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.
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
OWNS 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
15
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 SUBSIDIARIES 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 WRITTEN CONSENT.
IF THE OPERATING COMPANY DECLINES TO
ACQUIRE OR ADOPT THE ASP ITEM(S), THE PROVIDER MAY PROVIDE THE ASP ITEM(S) TO
THE THIRD PARTY; AND (B) PROVIDE THE OPERATING COMPANY WITH A REASONABLY
DETAILED SERVICE DEPLOYMENT PLAN WITH RESPECT TO THE ASP ITEM(S).
THE FOREGOING
SHALL NOT APPLY TO CONTRACTS BETWEEN A PROVIDER AND ANY THIRD PARTY ENTERED INTO
PRIOR TO NOVEMBER 1, 2004.
UNDER NO CIRCUMSTANCES SHALL SKT PROPOSE TO OFFER
ASP ITEMS TO THIRD PARTIES WITHIN OR FOR USE