added, documentary, stamp or similar Taxes that may be imposed in
connection with the transfers contemplated by this Agreement, together with all
interest, penalties and additions imposed with respect to such amounts and any
interest in respect of such penalties and additions.
1.2
Other Terms. Other terms may be defined elsewhere in this Agreement
and, unless otherwise indicated, shall have such meaning throughout this
Agreement.
ARTICLE II
CONTRIBUTIONS
2.1A
SKT NOTE PURCHASE.
ON THE TERMS AND SUBJECT TO THE CONDITIONS SET FORTH HEREIN, AS SOON AS
PRACTICABLE FOLLOWING THE DATE HEREOF BUT NO LATER THAN NOVEMBER 12, 2007 (THE
"NOTE PURCHASE DATE"), SKT HOLDINGS SHALL PURCHASE A $40,000,000 SECURED
PROMISSORY NOTE (THE "ADDITIONAL NOTE") FROM THE OPERATING COMPANY IN
SUBSTANTIALLY THE FORM ATTACHED HERETO AS EXHIBIT E. SUCH PURCHASE OF THE
ADDITIONAL NOTE IS HEREIN COLLECTIVELY REFERRED TO AS THE "SKT NOTE PURCHASE".
2.1
MANAGEMENT COMPANY AND OPERATING COMPANY.
2.1.1
ORGANIZATIONAL DOCUMENTS. PRIOR TO THE CLOSING, MANAGEMENT COMPANY
SHALL FILE A SECOND AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF
MANAGEMENT COMPANY SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT D (THE
"CERTIFICATE OF INCORPORATION") WITH THE SECRETARY OF STATE OF THE STATE OF
DELAWARE. AT THE NOTE PURCHASE DATE, EARTHLINK, MANAGEMENT COMPANY AND OPERATING
COMPANY SHALL EACH EXECUTE ALL ANCILLARY DOCUMENTS TO WHICH IT IS A PARTY AND
DEPOSIT SUCH EXECUTED ANCILLARY DOCUMENTS IN ESCROW WITH THE DOCUMENT ESCROW
AGENT TO BE HELD UNTIL RELEASED AS FOLLOWS: (I) THE EXECUTED ANCILLARY DOCUMENTS
SHALL BE AUTOMATICALLY RELEASED TO SKT HOLDINGS UPON THE SATISFACTION OR WAIVER
OF THE CONDITIONS CONTAINED IN SECTION 5.2 AND SECTION 5.3, OR (II) THE EXECUTED
ANCILLARY
5
DOCUMENTS SHALL BE AUTOMATICALLY RELEASED AND RETURNED TO THE EARTHLINK,
OPERATING COMPANY AND MANAGEMENT COMPANY, AS APPLICABLE, UPON A TERMINATION OF
THIS AGREEMENT PURSUANT TO SECTION 6.1.
2.1.2
MEMBERSHIP UNITS. AT THE CLOSING, IN EXCHANGE FOR THE SKT HOLDINGS
CONTRIBUTION (AS DESCRIBED IN SECTION 2.2 BELOW), THE OPERATING COMPANY SHALL
ISSUE TO SKT HOLDINGS 23,333,333 PREFERRED MEMBERSHIP UNITS PLUS SUCH NUMBER OF
PREFERRED MEMBERSHIP UNITS THAT WILL BECOME ISSUABLE TO SKT HOLDINGS FOR THE
ACCRUED AND UNPAID INTEREST IN RESPECT OF THE NOTE AND THE ADDITIONAL NOTE AS AT
THE CLOSING DATE IN ACCORDANCE WITH THE TERMS AND CONDITIONS THEREOF (THE
"ADDITIONAL MEMBERSHIP UNITS").
2.2
SKT Holdings Contributions. On the terms and subject to the
conditions set forth herein, at the Closing, SKT Holdings shall exchange each of
(i) the Additional Note and (ii) the $30,000,000 Secured Promissory Note from
the Operating Company to SKT Holdings, dated September 21, 2007 (the "Note")
and, in each case, the accrued and unpaid interest thereon as at the Closing
Date for Preferred Membership Units of the Operating Company. Such exchange of
the Note and the Additional Note are herein collectively referred to as the "SKT
Holdings Contribution".
2.3
CLOSING.
2.3.1
TIME AND LOCATION OF CLOSING. THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY (THE "CLOSING") SHALL TAKE PLACE AT 600 PEACHTREE STREET,
ATLANTA, GEORGIA, AS PROMPTLY AS IS PRACTICABLE ON THE FIRST BUSINESS