Class B Directors, and a majority vote of