**Exhibit10.1**

 

EARTHLINK, INC.

 

CHANGE-IN-CONTROL ACCELERATED VESTING

AND SEVERANCE PLAN

 

THIS EARTHLINK, INC. CHANGE-IN-CONTROL ACCELERATEDVESTING AND SEVERANCE PLAN (this “Plan”) was adopted originally as of the 19thday of April, 2001 by EarthLink, Inc., a Delaware corporation (“Employer”),and its Affiliates (as defined below) for the benefit of the eligible employeesdescribed herein and amended effective as of October 19, 2005 and amendedand restated effective as of February 17, 2006 and as of May 8, 2008.

 

WITNESSETH:

 

WHEREAS, the Employees (as defined below) arecurrently employed by Employer or an Affiliate (as defined below); and

 

WHEREAS, Employer and its Affiliates desire toestablish the Plan to provide certain security to the Employees in connectionwith their employment with the Employer or an Affiliate in the event of aChange in Control of the Employer (as defined below).

 

NOW, THEREFORE, Employer and its Affiliates herebyestablish the Plan as set forth below.

 

1.             Definitions.

#  

For purposes of this Plan:

 

## (a)           “Affiliate”means any entity with whom the Employer would be considered a single employerunder Code Sections 414(b) or 414(c).

##  

## (b)           “BeneficialOwnership” means beneficial ownership as that term is used in Rule 13d-3promulgated under the Exchange Act.

##  

## (c)           “Beneficiary”shall mean the person or entity an Employee designates, by written instrumentdelivered to the Employer or an Affiliate, to receive the benefits payableunder this Plan after the Employee’s death. If an Employee fails to designate a Beneficiary, or if no designatedBeneficiary survives the Employee, such benefits shall be paid:

##  

### (1)           toEmployee’s surviving spouse; or

###  

### (2)           ifthere is no surviving spouse, to Employee’s living descendants per stirpes; or

###  

### (3)           ifthere is neither a surviving spouse nor living descendants, to Employee’sestate.

###  

## (d)           “BenefitCategory” shall mean one of the following benefit categories:  (1) the Gold Benefit Category, (2) theSilver Benefit Category or (3) the Bronze Benefit Category.  For purposes of this Plan, the Gold BenefitCategory shall include the Chief Executive Officer and 

 

----

 

## President of the Employer; the Silver Benefit Category shall includethe Chief Financial Officer of the Employer and any other officer of theEmployer or any Affiliate whose position is designated by the Employer throughits Board of Directors as an executive officer and included within the SilverBenefit Category; and the Bronze Benefit Category shall include the VicePresidents Classified Jobs of the Employer or any Affiliate.  Notwithstanding the foregoing, the ChiefExecutive Officer, President and Chief Financial Officer of any Affiliate shallbe included in the Silver Benefit Category provided the position was includedin the Silver Benefit Category prior to May 8, 2008 and Director Band Jobsof the Employer or any Affiliate shall be included in the Bronze BenefitCategory provided the position was in the Blue Zone Band and included in theBronze Benefit Category prior to May 8, 2008, provided in either case onlywith respect to an Employee who received prior to May 8, 2008 a notice ofeligibility to participate in the Plan. If the Employer designates additional Qualifying Positions, then theEmployer also shall specify into which Benefit Category that QualifyingPosition will be included.  The Employee’sBenefit Category shall be determined based on the Employee’s QualifyingPosition at the time of the Change in Control of the Employer, and any Employeein more than one Qualifying Position shall be deemed for purposes of this Planto be in only the Qualifying Position that would entitle such Employee to thegreatest benefits under this Plan.

##  

## (e)           “BenefitsSeverance Period” shall mean (1) for an Employee in the Gold BenefitCategory, the one and one-half years, (2) for an Employee in the SilverBenefit Category, the one and one-half years, and (3) for an Employee inthe Bronze Benefit Category, the one year, beginning in each case on theEmployee’s Termination of Employment.

##  

## (f)            “BonusTarget” shall mean the annual incentive bonus payable to the Employee atthe greater of the rate in effect on (1) the date the Change in Control ofthe Employer occurs or (2) the date of the Employee’s Termination ofEmployment under the circumstances described in Section 2(a).

##  

## (g)           “BusinessCombination” means a reorganization, merger or consolidation of theEmployer.

##  

## (h)           “CashSeverance” shall mean a lump-sum cash payment equal to (1) for anEmployee in the Gold Benefit Category, one hundred and fifty percent (150%) ofthe sum of the Employee’s Salary and Bonus Target, (2) for an Employee inthe Silver Benefit Category, one hundred and fifty percent (150%) of the sum ofthe Employee’s Salary and Bonus Target, and (3) for an Employee in theBronze Benefit Category, one hundred percent (100%) of the sum of the Employee’sSalary and Bonus Target.

##  

## (i)            “Cause”shall exist where the Employee’s Termination of Employment is by the Employeror an Affiliate upon (1) the Employee’s willful and continued failure tosubstantially perform his or her employment duties (other than any failure OnAccount of a Disability), after a written notice is delivered to the Employeeby an executive officer of the Employer or Affiliate which employs Employee orthe person in charge of the Human Resources function of such Employer orAffiliate (or if the Employee is the Chief Executive Officer or President ofthe Employer, the Chairman of the Compensation Committee of the Board ofDirectors of the Employer) that specifically identifies the manner in which suchexecutive officer or person in charge of the Human Resources function (or suchChairman) believes that the Employee has failed to substantially perform his orher employment duties and after a reasonable opportunity is 

 

2

----

 

## afforded to the Employee to cure his or her performance failure(s), or (2) theEmployee willfully engaging in misconduct that is materially injurious to theEmployer or an Affiliate, monetarily or otherwise.  For purposes of this definition, no act, orfailure to act, on the Employee’s part will be considered “willful” unlessdone, or omitted to be done, by the Employee not in good faith and withoutreasonable belief that his or her act or omission was in the best interest ofthe Employer or an Affiliate. Notwithstanding the above, the Employee will not be deemed to have had aTermination of Employment for Cause unless and until he or she has been given acopy of the notice of termination from an executive officer or person in chargeof the Human Resources function (or in case of the Chief Executive Officer orPresident of the Employer, the Chairman of the Compensation Committee of theBoard of Directors), after reasonable notice to the Employee and an opportunityfor him or her, together with his or her counsel, to be heard before (1) theChief Executive Officer of the Employer, or (2) if the Employee is anofficer of the Employer or an Affiliate who has been elected or appointed bythe Board of Directors of the Employer or Affiliate, as the case may be, tosuch office, the Board of Directors of the Employer or Affiliate, or (3) inall cases not involving an elected officer and where the Chief ExecutiveOfficer of the Employer otherwise directs or delegates this responsibility, theexecutive officer or person in charge of the Human Resources function or adirect report to such Chief Executive Officer to whom such responsibility wasdelegated, finding that in the good faith opinion of the Chief ExecutiveOfficer, or, in the case of an elected officer, finding that in the good faithopinion of two-thirds of the applicable Board of Directors, or, in all othercases, finding that in the good faith opinion of the applicable executiveofficer or person in charge of the Human Resources function or a direct reportto the Chief Executive Officer to whom such responsibility was delegated, thatthe Employee committed the conduct set forth above in clauses (1) or (2) ofthis definition and specifying the particulars of that finding in detail.

