Exhibit 10.41


EARTHLINK, INC.


CHANGE-IN-CONTROL ACCELERATED
VESTING

AND SEVERANCE PLAN


THIS EARTHLINK, INC. CHANGE-IN-CONTROL ACCELERATED
VESTING AND SEVERANCE PLAN (this “Plan”) was adopted originally as of the 19th day of April, 2001 by EarthLink, Inc., a
Delaware corporation (“Employer”), and its Affiliates (as defined below) for
the benefit of the eligible employees described herein and amended effective as
of October 19, 2005 and amended and restated effective as of February 17, 2006.


WITNESSETH:


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


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


NOW, THEREFORE, Employer and its Affiliates hereby
establish 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 employer
under Code Sections 414(b) or 414(c).


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


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


(1)           to Employee’s
surviving spouse; or


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


(3)           if there is neither
a surviving spouse nor living descendants, to Employee’s estate.













(d)           “Benefit Category”
shall mean one of the following benefit categories:  (1) the Gold Benefit Category, (2) the
Silver Benefit Category or (3) the Bronze Benefit Category.  For purposes of this Plan, the Gold Benefit
Category shall include the Chief Executive Officer and President of the
Employer; the Silver Benefit Category shall include the Chief Financial Officer
of the Employer, the Chief Executive Officer, President and Chief Financial
Officer of an Affiliate, and the Executive Vice Presidents of the Employer or
any Affiliate; and the Bronze Benefit Category shall include the Vice
Presidents and the Blue Zone Classified Jobs of the Employer or any
Affiliate.  If the Employer designates
additional Qualifying Positions, then the Employer also shall specify into
which Benefit Category that Qualifying Position will be included.  The Employee’s Benefit Category shall be
determined based on the Employee’s Qualifying Position at the time of the
Change in Control of the Employer, and any Employee in more than one Qualifying
Position shall be deemed for purposes of this Plan to be in only the Qualifying
Position that would entitle such Employee to the greatest benefits under this
Plan.


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


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


(g)           “Business
Combination” means a reorganization, merger or consolidation of the
Employer.


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


(i)            “Cause”
shall exist where the Employee’s Termination of Employment is by the Employer
or an Affiliate upon (1) the Employee’s willful and continued failure to
substantially perform his or her employment duties (other than any failure On
Account of a Disability), after a written notice is delivered to the Employee
by an executive officer of the Employer or Affiliate which employs Employee or
the person in charge of the Human Resources function of such Employer or
Affiliate (or if the Employee is the Chief Executive Officer or President of
the Employer, the Chairman of the Compensation Committee of the Board of Directors
of the Employer) that specifically identifies the manner in which such
executive officer or person in charge of the Human Resources function (or such
Chairman) believes that the Employee has failed to substantially perform his or
her employment duties and after a reasonable opportunity is afforded to the
Employee to cure his or her performance failure(s), or (2) the Employee
willfully engaging in misconduct that is materially injurious to the Employer
or an Affiliate, monetarily or otherwise. 
For purposes of this definition, no act, or failure to act, on the
Employee’s part will be considered “willful” unless done, or omitted to be
done, by the Employee not in good faith 



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and without reasonable belief that his or her act or omission was in
the best interest of the Employer or an Affiliate.  Notwithstanding the above, the Employee will
not be deemed to have had a Termination of Employment for Cause unless and
until he or she has been given a copy of the notice of termination from an
executive officer or person in charge of the Human Resources function (or in
case of the Chief Executive Officer or President of the Employer, the Chairman
of the Compensation Committee of the Board of Directors), after reasonable
notice to the Employee and an opportunity for him or her, together with his or
her counsel, to be heard before (1) the Chief Executive Officer of the
Employer, or (2) if the Employee is an officer of the Employer or an Affiliate
who has been elected or appointed by the Board of Directors of the Employer or
Affiliate, as the case may be, to such office, the Board of Directors of the
Employer or Affiliate, or (3) in all cases not involving an elected officer and
where the Chief Executive Officer of the Employer otherwise directs or
delegates this responsibility, the executive officer or person in charge of the
Human Resources function or a direct report to such Chief Executive Officer to
whom such responsibility was delegated, finding that in the good faith opinion
of the Chief Executive Officer, or, in the case of an elected officer, finding
that in the good faith opinion of two-thirds of the applicable Board of
Directors, or, in all other cases, finding that in the good faith opinion of
the applicable executive officer or person in charge of the Human Resources
function or a direct report to the Chief Executive Officer to whom such
responsibility was delegated, that the Employee committed the conduct set forth
above in clauses (1) or (2) of this definition and specifying the particulars
of that finding in detail.


