HANDSET DEVICES THAT CONTAIN THE HARDWARE AND SOFTWARE COMPONENTS
NECESSARY TO PERMIT WIMAX ACCESS ("WIMAX ENABLED DEVICES") AND RELATED HANDSET
ONLY WIMAX ACCESS SERVICES, BUT, FOR SO LONG AS EARTHLINK OR A SUBSIDIARY OF
EARTHLINK OWNS A SHARE OF CLASS B COMMON STOCK, MAY NOT SELL PC-BASED WIMAX
SERVICES OTHER THAN THOSE OF EARTHLINK.
THE OPERATING COMPANY AND ITS
SUBSIDIARIES MAY DISTRIBUTE WIMAX ENABLED DEVICES TO THIRD PARTIES WHO BUNDLE
AND RESELL THE WIMAX ENABLED DEVICES WITH THE WIMAX HANDSET ONLY ACCESS SERVICES
OF SUCH THIRD PARTY.
THE OPERATING COMPANY MAY ONLY OFFER EARTHLINK'S PC-BASED
WIMAX DEVICES AND SERVICES, WHICH EARTHLINK SHALL MAKE AVAILABLE TO THE
OPERATING COMPANY ON PRICES, TERMS AND CONDITIONS THAT ARE AT LEAST AS
FAVORABLE, FROM A FINANCIAL PERSPECTIVE, TO THE OPERATING COMPANY AS THE PRICES,
TERMS AND CONDITIONS OF SUBSTANTIALLY SIMILAR PRODUCTS AND SERVICES PROVIDED BY
EARTHLINK TO A THIRD PARTY NOT AFFILIATED WITH EARTHLINK.
DISTRIBUTION OF ANY
OTHER WIMAX CONVERGENT DEVICES, BETWEEN PC AND HANDSET DEVICES, MUST BE APPROVED
BY THE BOARD OF DIRECTORS.
15
5.4.
CDMA LAPTOP CARDS.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO
THE CONTRARY, WITH RESPECT TO CDMA LAPTOP CARDS (AND RELATED SOFTWARE), THE
OPERATING COMPANY MAY DISTRIBUTE "EARTHLINK WIRELESS" BRANDED CDMA LAPTOP CARDS
AND "EARTHLINK TOTAL ACCESS" ACCESS SOFTWARE, WHICH SHALL BE THE EXCLUSIVE CARD
AND SOFTWARE DISTRIBUTED BY THE OPERATING COMPANY, DURING THE PERIOD (THE
"EXCLUSIVITY PERIOD") THAT BEGINS ON THE DATE HEREOF AND ENDS ON THE EARLIER TO
OCCUR OF (I) THE DATE ON WHICH EARTHLINK OR A SUBSIDIARY OF EARTHLINK CEASES TO
OWN A SHARE OF CLASS B COMMON STOCK OR (II) THE SECOND ANNIVERSARY OF THE DATE
HEREOF.
FOLLOWING THE EXPIRATION OF THE EXCLUSIVITY PERIOD, THE OPERATING
COMPANY AND ITS SUBSIDIARIES SHALL BE PERMITTED TO MARKET AND DISTRIBUTE ANY
CDMA LAPTOP CARDS AND RELATED SOFTWARE.
5.5.
ASP.
FOR SO LONG AS EARTHLINK OR A SUBSIDIARY OF EARTHLINK OWNS A
SHARE OF CLASS B COMMON STOCK, EACH MEMBER AND EACH SUBSIDIARY OF A MEMBER THAT
ACTS AS AN ASP IN THE UNITED STATES (EACH, A "PROVIDER") AND PROPOSES TO OFFER
ASP SOLUTIONS, APPLICATIONS AND PLATFORMS (INCLUDING A LICENSE OR PROFESSIONAL
SERVICE WITH RESPECT THERETO, BUT EXCLUDING COLORING SERVICE, (EACH, AN "ASP
ITEM" AND COLLECTIVELY, THE "ASP ITEMS") TO ANY THIRD PARTY WITHIN OR FOR USE
WITHIN THE UNITED STATES, SHALL GIVE THE OPERATING COMPANY WRITTEN NOTICE SIX
(6) MONTHS PRIOR TO THE PROPOSED OFFER.
DURING THE SIX (6) MONTH NOTICE PERIOD,
THE OPERATING COMPANY SHALL HAVE THE OPTION TO PURCHASE OR ADOPT THE OFFERED ASP
ITEM OR ITEMS FROM THE PROVIDER (FOR PURPOSES OF INTERNAL USE OR RESALE TO THIRD
PARTIES) ON TERMS NO LESS FAVORABLE THAN THOSE OFFERED BY THE PROVIDER TO THE
THIRD PARTY.
IF THE OPERATING COMPANY PURCHASES OR ADOPTS THE OFFERED ASP
ITEMS(S) FROM THE PROVIDER WITHIN THE OPTION PERIOD, THEN PROVIDER SHALL: (A) BE
PROHIBITED FROM OFFERING OR SELLING THE ASP ITEM(S) TO ANY THIRD PARTY IN THE
UNITED STATES OR FOR USE IN THE UNITED STATES WITHOUT THE OPERATING COMPANY'S