##  

## (j)            “Changein Control” of the Employer means the occurrence of any of the followingevents:

##  

### (1)           Theaccumulation in any number of related or unrelated transactions by any Personof Beneficial Ownership of more than fifty percent (50%) of the combined votingpower of the Employer’s Voting Stock; provided that for purposes of thissubparagraph (1), a Change in Control will not be deemed to have occurred ifthe accumulation of more than fifty percent (50%) of the voting power of theEmployer’s Voting Stock results from any acquisition of Voting Stock (a) directlyfrom the Employer that is approved by the Incumbent Board, (b) by theEmployer, (c) by any employee benefit plan (or related trust) sponsored ormaintained by the Employer or any Subsidiary, or (d) by any Personpursuant to a Business Combination that complies with clauses (a) and (b) ofsubparagraph (2) below; or

###  

### (2)           Consummationof a Business Combination, unless, immediately following that BusinessCombination, (a) all or substantially all of the Persons who were thebeneficial owners of Voting Stock of the Employer immediately prior to thatBusiness Combination beneficially own, directly or indirectly, at least fiftypercent (50%) of the then outstanding shares of common stock and at least fiftypercent (50%) of the combined voting power of the then outstanding VotingStock entitled to vote generally in the election of directors of the entityresulting from that Business Combination (including, without limitation, anentity that as a result of that transaction owns the Employer or all orsubstantially all of the Employer’s assets either directly or through one ormore subsidiaries) in substantially the same proportions relative to each otheras their ownership, immediately prior to that Business Combination, of theVoting 

 

3

----

 

### Stock of the Employer, and (b) at least sixty percent (60%) of themembers of the Board of Directors of the entity resulting from that BusinessCombination holding at least sixty percent (60%) of the voting power of suchBoard of Directors were members of the Incumbent Board at the time of theexecution of the initial agreement or of the action of the Board of Directorsproviding for that Business Combination and as a result of or in connectionwith such Business Combination, no Person has a right to dilute either of suchpercentages by appointing additional members to the Board of Directors orotherwise without election or other action by the stockholders; or

###  

### (3)           Asale or other disposition of all or substantially all of the assets of theEmployer, except pursuant to a Business Combination that complies with clauses (a) and(b) of subparagraph (2); or

###  

### (4)           Approvalby the shareholders of the Employer of a complete liquidation or dissolution ofthe Employer, except pursuant to a Business Combination that complies withclauses (a) and (b) of subparagraph 2; or

###  

### (5)           Theacquisition by any Person of the right to Control the Employer.

###  

## (k)           “Code”means the Internal Revenue Code of 1986, amended, and any successor thereto.

##  

## (l)            “Control”means the possession, direct or indirect, of the power to direct or cause thedirection of the management and policies of the Employer (a) through theownership of securities which provide the holder with such power excludingvoting rights attendant with such securities or (b) by contract.

##  

## (m)          “Employee”shall mean a full-time common-law employee of Employer or an Affiliate who isemployed by the Employer or an Affiliate and selected to participate in thePlan and who holds a Qualifying Position in the Employer or an Affiliate at alltimes from initial participation in the Plan through the Change in Control ofthe Employer.  All full-time common-lawemployees of the Employer or an Affiliate who were employed by the Employer oran Affiliate and who held a Qualifying Position in the Employer or an Affiliateimmediately prior to May 8, 2008, and have been continuously employedsince that time, participate in the Plan as of such May 8, 2008 date,subject to compliance with the other terms and conditions of the Plan.  All full-time common-law employees of theEmployer or an Affiliate who were employed by the Employer or an Affiliate andwho held a Qualifying Position in the Employer or an Affiliate beginning on andafter May 8, 2008 (and are not described in the preceding sentence) shallparticipate in the Plan as of the date the Employer selects such individual forparticipation, subject to compliance with the other terms and conditions of thePlan.  A full-time common law employeeonly includes an individual who renders personal services to the Employer or anAffiliate and who, in accordance with the established payroll accounting andpersonnel policies of the Employer or an Affiliate, is characterized by theEmployer or an Affiliate as a full-time common law employee.  Notwithstanding the foregoing, independentcontractors are not employees for purposes of this Plan.  Moreover, notwithstanding the foregoing, anEmployee does not include a person whom the Employer or an Affiliate hasidentified on its payroll, personnel or tax records as an independentcontractor or a person who has acknowledged in writing to the Employer or anAffiliate that such person is an independent contractor whether or 

 

4

----

 

## not a court, the Internal Revenue Service or any other entityultimately determines such classification to be correct as a matter oflaw.  Exhibit A attachedhereto shall contain the names of each Employee and his or her Qualifying Positionand Benefit Category.  The Employer shallupdate Exhibit A as necessary to always reflect the Employeesparticipating in the Plan. Notwithstanding any other provision of this Plan, an individual who iscovered under and participates in the EarthLink, Inc. Accelerated Vestingand Compensation Continuation Plan shall not become an Employee and participatein this Plan unless and until he or she waives and releases any and all rightsto benefits and coverage he or she has under the EarthLink, Inc. AcceleratedVesting and Compensation Continuation Plan.

##  

## (n)           “ExchangeAct” means the Securities Exchange Act of 1934, including amendments, orsuccessor statutes of similar intent.

##  

## (o)           “ForGood Reason” means the Employee’s Termination of Employment is by theEmployee other than on death or On Account of Disability and based on:

##  

### (1)           Withrespect to an Employee in either the Gold or Silver Benefit Category, theassignment to the Employee of duties inconsistent with his or her position andstatus with the Employer or Affiliate as they existed immediately prior to aChange in Control of the Employer, or a substantial change in his or her title,offices or authority, or in the nature of his or her other responsibilities, asthey existed immediately prior to a Change in Control of the Employer, exceptin connection with the Employee’s Termination of Employment for Cause or OnAccount of Disability or as a result of his or her death or by the Employeeother than For Good Reason; or

###  

### (2)           Withrespect to an Employee in the Bronze Benefit Category, the assignment to theEmployee of duties requiring skills and experience that are inconsistent withthe skills and experience required for his or her duties with the Employerimmediately prior to a Change in Control of the Employer, except in connectionwith the Employee’s Termination of Employment for Cause or On Account ofDisability or as a result of his or her death or by Employee other than forGood Reason; or

###  

### (3)           Areduction by the Employer or an Affiliate in the Employee’s base salary as ineffect on the date of this Plan or as his or her salary may be increased fromtime to time, without Employee’s written consent; or

###  

### (4)           Areduction by the Employer or an Affiliate in the target cash bonus payable tothe Employee under any incentive compensation plan(s), as it (or they) may bemodified from time to time, in effect immediately prior to a Change in Controlof the Employer, or a failure by the Employer or an Affiliate to continue theEmployee as a participant in the incentive compensation plan(s) on atleast the basis of the Employee’s participation immediately prior to a Changein Control of the Employer or to pay the Employee the amounts that he or shewould be entitled to receive in accordance with such plan(s); or

###  

### (5)           TheEmployer or an Affiliate requiring the Employee to be based more thanthirty-five (35) miles from the location where he or she is based immediatelyprior to a Change in Control of the Employer, except for travel on the Employer’sor Affiliate’s business that is required or necessary to performance of his orher job and substantially consistent with his or her business travelobligations prior to the Change in Control of the Employer, or if the 

 

5

----

 

### Employee consents to that relocation, the failure by the Employer or anAffiliate to pay (or reimburse the Employee for) all reasonable moving expensesincurred by the Employee or to indemnify the Employee against any loss realizedin the sale of his or her principal residence in connection with thatrelocation; or

###  

### (6)           Thefailure by the Employer or an Affiliate to continue in effect any materialretirement or compensation plan, performance share plan, stock option plan,life insurance plan, health and accident plan, disability plan or anotherbenefit plan in which the Employee is participating immediately prior to aChange in Control of the Employer (or provide plans providing him or her withsubstantially similar benefits), the taking of any action by the Employer or anAffiliate that would adversely affect the Employee’s participation ormaterially reduce his or her benefits under any of those plans or deprive himor her of any material fringe benefit enjoyed by the Employee immediately priorto a Change in Control of the Employer, or the failure by the Employer or anAffiliate to provide the Employee with the number of paid vacation days towhich he or she is then entitled in accordance with normal vacation practicesin effect immediately prior to a Change in Control of the Employer; or

###  

### (7)           Thefailure by the Employer or an Affiliate to obtain the assumption of theagreement to perform this Plan by any successor; or

###  

### (8)           Anypurported Termination of Employment that is not effected pursuant to a noticeof termination satisfying the requirements of a Termination of Employment for “Cause.”