(j)            “Change in
Control” of the Employer means the occurrence of any of the following
events:


(1)           The accumulation in
any number of related or unrelated transactions by any Person of Beneficial
Ownership of more than fifty percent (50%) of the combined voting power of the
Employer’s Voting Stock; provided that for purposes of this subparagraph (1), a
Change in Control will not be deemed to have occurred if the accumulation of
more than fifty percent (50%) of the voting power of the Employer’s Voting
Stock results from any acquisition of Voting Stock (a) directly from the
Employer that is approved by the Incumbent Board, (b) by the Employer, (c) by
any employee benefit plan (or related trust) sponsored or maintained by the
Employer or any Subsidiary, or (d) by any Person pursuant to a Business
Combination that complies with clauses (a) and (b) of subparagraph (2) below;
or


(2)           Consummation of a
Business Combination, unless, immediately following that Business Combination,
(a) all or substantially all of the Persons who were the beneficial owners of
Voting Stock of the Employer immediately prior to that Business Combination
beneficially own, directly or indirectly, at least fifty percent (50%) of the
then outstanding shares of common stock and at least fifty percent (50%)
of the combined voting power of the then outstanding Voting Stock entitled to
vote generally in the election of directors of the entity resulting from that
Business Combination (including, without limitation, an entity that as a result
of that transaction owns the Employer or all or substantially all of the
Employer’s assets either directly or through one or more subsidiaries) in
substantially the same proportions relative to each other as their ownership,
immediately prior to that Business Combination, of the Voting Stock of the
Employer, and (b) at least sixty percent (60%) of the members of the Board
of Directors of the entity resulting from that Business Combination holding at
least sixty percent (60%) of the voting power of such Board of Directors were
members of the Incumbent Board at the time of the execution of the initial
agreement or of the action of the Board of Directors 



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providing for that Business Combination and as a result of or in
connection with such Business Combination, no Person has a right to dilute
either of such percentages by appointing additional members to the Board of
Directors or otherwise without election or other action by the stockholders; or


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


(4)           Approval by the
shareholders of the Employer of a complete liquidation or dissolution of the
Employer, except pursuant to a Business Combination that complies with clauses
(a) and (b) of subparagraph 2; or


(5)           The acquisition 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 the
direction of the management and policies of the Employer (a) through the
ownership of securities which provide the holder with such power excluding
voting 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 is
employed by the Employer or an Affiliate and selected to participate in the
Plan and who holds a Qualifying Position in the Employer or an Affiliate at all
times from initial participation in the Plan through the Change in Control of
the Employer.  All full-time common-law
employees of the Employer or an Affiliate who were employed by the Employer or
an Affiliate and who held a Qualifying Position in the Employer or an Affiliate
on April 19, 2001, and have been continuously employed since that time,
participate in the Plan as of such effective date, subject to compliance with
the other terms and conditions of the Plan. 
All full-time common-law employees of the Employer or an Affiliate who
were employed by the Employer or an Affiliate and who held a Qualifying
Position in the Employer or an Affiliate beginning after April 19, 2001 (and
are not described in the preceding sentence) shall participate in the Plan as
of the date the Employer selects such individual for participation, subject to
compliance with the other terms and conditions of the Plan.  A full-time common law employee only includes
an individual who renders personal services to the Employer or an Affiliate and
who, in accordance with the established payroll accounting and personnel
policies of the Employer or an Affiliate, is characterized by the Employer or
an Affiliate as a full-time common law employee.  Notwithstanding the foregoing, independent
contractors are not employees for purposes of this Plan.  Moreover, notwithstanding the foregoing, an
Employee does not include a person whom the Employer or an Affiliate has
identified on its payroll, personnel or tax records as an independent
contractor or a person who has acknowledged in writing to the Employer or an
Affiliate that such person is an independent contractor whether or not a court,
the Internal Revenue Service or any other entity ultimately determines such classification
to be correct as a matter of law.  Exhibit
A attached hereto shall contain the names of each Employee and his or her
Qualifying Position and Benefit Category. 
The Employer shall update Exhibit A as necessary to always
reflect the Employees participating in the Plan.  Notwithstanding any other 



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provision of this Plan, an individual who is covered under and
participates in the EarthLink, Inc. Accelerated Vesting and Compensation
Continuation Plan shall not become an Employee and participate in this Plan
unless and until he or she waives and releases any and all rights to benefits
and coverage he or she has under the EarthLink, Inc. Accelerated Vesting and
Compensation Continuation Plan.


