SECTION 17.2 TO SATISFY THE REQUIREMENT OF
THIS ARTICLE 5 AS WELL AS FOR ANY OTHER BREACH OF THIS AGREEMENT.
ARTICLE 6
MANAGEMENT OF THE OPERATING COMPANY
6.1.
MANAGEMENT OF THE OPERATING COMPANY.
THE MANAGEMENT OF THE
OPERATING COMPANY SHALL BE VESTED EXCLUSIVELY IN THE MANAGEMENT COMPANY.
THE
MANAGEMENT COMPANY ACKNOWLEDGES THAT ITS POWERS ARE SUBJECT TO THE TERMS OF THE
MANAGEMENT COMPANY CERTIFICATE AND AGREES AT ALL TIMES TO ABIDE BY THE TERMS AND
CONDITIONS SET FORTH THEREIN.
ALL STRATEGIC DECISIONS AND DEADLOCK MATTERS
(EACH AS DEFINED IN ARTICLE 8 OF THE STOCKHOLDERS' AGREEMENT) SHALL BE MADE AND
RESOLVED AS PROVIDED IN THE STOCKHOLDERS' AGREEMENT.
THE MANAGEMENT COMPANY
SHALL SERVE UNTIL THE MEMBERS SHALL DETERMINE BY A UNANIMOUS VOTE OF THE
MEMBERSHIP UNITS, EXCLUDING MEMBERSHIP UNITS HELD BY THE MANAGEMENT COMPANY, TO
REMOVE THE MANAGEMENT COMPANY.
AT SUCH TIME, THE MEMBERS SHALL ELECT A NEW
MANAGEMENT COMPANY BY A UNANIMOUS VOTE OF THE MEMBERSHIP UNITS, EXCLUDING
MEMBERSHIP UNITS HELD BY THE MANAGEMENT COMPANY.
IF THE MANAGEMENT COMPANY IS
THE SOLE MEMBER OF THE OPERATING COMPANY, THEN THE MANAGEMENT COMPANY SHALL BE
ENTITLED TO ELECT ANY SUCCESSOR TO MANAGE THE OPERATING COMPANY.
THE MANAGEMENT
COMPANY SHALL HAVE THE POWER ON BEHALF AND IN THE NAME OF THE OPERATING COMPANY
TO CARRY OUT ANY AND ALL OF THE OBJECTS AND PURPOSES OF THE OPERATING COMPANY
AND TO PERFORM OR AUTHORIZE ALL ACTS WHICH IT MAY DEEM NECESSARY OR ADVISABLE IN
CONNECTION THEREWITH.
THE MEMBERS AGREE THAT ALL DETERMINATIONS, DECISIONS AND
ACTIONS MADE OR TAKEN BY THE MANAGEMENT COMPANY IN ACCORDANCE WITH THIS
AGREEMENT AND THE MANAGEMENT COMPANY CERTIFICATE SHALL BE CONCLUSIVE AND
ABSOLUTELY BINDING UPON THE OPERATING COMPANY, THE MEMBERS AND THEIR RESPECTIVE
SUCCESSORS, ASSIGNS AND REPRESENTATIVES.
WITHOUT LIMITING THE FOREGOING, THE
MANAGEMENT COMPANY SHALL HAVE AND MAY DELEGATE TO ITS OFFICERS THE POWERS AND
RESPONSIBILITIES SET FORTH IN THIS SECTION 6.1.
6.1.1
BUSINESS PLAN.
THE POWER TO DEVELOP AND PREPARE THE BUSINESS PLAN
AND OPERATING BUDGET OF THE OPERATING COMPANY EACH YEAR FOR APPROVAL BY THE
MANAGEMENT COMPANY'S BOARD OF DIRECTORS, IN ACCORDANCE WITH THE MANAGEMENT
COMPANY CERTIFICATE.
17
6.1.2
EXECUTE DOCUMENTS.
THE POWER TO EXECUTE AND DELIVER CONTRACTS AND
OTHER DOCUMENTS IN THE ORDINARY COURSE OF THE OPERATING COMPANY'S BUSINESS.
6.1.3
RETAIN AND TERMINATE PERSONNEL.
THE POWER TO EMPLOY, RETAIN,
CONSULT WITH AND DISMISS PERSONNEL.
6.1.4
INTERNAL CONTROLS.
THE POWER TO ESTABLISH AND ENFORCE CORPORATE
GOVERNANCE AND FINANCIAL POLICIES INCLUDING, WITHOUT LIMITATION, LIMITS OF
AUTHORITY AND INTERNAL CONTROLS WITH RESPECT TO ALL PERSONNEL AND FUNCTIONS.
6.1.5
OUTSIDE ADVISORS.
THE POWER TO ENGAGE ATTORNEYS, CONSULTANTS,
ACCOUNTANTS AND OTHER AGENTS AND REPRESENTATIVES OF THE OPERATING COMPANY.
6.1.6
BOOKS AND RECORDS.
THE POWER TO DEVELOP OR CAUSE TO BE DEVELOPED
ACCOUNTING PROCEDURES FOR THE MAINTENANCE OF THE OPERATING COMPANY'S BOOKS OF
ACCOUNT AND THE SELECTION OF APPROPRIATE FINANCIAL SYSTEMS AND CONTROLS.
6.1.7
TAX ELECTIONS.
THE POWER TO MAKE ALL TAX ELECTIONS IN A MANNER
WHICH, UNLESS SKT HOLDINGS OR EARTHLINK DISAGREE, WILL MAXIMIZE OR ACCELERATE
TAX DEDUCTIONS OR MINIMIZE OR DEFER