###  

## (p)           “IncumbentBoard” means a Board of Directors at least a majority of whom consist ofindividuals who either are (a) members of the Employer’s Board ofDirectors as of April 19, 2001 or (b) members who become members ofthe Employer’s Board of Directors subsequent to such date whose election, ornomination for election by the Employer’s shareholders, was approved by a voteof at least sixty percent (60%) of the directors then comprising the IncumbentBoard (either by a specific vote or by approval of the proxy statement of theEmployer in which that person is named as a nominee for director, withoutobjection to that nomination), but excluding, for that purpose, any individualwhose initial assumption of office occurs as a result of an actual orthreatened election contest (within the meaning of Rule 14a-11 of theExchange Act) with respect to the election or removal of directors or otheractual or threatened solicitation of proxies or consents by or on behalf of aPerson other than the Board of Directors.

##  

## (q)           “OnAccount of Disability” shall exist where the Employee’s Termination ofEmployment results from the Employee being “Disabled” as a result of a “Disability”in accordance with the policies of the Employer or Affiliate that employed theEmployee in effect at the time of the Change in Control of the Employer.

##  

## (r)            “Person”means any individual, entity or group within the meaning of Section 13(D)(3) or14(d)(2) of the Exchange Act.

##  

## (s)           “QualifyingPosition” shall mean any one of the following:  (1) the Chief Executive Officer orPresident of the Employer; (2) the Chief Financial Officer of the Employerand any other officer of the Employer or any Affiliate who is designated by theEmployer through its Board of Directors as an executive officer and being in aQualifying Position; (3) the 

 

6

----

 

## Vice Presidents Classified Jobs of the Employer or any Affiliate; (4) DirectorBand Jobs of the Employer or any Affiliate that were banded in the Blue ZoneBand and the Chief Executive Officer, President and Chief Financial Officer ofany Affiliate, provided in either case only with respect to an Employee in aQualifying Position prior to May 8, 2008 and who received a prior noticeof eligibility to participate in the Plan, and (5) any other position orjob classification that the Employer hereafter designates as being a QualifyingPosition.

##  

## (t)            “RetirementPlan” shall mean any qualified or supplemental employee pension benefitplan, as defined in Section 3(2) of the Employee Retirement Income Security Actof 1974, as amended (“ERISA”), currently made available by Employer or anAffiliate in which Employee participates.

##  

## (u)           “Salary”shall mean the Employee’s base salary at the greater of the rate in effect on (1) thedate the Change in Control of the Employer occurs or (2) the date of theEmployee’s Termination of Employment under circumstances described in Section 2(a).

##  

## (v)           “SpecifiedEmployee” means an employee (as that term is used in Code Section 416)who is (i) an officer of the Employer having annual compensation greaterthan $135,000 (with certain adjustments for inflation after 2005), (ii) afive-percent owner of the Employer or (iii) a one-percent owner of theEmployer having annual compensation greater than $150,000.  For purposes of this Section, no more than 50employees (or, if lesser, the greater of three or 10 percent of the employees)shall be treated as officers.  Employeeswho (i) normally work less than 17 1/2 hours per week, (ii) normallywork not more than 6 months during any year, (iii) have not attained age21 or (iv) are included in a unit of employees covered by an agreementwhich the Secretary of Labor finds to be a collective bargaining agreementbetween employee representatives and the Employer (except as otherwise providedin regulations issued under the Code) shall be excluded for purposes ofdetermining the number of officers.  Forpurposes of this Section, the term “five-percent owner”  (“one-percent owner”) means any person whoowns more than five percent (one percent) of the outstanding stock of theEmployer or stock possessing more than five percent (one percent) of the totalcombined voting power of all stock of the Employer.  For purposes of determining ownership, theattribution rules of Section 318 of the Code shall be applied bysubstituting “five percent” for “50 percent” in Section 318(a)(2) andthe rules of Sections 414(b), 414(c) and 414(m) of the Code shallnot apply.  For purposes of this Section,the term “compensation” has the meaning given such term by Section 414(q)(4) ofthe Code.  The determination of whetherthe Employee is a Specified Employee will be based on a December 31identification date such that if the Employee satisfies the above definition ofSpecified Employee at any time during the 12-month period ending on December 31,he will be treated as a Specified Employee if he has a Termination ofEmployment during the 12-month period beginning on the first day of the fourthmonth following the identification date. This definition is intended to comply with the specified employee rules ofSection 409A(a)(2)(B)(i) of the Code and shall be interpretedaccordingly.

##  

## (w)          “Terminationof Employment” means the termination of the Employee’s employment with theEmployer and all Affiliates; provided, however, that the Employee will not beconsidered as having had a Termination of Employment if (i) the Employeecontinues to provide services to the Employer or any Affiliate as an employee(as that term is used in Code Section 409A) at an annual rate that is atleast equal to 20 percent of the services rendered, on average, during theimmediately preceding three full calendar years of employment (or, if 

 

7

----

 

## employed less than three years, such lesser period) and the annualremuneration for such services is at least equal to 20 percent of the averageannual remuneration earned during the final three full calendar years ofemployment (or if less, such lesser period), (ii) the Employee continuesto provide services to the Employer or any Affiliate in a capacity other thanas an employee (as that term is used in Code Section 409A) and suchservices are provided at an annual rate that is 50 percent or more of theservices rendered, on average, during the immediately preceding three fullcalendar years of employment (or, if employed less than three years, suchlesser period) and the annual remuneration for such services is 50 percent ormore of the annual remuneration earned during the final three full calendaryears of employment (or, if less, such lesser period) or (iii) theEmployee is on military leave, sick leave or other bona fide leave of absence(such as temporary employment by the government) so long as the period of suchleave does not exceed six months, or if longer, so long as the individual’sright to reemployment with the Employer or any Affiliate is provided either bystatute or by contract.  If the period ofleave (i) ends or (ii) exceeds six months and the Employee’s right toreemployment is not provided either by statute or by contract, the Employee’sTermination of Employment will be deemed to occur on the first date immediatelyfollowing such time if not reemployed by the Employer or any Affiliate beforesuch time and eligibility for payments and benefits hereunder will bedetermined as of that time.  For purposesof this Section, annual rate of providing services shall be determined basedupon the measurement used to determine the Employee’s base compensation.

##  

## (x)            “VotingStock” means the then outstanding securities of an entity entitled to votegenerally in the election of members of that entity’s Board of Directors.

##  

## (y)           “WelfarePlan” shall mean any health and dental plan, disability plan, survivorincome plan, life insurance plan or similar plan, as defined in Section 3(1) ofERISA, currently made available by the Employer or an Affiliate in which anEmployee participates.

##  

2.             Benefits UponTermination of Employment.

#  

## (a)           Thefollowing provisions will apply if and only if, at any time within eighteen(18) months after a Change in Control of the Employer occurs, (i) theEmployee has a Termination of Employment by the Employer or an Affiliate forany reason other than Cause, On Account of Disability or death, or (ii) theEmployee voluntarily has a Termination of Employment for Good Reason:

##  

### (1)           Employeror an Affiliate shall pay Employee Cash Severance in one lump sum payment,subject to all applicable withholdings and employment taxes and subject toreductions pursuant to Sections 4 and 16 of this Plan, as soon as practicalafter the Employee’s Termination of Employment.

###  

### (2)           TheEmployer or an Affiliate shall pay any and all amounts with respect to COBRAcontinuation coverage that the Employee elects under any Welfare Plan of theEmployer or an Affiliate for him or her or his or her spouse or dependentsthrough the Benefits Severance Period, including all attendant administrativefees and expenses, however described or denominated.  All such payments shall be made in suchmanner as to allow Employee to pay his or her COBRA coverage on a timely basis;provided that the Company will make all such payments as soon as practical andno later than the 15th day of the third month of the calendar yearfollowing the calendar year of the Employee’s Termination of Employment.

