THE
OPERATING COMPANY IS A LIMITED LIABILITY COMPANY FORMED UNDER THE LAWS OF THE
STATE OF DELAWARE, THE NAME OF THE PERSON TO WHICH IT IS ISSUED AND THE NUMBER
OF MEMBERSHIP UNITS WHICH SUCH CERTIFICATE REPRESENTS.
SUCH CERTIFICATES SHALL
BE ENTERED IN THE BOOKS OF THE OPERATING COMPANY AS THEY ARE ISSUED, AND SHALL
BE SIGNED BY THE CEO OF THE OPERATING COMPANY.
UPON ANY TRANSFER OF MEMBERSHIP
UNITS PERMITTED UNDER THIS AGREEMENT (OTHER THAN A PLEDGE PERMITTED UNDER
SECTION 4.1.2, THE TRANSFERRING MEMBER SHALL REQUEST THE OPERATING COMPANY TO
(I) ISSUE TO THE TRANSFEREE A CERTIFICATE REPRESENTING THE NUMBER OF MEMBERSHIP
UNITS SO TRANSFERRED AND (II) SURRENDER TO THE OPERATING COMPANY THE EXISTING
CERTIFICATE AND THE OPERATING COMPANY SHALL ISSUE TO THE TRANSFERRING MEMBER
CERTIFICATES REPRESENTING THE REMAINING MEMBERSHIP UNITS, IF ANY, HELD BY SUCH
TRANSFERRING MEMBER AFTER TAKING INTO ACCOUNT SUCH TRANSFER.
ALL CERTIFICATES
REPRESENTING MEMBERSHIP UNITS (UNLESS REGISTERED UNDER THE SECURITIES ACT),
SHALL BEAR THE FOLLOWING LEGEND:
THE LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY SECURITIES REGULATORY AUTHORITY OF ANY STATE, AND MAY NOT BE
OFFERED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED, EXCEPT
IN A TRANSACTION WHICH IS REGISTERED UNDER, EXEMPT FROM, OR OTHERWISE IN
COMPLIANCE WITH THE FEDERAL AND STATE SECURITIES LAWS, AS TO WHICH THE COMPANY
HAS RECEIVED SUCH ASSURANCES AS THE COMPANY MAY REQUEST, WHICH MAY INCLUDE, A
SATISFACTORY OPINION OF COUNSEL.
ANY SALE, ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THE LIMITED
LIABILITY COMPANY INTERESTS REPRESENTED BY THIS CERTIFICATE IS RESTRICTED BY,
AND SUBJECT TO, THE TERMS AND PROVISIONS OF A STOCKHOLDERS' AGREEMENT BETWEEN
SK-EARTHLINK MANAGEMENT CORP. AND
32
THE STOCKHOLDERS SET FORTH THEREIN AND A LIMITED LIABILITY COMPANY AGREEMENT
BETWEEN SK-EARTHLINK LLC AND THE MEMBERS NAMED THEREIN, EACH DATED THE [
DAY OF
, 2005].
A COPY OF THE STOCKHOLDERS' AGREEMENT AND THE
LIMITED LIABILITY COMPANY AGREEMENT IS ON FILE WITH THE SECRETARY OF THE
COMPANY.
BY ACCEPTANCE OF THIS CERTIFICATE, THE HOLDER HEREOF AGREES TO BECOME
BOUND BY THE STOCKHOLDERS' AGREEMENT AND LIMITED LIABILITY COMPANY AGREEMENT.
16.3.
SECURITY.
EACH MEMBERSHIP INTEREST SHALL CONSTITUTE A
"SECURITY" WITHIN THE MEANING OF (A) ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE
(INCLUDING SECTION 8-L02(A)(15) THEREOF) AS IN EFFECT FROM TIME TO TIME IN THE
STATES OF DELAWARE AND NEW YORK AND (B) THE UNIFORM COMMERCIAL CODE OF ANY OTHER
APPLICABLE JURISDICTION THAT NOW OR HEREAFTER SUBSTANTIALLY INCLUDES THE 1994
REVISIONS TO ARTICLE 8 THEREOF AS ADOPTED BY THE AMERICAN LAW INSTITUTE AND THE
NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS AND APPROVED BY THE
AMERICAN BAR ASSOCIATION ON FEBRUARY 14, 1995.
16.4.
LOST OR DESTROYED CERTIFICATES.
THE OPERATING COMPANY
MAY ISSUE A NEW CERTIFICATE FOR MEMBERSHIP UNITS IN PLACE OF ANY CERTIFICATE OR
CERTIFICATES THERETOFORE ISSUED BY IT, ALLEGED TO HAVE BEEN LOST OR DESTROYED,
UPON THE MAKING OF AN AFFIDAVIT OF THAT FACT, AND PROVIDING AN INDEMNITY IN FORM
AND SUBJECT REASONABLY