 

8

----

 

### (3)           TheEmployee or his Beneficiary, or any other person entitled to receive benefitswith respect to the Employee under any Retirement Plan, Welfare Plan, or otherplan or program maintained by Employer or any Affiliate in which Employeeparticipates at the date of the Employee’s Termination of Employment, shallreceive any and all benefits accrued under any such Retirement Plan, WelfarePlan or other plan or program to the date of the Employee’s Termination ofEmployment, the amount, form and time of payment of such benefits to bedetermined by the terms of such Retirement Plan, Welfare Plan, or other plan orprogram.

###  

### (4)           Notwithstandingany other provision of this Plan, however, if the Employee is a SpecifiedEmployee, and if the benefits and payments under this Plan are not otherwiseexempt from Code Section 409A, then to the extent necessary to comply withSection 409A no payments may be made hereunder (including, if necessary,any COBRA payments or reimbursements) before the date which is six months afterthe Specified Employee’s Termination of Employment within the meaning of Section 409Aor, if earlier, the date of death of the Specified Employee.  Because the amounts paid pursuant to thisPlan should be paid by the 15th day of the third month following theend of the calendar year in which Employees have a termination of employment,all amounts should be exempt from Section 409A.  These Specified Employee six-month delayprovisions will only be applicable if it is subsequently determined that theamounts paid pursuant to this Plan are not exempt from Section 409A.

###  

## (b)           Ifthe Employee has a Termination of Employment by the Employer or an Affiliate orby the Employee other than under the circumstances set forth in Section 2(a),including without limitation on the death or On Account of Disability of theEmployee, by the Employer or an Affiliate for Cause or by the Employee otherthan for Good Reason, then the Employee’s compensation shall be paid throughthe date of his or her Termination of Employment, and the Employer and itsAffiliates shall have no further obligation with respect to the Employee underthis Plan.  Such Termination ofEmployment shall have no effect upon an Employee’s other rights, including butnot limited to rights under any Retirement Plan, Welfare Plan or other plan orprogram in which Employee participates, the amount, form and time of payment ofsuch benefits to be determined by the terms of such Retirement Plan, WelfarePlan, or other plan or program.

##  

## (c)           ThisSection 2 shall have no effect, and Employer shall have no obligationshereunder with respect to, an Employee who has a Termination of Employment forany reason at any time other than within eighteen (18) months after a Change inControl of the Employer occurs under the circumstances described in Section 2(a) above.

##  

## (d)           TheEmployer or an Affiliate that employs the Employee on his or her last day ofemployment will fund the payments to be made under the Plan to such Employeefrom its general assets.

##  

## (e)           Exhibit Battached hereto provides a summary of the benefits to which an Employee will beentitled based on the Benefit Category for which such Employee qualifies.  In the event of any conflict between suchsummary and the terms of Section 2 of the Plan, the provisions of Section 2of the Plan shall govern.

 

9

----

 

3.                                       AcceleratedVesting of Options and Restricted Stock Units.

 

(a)                                  (i)                                     Inthe event no provision is made for the continuance, assumption or substitutionby the Employer or its successor in connection with a Change in Control of theEmployer of outstanding stock options the Employer or an Affiliate grantedbefore the Change in Control of the Employer, then contemporaneously with theChange in Control of the Employer, all outstanding stock options that theEmployer or any Affiliate previously granted to an Employee in either the Goldor Silver Benefit Category shall be exercisable in full, if not then alreadyfully exercisable, in accordance with the terms of such options and theapplicable plans pursuant to which they were granted, notwithstanding any provisionsin the stock options or plans to the contrary regarding the exercisability ofsuch options.  If provision is made forthe continuance, assumption or substitution by the Employer or its successor inconnection with the Change in Control of the Employer of outstanding stockoptions the Employer or an Affiliate granted before the Change in Control ofthe Employer, then on the Employee’s Termination of Employment on or after aChange in Control of the Employer occurs, all outstanding stock options thatthe Employer or any Affiliate previously granted to an Employee in either theGold or Silver Benefit Category shall be exercisable in full, if not thenalready fully exercisable, in accordance with the terms of such options and theapplicable plans pursuant to which they were granted, notwithstanding anyprovisions in the stock options or plans to the contrary regarding theexercisability of such stock options.

 

## (ii)                                  Inthe event no provision is made for the continuance, assumption or substitutionby the Employer or its successor in connection with a Change in Control of theEmployer of outstanding stock options the Employer or an Affiliate grantedbefore the Change in Control of the Employer, then contemporaneously with theChange in Control of the Employer, all outstanding stock options that theEmployer or any Affiliate previously granted to an Employee in the BronzeBenefit Category shall be exercisable, in accordance with the terms of suchoptions and the applicable plans pursuant to which they were granted,notwithstanding any provisions in the stock options or plans to the contraryregarding the exercisability (and only exercisability) of such options, on atleast the basis they would have been exercisable had Employee remained employedwith the Employer or any Affiliate for twenty-four (24) months after the Changein Control of the Employer occurs, if not then already exercisable to suchextent.  If provision is made for thecontinuance, assumption or substitution by the Employer or its successor inconnection with the Change in Control of the Employer of outstanding stockoptions the Employer or an Affiliate granted before the Change in Control ofthe Employer, then on the Employee’s Termination of Employment on or after aChange in Control occurs, all outstanding stock options that the Employer orany Affiliate previously granted to an Employee in the Bronze Benefit Categoryshall be exercisable, in accordance with the terms of such options and theapplicable plans pursuant to which they were granted, notwithstanding anyprovisions in the stock options or plans to the contrary regarding theexercisability (and only exercisability) of such stock options, on at least thebasis they would have been exercisable had Employee remained employed with theEmployer or an Affiliate for twenty-four (24) months after the Change inControl of the Employer occurs, if not then already exercisable to such extent.

##  

## (iii)                               It is deemed under thisPlan that the Employer or an Affiliate consistent with the plans and agreementsgoverning the applicable stock options accelerated the exercisability of suchoutstanding stock options at such time and on such basis.  Notwithstanding any other provision of thisPlan, this Section 3 only impacts the exercisability and vesting of the 

 

10

----

 

## applicable stock option; it is not intended to nordoes it extend the terms or expiration dates of the applicable stock options.

##  

## (iv)                              Notwithstandingany of the foregoing, for purposes of this Section 3 only, an Employee inthe Bronze Benefit Category who previously participated in the EarthLink, Inc.Accelerated Vesting and Compensation Continuation Plan and who elected toparticipate in this Plan and waive any and all rights to benefits he or she hadunder the EarthLink, Inc. Accelerated Vesting and CompensationContinuation Plan shall be treated for purposes of this Section 3 as if heor she were in the Silver Benefit Category solely for purposes of theaccelerated vesting of stock options.  Exhibit Cattached hereto shall show the names of each employee who is included in theforegoing position and who is entitled to the treatment described in this Section 3(a)(iv) ifthey become an Employee under this Plan.

##  

## (v)                                 Exhibit Battached hereto provides a summary of the accelerated vesting to which anEmployee will be entitled based on the Benefit Category for which such Employeequalifies.  In the event of any conflictbetween such summary and the terms of Section 3 of the Plan, theprovisions of Section 3 of the Plan shall govern.

##  

## (b)                                 (i)                                     Inthe event no provision is made for the continuance, assumption or substitutionby the Employer or its successor in connection with a Change in Control of theEmployer of outstanding restricted stock units the Employer or an Affiliategranted before the Change in Control of the Employer, then contemporaneouslywith the Change in Control of the Employer, all outstanding restricted stockunits that the Employer or any Affiliate previously granted to an Employee ineither the Gold or Silver Benefit Category shall be earned and payable in full,if not then already fully earned and payable, in accordance with the terms ofsuch restricted stock units and the applicable plans pursuant to which theywere granted, notwithstanding any provisions in the restricted stock units orplans to the contrary regarding their becoming fully earned and payable;provided that a restricted stock unit that contains performance criteria shallnot become fully earned and payable if the date, if any, for attainment of theperformance criteria on which such restricted stock unit would have becomefully earned and payable has passed as of the date of the Change ofControl.  If provision is made for thecontinuance, assumption or substitution by the Employer or its successor inconnection with the Change in Control of the Employer of outstanding restrictedstock units the Employer or an Affiliate granted before the Change in Controlof the Employer, then on the Employee’s Termination of Employment on or after aChange in Control of the Employer occurs, all outstanding restricted stockunits that the Employer or any Affiliate previously granted to an Employee ineither the Gold or Silver Benefit Category shall be earned and payable in full,if not then already fully earned and payable, in accordance with the terms ofsuch restricted stock units and the applicable plans pursuant to which theywere granted, notwithstanding any provisions in the restricted stock units orplans to the contrary regarding their becoming fully earned and payable;provided that a restricted stock unit that contains performance criteria shallnot become fully earned and payable if the date, if any, for attainment of theperformance criteria on which such restricted stock unit would have becomefully earned and payable has passed as of the date of the Change of Control.

##  

## (ii)                                  Inthe event no provision is made for the continuance, assumption or substitutionby the Employer or its successor in connection with a Change in Control of theEmployer of outstanding restricted stock units the Employer or an Affiliategranted before the 

 

11

----

 

## Change in Control of the Employer, thencontemporaneously with the Change in Control of the Employer, all outstandingrestricted stock units that the Employer or any Affiliate previously granted toan Employee in the Bronze Benefit Category shall be earned and payable, inaccordance with the terms of such restricted stock units and the applicableplans pursuant to which they were granted, notwithstanding any provisions inthe restricted stock units or plans to the contrary regarding their becomingfully earned and payable on at least the basis they would have been earned andpayable had Employee remained employed with the Employer or any Affiliate fortwenty-four (24) months after the Change in Control of the Employer occurs, ifnot then already earned and payable to such extent; provided that a restrictedstock unit that contains performance criteria shall not become fully earned andpayable if the date, if any, for attainment of the performance criteria onwhich such restricted stock unit would have become fully earned and payable haspassed as of the date of the Change of Control or occurs more than twenty-four (24)months after the date of the Change in Control. If provision is made for the continuance, assumption or substitution bythe Employer or its successor in connection with the Change in Control of theEmployer of outstanding restricted stock units the Employer or an Affiliategranted before the Change in Control of the Employer, then on the Employee’sTermination of Employment on or after a Change in Control occurs, alloutstanding restricted stock units that the Employer or any Affiliatepreviously granted to an Employee in the Bronze Benefit Category shall beearned and payable, in accordance with the terms of such restricted stock unitsand the applicable plans pursuant to which they were granted, notwithstandingany provisions in the restricted stock units or plans to the contrary regardingtheir becoming earned and payable, on at least the basis they would have beenearned and payable had Employee remained employed with the Employer or anAffiliate for twenty-four (24) months after the Change in Control of theEmployer occurs, if not then already earned and payable to such extent;provided that a restricted stock unit that contains performance criteria shallnot become fully earned and payable if the date, if any, for attainment of theperformance criteria on which such restricted stock unit would have becomefully earned and payable has passed as of the date of the Change of Control oroccurs more than twenty-four (24) months after the date of the Change inControl.

##  

## (iii)                               It is deemed under thisPlan that the Employer or an Affiliate consistent with the plans and agreementsgoverning the applicable restricted stock units accelerated such restrictedstock units becoming earned and payable at such time and on such basis.  Notwithstanding any other provision of thisPlan, this Section 3 only impacts the vesting of the applicable restrictedstock units; it is not intended to nor does it extend the terms or expirationdates of the applicable restricted stock units.

##  

## (iv)                              Notwithstandingany of the foregoing, for purposes of this Section 3 only, an Employee inthe Bronze Benefit Category who previously participated in the EarthLink, Inc.Accelerated Vesting and Compensation Continuation Plan and who elected toparticipate in this Plan and waive any and all rights to benefits he or she hadunder the EarthLink, Inc. Accelerated Vesting and CompensationContinuation Plan shall be treated for purposes of this Section 3 as if heor she were in the Silver Benefit Category solely for purposes of theaccelerated vesting of restricted stock units. Exhibit C attached hereto shall show the names of eachemployee who is included in the foregoing position and who is entitled to thetreatment described in this Section 3(b)(iv) if they become anEmployee under this Plan.

##  

## (v)                                 Exhibit Battached hereto provides a summary of the accelerated vesting to which anEmployee will be entitled based on the Benefit Category for which such Employee

 

12

----

 

## qualifies.  Inthe event of any conflict between such summary and the terms of Section 3of the Plan, the provisions of Section 3 of the Plan shall govern.

##  

4.                                       Releaseand Setoff.

 

Notwithstanding any other provision of this Plan,payments shall be made under the Plan to any Employee or his Beneficiary onlyafter the Employee executes a release and waiver containing such terms andconditions as the Employer and its Affiliates may reasonably require, includingnon-solicitation, non-competition and confidentiality provisions.  Each Employee’s right to participate underthis Plan and to receive benefits hereunder is contingent upon the Employee’sagreement to this Section 4 and his or her continued compliance with anyagreements entered into hereunder.  TheEmployer and its Affiliates also may reduce and set-off any payments to or withrespect to an Employee pursuant to this Plan by any amount the Employee or hisBeneficiary may owe to Employer or any Affiliate.

 

5.                                       Death.

 

If an Employee has a Termination of Employment undercircumstances described in Section 2(a), then upon the Employee’ssubsequent death, all unpaid amounts payable to the Employee under Section 2(a)(1) or(2) shall be paid to his Beneficiary. Any death benefits owing under Section 2(a)(3) shall be paidas specified by the applicable Retirement Plan, Welfare Plan or other plan orprogram.

 

6.                                       Claimfor Benefits.

 

## (a)                                  Employeesdo not need to complete a claim for benefits to obtain benefits under thePlan.  However, Employees who dispute theamount of, or their entitlement to, Plan benefits must file a claim with theEmployer to obtain Plan benefits.  Anyclaim by an Employee who disputes the amount of, or his or her entitlement to,Plan benefits must be filed in writing within ninety (90) days of the eventthat the Employee is asserting constitutes an entitlement to such Planbenefits.  Failure by the Employee tosubmit such claim within the ninety (90)-day period shall bar the Employee fromany claim for benefits under the Plan as a result of the occurrence of suchevent.

##  

## (b)                                 Claimsfor benefits shall be filed in writing with the Employer.  Written notice of the decision on such claimshall be furnished to the claimant within ninety (90) days of receipt of suchclaim unless special circumstances require an extension of time for processingthe claim.  If the Employer needs anextension of time to process a claim, written notice will be delivered to theclaimant before the end of the initial ninety (90) day period.  The notice of extension will include astatement of the special circumstances requiring an extension of time and thedate by which the Employer expects to render its final decision.  However, that extension may not exceed ninety(90) days after the end of the initial period. If the Employer rejects a claim for failure to furnish necessarymaterial or information, the written notice to the claimant will explain whatmore is needed and why, and will tell the claimant that the claimant may refilea proper claim.

##  

## (c)                                  TheEmployer shall provide payment for the claim only if the Employer determines,in its sole discretion, that the claimant is entitled to the claimed benefit.

 

13

----

 

## (d)                                 Ifany part of a claim for benefits under this Plan is denied, the Employer willprovide the claimant with a written notice stating (i) the specific reasonor reasons for the denial; (ii) the specific reference to pertinent Planprovisions on which the denial was based; (iii) a description****of any additional material or informationnecessary for the claimant to perfect the claim and an explanation of why suchmaterial or information is necessary; and (iv) appropriate information asto the steps to be taken if the claimant wishes to submit a claim for review,including a statement of the claimant’s right to bring a civil action under Section502(a) of ERISA following an adverse benefit determination on review.

##  

## (e)                                  Thefull value of any payment made according to the Plan satisfies that much of theclaim and all related claims under the Plan.

##  

## (f)                                    Ifa claim is denied, the claimant may appeal the denial by delivering a writtennotice to the Employer specifying the reasons for the appeal.  That notice must be delivered within sixty(60) days after receiving the notice of denial. The claimant may submit written comments, documents, records and otherinformation relating to the claimant’s claim for benefits.  The claimant will be provided, upon requestand free of charge, reasonable access to, and copies of, all documents, recordsand other information relevant to the claimant’s claim for benefits.  The Employer’s review will take into accountall such written comments, documents, records and other information theclaimant submits relating to the claim, without regard to whether suchinformation was submitted or considered initially.

##  

## (g)                                 TheEmployer will advise the claimant in writing of the final determination afterreview.  The decision on review will bewritten in a manner calculated to be understood by the claimant, and it willinclude specific reasons for the decision and specific references to thepertinent provisions of the Plan or related documents on which the decision isbased.  Such written notification alsowill include a statement that the claimant is entitled to receive, upon requestand free of charge, reasonable access to, and copies of, all documents, recordsand other information relevant to the claimant’s claim for benefits, theclaimant’s right to obtain the information about such procedures and astatement of the claimant’s right to bring a civil action under Section 502(a) ofERISA following a denial on review.  Thewritten decision will be rendered within sixty (60) days after the request forreview is received, unless special circumstances require an extension of timefor processing.  If an extension isnecessary the Employer will furnish written notice of the extension to theclaimant before the end of the 60-day period and indicate the specialcircumstances requiring the extension of time. The extension notice will indicate the date by which the Employerexpects to render a decision.  Thedecision will then be rendered as soon as possible, but no later than onehundred twenty (120) days after receipt of the request for review.

##  

## (h)                                 Ifthe Employer holds regularly scheduled meetings at least quarterly, the timeperiods for rendering the written decision described in the preceding paragraphshall not apply and the Employer shall instead make a benefit determination nolater than the date of the meeting of the Employer that immediately follows thePlan’s receipt of a request for review, unless the request for review is filedwithin 30 days preceding the date of such meeting.  In such case, a benefit determination may bemade by no later than the date of the second meeting following the Plan’s receiptof the request for review.  If specialcircumstances require a further extension of time for processing, a benefitdetermination will be rendered no later than the third meeting of the Employerfollowing the Plan’s receipt of the request for review.  If such an extension of time 

 

14

----

 

## for review is required because of specialcircumstances, the Employer will provide the claimant with written notice ofthe extension, describing the special circumstances and the date as of whichthe benefit determination will be made, prior to the commencement of theextension.  The Employer will notify theclaimant of the benefit determination as soon as possible, but not later thanfive days after the benefit determination is made.

##  

## (i)                                     Inno event shall an Employee or other claimant be entitled to challenge adecision of the Employer in court or in any other administrative proceedingunless and until these claim review and appeal procedures have been compliedwith and exhausted. ** **The claimant shall have ninety (90)days from the date of receipt of the Employer’s decision on review in which tofile suit regarding a claim for benefits under the Plan.  If suit is not filed within such 90-dayperiod, it shall be forever barred.  Thedecisions made hereunder shall be final and binding on Employees and any otherparty.

##  

7.                                       Administrationof the Plan.

 

The Employer through its Board of Directors shallinterpret and administer the Plan.  TheEmployer shall establish rules for the administration of the Plan.  The Employer shall have the discretionaryauthority to construe the terms of the Plan and shall determine all questionsarising in its administration, interpretation and application, including thoseconcerning eligibility for benefits.  Alldeterminations of the Employer shall be final and binding on all Employees andBeneficiaries.  The Employer may appointa committee or an agent or other representative to act on its behalf and maydelegate to such committee or agent or representative any of its powershereunder.  Any action that suchcommittee or agent or representative takes shall be considered to be the actionof the Employer, when the committee or agent or representative is acting withinthe scope of the authority that the Employer delegated to it, and the Employershall be responsible for all such actions. If the Employer appoints a committee or other agent or representative toact on its behalf, the Employer will pay all the expenses relating to suchadministration, and, as permitted by law, the Employer will indemnify and saveeach committee member or agent or representative harmless against expenses,claims, and liabilities arising out of being such committee member or agent orrepresentative.  The Employer also mayemploy such accountants, counsel, specialists and other advisory clericalpersons as it deems necessary or desirable in connection with administration ofthe Plan.  The Employer is entitled torely conclusively on any opinions from its accountants or counsel.  The Employer will keep all books of account,records and other data necessary for proper administration of the Plan.

 

8.                                       EmployeeAssignment.

 

No interest of any Employee, his or her spouse or anyBeneficiary under this Plan, or any right to receive any payment ordistribution hereunder, shall be subject in any manner to sale, transfer,assignment, pledge, attachment, garnishment, or other alienation or encumbranceof any kind, nor may such interest or right to receive a payment ordistribution be taken, voluntarily or involuntarily, for the satisfaction ofthe obligations or debts of, or other claims against, the Employee or his orher spouse or Beneficiary, including claims for alimony, support, separatemaintenance, and claims in bankruptcy proceedings.

 

15

----

 

9.                                       BenefitsUnfunded.

 

All rights under this Plan of the Employees and theirspouses and Beneficiaries, shall at all times be entirely unfunded, and noprovision shall at any time be made with respect to segregating any assets ofEmployer or any Affiliate for payment of any amounts due hereunder.  The Employees, their spouses andBeneficiaries shall have only the rights, if any, of general unsecuredcreditors of Employer and its Affiliates.

 

10.                                 ApplicableLaw.

 

This Plan shall be construed and interpreted pursuantto the laws of the State of Delaware (other than its choice-of-law rules),except to the extent those laws are superceded by the laws of the United Statesof America.

 

11.                                 NoEmployment Contract.

 

Nothing contained in this Plan shall be construed tobe an employment contract between an Employee and the Employer or anAffiliate.  The creation, continuance orchange of this Plan or any payment hereunder does not give any person anon-statutory legal or equitable right against the Employer or an Affiliate toremain employed by the Employer or an Affiliate.  This Plan does not modify the terms of anyEmployee’s employment.

 

12.                                 Severability.

 

In the event any provision of this Plan is heldillegal or invalid, the remaining provisions of this Plan shall not be affectedthereby.

 

13.                                 Successors.

 

The Plan shall be binding upon and inure to thebenefit of Employer, its Affiliates, the Employees and their respective heirs,representatives and successors.

 

14.                                 Amendmentand Termination.

 

Notwithstanding any other provision of this Plan,Employer shall have the right (i) to declare that an individual whopreviously was selected to participate as an Employee in the Plan shall nolonger participate as an Employee in the Plan, (ii) to amend the Plan fromtime to time and (iii) to terminate the Plan at any time; provided that,within four (4) months before a Change in Control of the Employer occursor after a Change in Control of the Employer occurs, without the Employee’sconsent, (i) the Employer may not declare that an individual whopreviously was selected to participate as an Employee in the Plan no longerparticipates as an Employee in the Plan, (ii) no amendment may be madethat diminishes any Employee’s rights under the Plan and (iii) the Planmay not be terminated until all benefits that become payable under the Plan arepaid in full.  An amendment may be maderetroactively to the Plan if it is necessary to make this Plan conform toapplicable law.  Upon termination of thePlan, the Plan shall no longer be of any further force or effect, and neitherthe Employer, any Affiliate nor any Employee shall have any obligations orrights under this Plan.  Likewise, therights of any individual who was an Employee and whose designation as anEmployee is revoked or rescinded by the Employer shall cease upon such action.

 

16

----

 

15.                                 Notice.

 

Notices under this Plan shall be in writing and sentby registered mail, return receipt requested, to the following addresses or tosuch other address as the party being notified may have previously furnished tothe other party by written notice:

 

If to Employer:

 

EarthLink, Inc.

1375 Peachtree Street, N.W.

Suite 7 North

Atlanta, Georgia 30309-2935

Attention: Chief People Officer

 

If to an Employee:

 

The address last indicated on the records of Employer.

 

16.                                 ExciseTax.

 

Despite any other provisions of this Plan to thecontrary, if the receipt of any payments or benefits under this Plan wouldsubject an Employee to tax under Code Section 4999, the Employer maydetermine whether some amount of payments or benefits would meet the definitionof a “Reduced Amount.”  If the Employerdetermines that there is a Reduced Amount, the total payments or benefits tothe Employee hereunder must be reduced to such Reduced Amount, but not belowzero.  If the Employer determines thatthe benefits and payments must be reduced to the Reduced Amount, the Employermust promptly notify the Employee of that determination, with a copy of thedetailed calculations by the Employer. All determinations of the Employer under this Section are final,conclusive and binding upon the Employee. It is the intention of the Employer and the Employee to reduce thepayments under this Plan only if the aggregate Net After Tax Receipts to theEmployee would thereby be increased.  Asa result of the uncertainty in the application of Code Section 4999 at thetime of the initial determination by the Employer under this Section, however, itis possible that amounts will have been paid under the Plan to or for thebenefit of an Employee which should not have been so paid (“Overpayment”) orthat additional amounts which will not have been paid under the Plan to or forthe benefit of an Employee could have been so paid (“Underpayment”), in eachcase consistent with the calculation of the Reduced Amount.  If the Employer, based either upon theassertion of a deficiency by the Internal Revenue Service against the Employeror the Employee, which the Employer believes has a high probability of success,or controlling precedent or other substantial authority, determines that anOverpayment has been made, any such Overpayment must be treated for allpurposes as a loan which the Employee must repay to the Employer together withinterest at the applicable Federal rate under Code Section 7872(f)(2);provided, however, that no such loan may be deemed to have been made and noamount shall be payable by the Employee to the Employer if and to the extentsuch deemed loan and payment would not either reduce the amount on which theEmployee is subject to tax under Code Section 1, 3101 or 4999 or generatea refund of such taxes.  If the Employer,based upon controlling precedent or other substantial authority, determinesthat an Underpayment has occurred, the Employer must pay the amount of theUnderpayment to the Employee.  Forpurposes of this Section, (i) “Net 

 

17

----

 

After Tax Receipt” meansthe Present Value of a payment under this Plan net of all taxes imposed on theEmployee with respect thereto under Code Sections 1, 3101 and 4999, determinedby applying the highest marginal rate under Code Section 1 which appliesto the Employee’s taxable income for the applicable taxable year; (ii) “PresentValue” means the value determined in accordance with Code Section 280G(d)(4) and(iii) “Reduced Amount” means the largest aggregate amount of all paymentsand benefits under this Plan which (a) is less than the sum of all paymentsand benefits under this Plan and (b) results in aggregate Net After TaxReceipts which are equal to or greater than the Net After Tax Receipts whichwould result if the aggregate payments and benefits under this Plan were anyother amount less than the sum of all payments and benefits to be made underthis Plan.

 

17.                                 Miscellaneous.

 

## (a)                                  Thefailure of the Employer or an Affiliate to enforce any provisions of the Planshall in no way be construed to be a waiver of those provisions, nor in any wayeffect the validity of the Plan or any part thereof, or the right of theEmployer or an Affiliate thereafter to enforce such provision.

##  

## (b)                                 Thebenefits provided under this Plan are in addition to and not in lieu of anyother similar benefits that the Employer or any Affiliate may specify from timeto time in any employee handbook or in any other agreement between the Employeeand the Employer or an Affiliate. Additionally, the benefits that this Plan provides shall not be reducedor offset by any other payments or benefits that the Employee may receive fromany other third party or other employer after the Employee’s Termination ofEmployment.

##  

## (c)                                  Wheneverany benefits become payable under the Plan, the Employer and its Affiliatesshall have the right to withhold such amounts as are sufficient to satisfy anyapplicable federal, state or local withholding, tax, excise tax or similarrequirements.

##  

## (d)                                 Theterms of an Employee’s benefits are as set forth in this document, which cannotbe changed by the promises of any individual employee or manager.  Only the Employer may change the terms of thePlan, and then only through a written amendment.  No promises (oral or written) that are contraryto the terms of the Plan and its written amendments are binding upon the Planor the Employer.

##  

## (e)                                  Theterms and conditions of this Plan and the Employees’ benefits under the Planshall remain strictly confidential. Employees may not discuss or disclose any terms of this Plan or itsbenefits with anyone except their attorneys, accountants and immediate familymembers who shall be instructed to maintain the confidentiality agreed to underthis Plan, except as may be required by law.

##  

## (f)                                    Benefitsunder the Plan are not considered eligible earnings for the Employer’s 401(k) Plan,Stock-4-LESS (Employee Stock Purchase Plan) or any other benefit program.

##  

## (g)                                 ThisPlan is intended to comply with the applicable requirements of Section 409Aof the Code and shall be construed and interpreted in accordancetherewith.  The Employer may at any timeamend, suspend or terminate this Plan, or any payments to be made hereunder, asnecessary to be in compliance with Section 409A.  Notwithstanding the preceding, the Employerand all Affiliates shall not be liable to any Employee or any other person ifthe Internal Revenue 

 

18

----

 

## Service or any court or other authority havingjurisdiction over such matter determines for any reason that any amount underthis Plan is subject to taxes, penalties or interest as a result of failing tocomply with Code Section 409A.

##  

## (h)                                 ThisPlan is intended to be a “Welfare Plan” and not a “Pension Plan” as defined inERISA Sections 3(1) and 3(2), respectively.  Accordingly, the Plan must be interpreted andadministered in a manner that is consistent with that intent.

##  

IN WITNESS WHEREOF, Employer has caused thisinstrument to be executed in its name by its duly authorized officer, all as ofthe day and year first above written.

 
|   | EARTHLINK,  INC. |
|--------|------------------|
|   |             |
|   |             |
|   | By:              |   |
|   | Title:           |   |
|        |                  |  |  |

 

19

----

 

EARTHLINK, INC.

CHANGE-IN-CONTROL ACCELERATED VESTING ANDSEVERANCE PLAN

SUMMARY PLAN DESCRIPTION

 

NAME OF PLAN:

 

EarthLink, Inc. Change-in-Control AcceleratedVesting and Severance Plan

 

NAME, ADDRESS, ANDTELEPHONE NUMBER OF SPONSOR AND PLAN ADMINISTRATOR:

 

EarthLink, Inc. (“Employer”)

1375 Peachtree Street, N.W.

Suite 7 North

Atlanta, Georgia 30309-2935

(404) 815-0770

 

The Employer administersthe Plan.

 

EMPLOYER IDENTIFICATIONNUMBER:

 

58-2511877

 

PLAN NUMBER ASSIGNED TOTHIS PLAN:

 

501

 

ORIGINAL EFFECTIVE DATE:

 

April 19, 2001

 

PLAN YEAR:

 

Calendar year beginning on January 1 of each yearand ending on December 31.

 

FISCAL YEAR FORMAINTAINING PLAN RECORDS:

 

Calendar year beginning on January 1 of each yearand ending on December 31.

 

TYPE OF WELFARE PLAN:

 

The Plan is a severance pay plan that providesbenefits to certain Employees in the event of termination of their employmentdue to certain specified reasons.

 

TYPE OF ADMINISTRATION OFTHE PLAN:

 

The Employer administers the Plan as described in Section 7.

 

----

 

PROVISIONS FORELIGIBILITY REQUIREMENTS:

 

The Plan generally describes eligibility requirementsin Sections 2 and 3.

 

DESCRIPTION OF PLANBENEFITS:

 

The Plan generally describes conditions for payment ofbenefits and the amount of such benefits in Sections 2 and 3.

 

SOURCES OF CONTRIBUTIONSTO THE PLAN AND FUNDING MEDIUM:

 

The general assets of the Employer or the Affiliatethat employs Employee shall fund the severance pay from the Plan.

 

PROCEDURES FOR PRESENTINGCLAIMS AND REDRESS OF DENIED CLAIMS:

 

Section 6 provides detailed instructions forfiling a claim and redress of a denied claim.

 

AGENT FOR SERVICE OFPROCESS:

 

EarthLink, Inc.

1375 Peachtree Street, N.W.

Suite 7 North

Atlanta, Georgia 30309-2935

Attention: Chief People Officer

 

In addition to the agentlisted above, service of process may be made upon the Employer itself.

 

2

----

 

YOUR RIGHTS UNDER ERISA

 

The following statement is required by law to beincluded in this Summary Plan Description:

 

As a participant in the EarthLink, Inc.Change-in-Control Accelerated Vesting and Severance Plan (the “Plan”) you areentitled to certain rights and protections under the Employee Retirement IncomeSecurity Act of 1974, as amended (“ERISA”). ERISA provides that all Plan participants shall be entitled to:

 

Examine, without charge, at the Employer’s office andat other specified location, such as worksites, all Plan documents and a copyof the latest Annual Report (Form 5500 series) filed by the Plan with theU.S. Department of Labor and available at the Public Disclosure Room ofthe Pension and Welfare Benefit Administration.

 

Obtain, upon written request to the Employer, copiesof all Plan documents governing the operation of the Plan and copies of thelatest Annual Report (Form 5500 series) and an updated summary plandescription.  The Employer may make areasonable charge for the copies.

 

Receive a summary of the Plan’s annual financialreport.  The Employer is required by lawto furnish each Employee with a copy of this summary annual report.

 

In addition to creating rights for Plan participants,ERISA imposes duties upon the people who are responsible for the operation ofthe Plan.  The people who operate yourPlan, called fiduciaries, have a duty to do so prudently and in the interest ofyou and other Plan participants.  No one,including your employer or any other person, may fire you or otherwisediscriminate against you in any way solely in order to prevent you fromobtaining a benefit or exercising your rights under ERISA.  If your claim for a benefit is denied, inwhole or in part, you must receive a written explanation of the reason for thedenial.  You have the right to have thePlan review and reconsider your claim. Under ERISA, there are steps you can take to enforce the aboverights.  For instance, if you requestmaterials from the Plan and do not receive them within 30 days, you may filesuit in a federal court.  In such a case,the court may require the Employer to provide the materials and pay you up to$110 a day until you receive the materials, unless the materials were not sentbecause of reasons beyond the control of the Employer.  If you have a claim for benefits which isdenied or ignored, in whole or in part, you may file suit in a state or federalcourt.  If it should happen that Planfiduciaries misuse the Plan’s money, or if you are discriminated against forasserting your rights, you may file suit in a federal court.  The court will decide who should pay courtcosts and legal fees.  If you aresuccessful, the court may order the person you have sued to pay these costs andfees.  If you lose, the court may orderyou to pay these costs and fees.  If youhave any questions about your Plan, you should contact the Employer.  If you have any questions about thisstatement or about your rights under ERISA, you should contact the nearestoffice of the Pension and Welfare Benefits Administration, U.S. Department ofLabor, listed in your telephone directory or the Division of Technical Assistanceand Inquiries, Pension and Welfare Benefits Administration, U.S. Department ofLabor, 200 Constitution Avenue, N.W., 

 

----

 

Washington, D.C.20210.  You may also obtain certainpublications about your rights and responsibilities under ERISA by calling thepublications hotline of the Pension and Welfare Benefits Administration.

 

2

----

 

Exhibit B - Page 1

 
| **Benefits**                                               | ** ** | **Gold and Silver  Benefit Category**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               | ** ** | **Bronze  Benefit Category**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         |
|------------------------------------------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| Cash Severance                                             |       | Lump sum cash payment of 1.5 times the sum  of employee’s salary plus bonus target, if within 18 months after a change in  control the company terminates employee’s employment without cause or  employee voluntarily terminates his or her employment for good reason; no  cash severance if termination of employment is on account of the employee’s  death or disability.                                                                                                                                                                       |       | Lump sum cash payment equal to the sum of  employee’s salary plus bonus target, if within 18 months after a change in  control the company terminates employee’s employment without cause or  employee voluntarily terminates his or her employment for good reason; no  cash severance if termination of employment is on account of the employee’s  death or disability.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| COBRA Benefits                                             |       | Company will pay all amounts payable with  respect to the employee’s elected COBRA coverage (including coverage for  spouse and dependents) for 1.5 years from the termination of the employee’s  employment, if within 18 months of the change in control the company  terminates employee’s employment without cause or employee voluntarily  terminates his or her employment for good reason; no paid COBRA benefits if  the termination of employment is on account of the employee’s death or  disability.                                |       | Company will pay all amounts payable with  respect to the employee’s COBRA coverage (including coverage for spouse and  dependents) for 1 year from the termination of the employee’s employment, if  within 18 months of the change in control the company terminates employee’s  employment without cause or employee voluntarily terminates his or her  employment for good reason; no paid COBRA benefits if termination of  employment is on account of the employee’s death or disability.                                                                                                                                                                                                                                                                                                                                                                 |
| Accelerated vesting of outstanding stock  options          |       | If stock options are assumed or continued  after a change in control, all outstanding stock options granted on or before  the change in control will vest and be exercisable in full, if not already  fully vested, on termination of employee’s employment for any reason after  the change in control occurs; if options are not assumed or continued after  the change in control, all outstanding stock options are vested and  exercisable in full contemporaneously with the change in control, if not  already fully vested.                            |       | If stock options are assumed or continued  after a change in control, all outstanding stock options granted on or before  the change in control will vest and be exercisable at least as much as if the  employee had remained employed for 24 months after the change in control  occurs, if not already vested to such extent; if options are not assumed or  continued after the change in control, all outstanding stock options are  vested and exercisable at least as much as if the employee had remained  employed for 24 months after the change in control occurs, if not already vested  to such extent. Individuals in the Bronze benefit category will be  grandfathered into the vesting under the Silver benefit category if they are  currently participating in the Accelerated Vesting and Compensation  Continuation Plan and elect to participate in this Plan. |
| Accelerated vesting of outstanding  restricted stock units |       | If restricted stock units are assumed or  continued after a change in control, all outstanding restricted stock units  granted on or before the change in control will vest and be earned and  payable in full, if not already fully vested, on termination of employee’s  employment for any reason after the change in control occurs; if restricted  stock units are not assumed or continued after the change in control, all  outstanding restricted stock units are vested and earned and payable in full  contemporaneously with the change in control, |       | If restricted stock units are assumed or  continued after a change in control, all outstanding restricted stock units  granted on or before the change in control will vest and be earned and  payable at least as much as if the employee had remained employed for 24  months after the change in control occurs, if not already vested to such  extent; if restricted stock units are not assumed or continued after the change  in control, all outstanding restricted stock units are vested and earned and  payable at least as much as if the employee had                                                                                                                                                                                                                                                                                                                    |

 

----

 
| **Benefits** | ** ** | **Gold and Silver  Benefit Category**                                                                                                                                         | ** ** | **Bronze  Benefit Category**                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |
|--------------|------------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|         |       | if not already fully vested; provided that  restricted stock units that contain performance criteria will not vest if the  date for attainment of those criteria has passed.. |       | remained employed for 24 months after the  change in control occurs, if not already vested to such extent; provided that  restricted stock units that contain performance criteria will not vest if the  date for attainment of those criteria has passed or occurs more than 24  months after the change in control. Individuals in the Bronze benefit  category will be grandfathered into the vesting under the Silver benefit  category if they are currently participating in the Accelerated Vesting and  Compensation Continuation Plan and elect to participate in this Plan. |

 

2

----