(n)           “Exchange Act”
means the Securities Exchange Act of 1934, including amendments, or successor
statutes of similar intent.


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


(1)           With respect to an
Employee in either the Gold or Silver Benefit Category, the assignment to the
Employee of duties inconsistent with his or her position and status with the
Employer or Affiliate as they existed immediately prior to a Change 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, as they
existed immediately prior to a Change in Control of the Employer, except in
connection with the Employee’s Termination of Employment for Cause or On
Account of Disability or as a result of his or her death or by the Employee
other than For Good Reason; or


(2)           With respect to an
Employee in the Bronze Benefit Category, the assignment to the Employee of
duties requiring skills and experience that are inconsistent with the skills
and experience required for his or her duties with the Employer immediately
prior to a Change in Control of the Employer, except in connection with the
Employee’s Termination of Employment for Cause or On Account of Disability or
as a result of his or her death or by Employee other than for Good Reason; or


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


(4)           A reduction by the
Employer or an Affiliate in the target cash bonus payable to the Employee under
any incentive compensation plan(s), as it (or they) may be modified from time
to time, in effect immediately prior to a Change in Control of the Employer, or
a failure by the Employer or an Affiliate to continue the Employee as a
participant in the incentive compensation plan(s) on at least the basis of the
Employee’s participation immediately prior to a Change in Control of the
Employer or to pay the Employee the amounts that he or she would be entitled to
receive in accordance with such plan(s); or


(5)           The Employer or an
Affiliate requiring the Employee to be based more than thirty-five (35) miles
from the location where he or she is based immediately prior to a Change in
Control of the Employer, except for travel on the Employer’s or Affiliate’s
business that is required or necessary to performance of his or her job and
substantially consistent with his or her business travel obligations prior to
the Change in Control of the Employer, or if the Employee consents to that
relocation, the failure by the Employer or an Affiliate to pay (or reimburse
the Employee for) all reasonable moving expenses incurred by the Employee or to
indemnify the Employee against any loss realized in the sale of his or her
principal residence in connection with that relocation; or



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


(7)           The failure by the
Employer or an Affiliate to obtain the assumption of the agreement to perform
this Plan by any successor; or


(8)           Any purported
Termination of Employment that is not effected pursuant to a notice of
termination satisfying the requirements of a Termination of Employment for
“Cause.”


(p)           “Incumbent Board”
means a Board of Directors at least a majority of whom consist of individuals
who either are (a) members of the Employer’s Board of Directors as of April 19,
2001 or (b) members who become members of the Employer’s Board of Directors
subsequent to such date whose election, or nomination for election by the
Employer’s shareholders, was approved by a vote of at least sixty percent (60%)
of the directors then comprising the Incumbent Board (either by a specific vote
or by approval of the proxy statement of the Employer in which that person is
named as a nominee for director, without objection to that nomination), but
excluding, for that purpose, any individual whose initial assumption of office
occurs as a result of an actual or threatened election contest (within the
meaning of Rule 14a-11 of the Exchange Act) with respect to the election
or removal of directors or other actual or threatened solicitation of proxies
or consents by or on behalf of a Person other than the Board of Directors.


(q)           “On Account of
Disability” shall exist where the Employee’s Termination of Employment results
from the Employee being “Disabled” as a result of a “Disability” in accordance
with the policies of the Employer or Affiliate that employed the Employee 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) or
14(d)(2) of the Exchange Act.


(s)           “Qualifying
Position” shall mean any one of the following:  (1) the Chief Executive Officer or President
of the Employer; (2) the Chief Financial Officer of the Employer, the Chief
Executive Officer, President or Chief Financial Officer of an Affiliate, or the
Executive Vice Presidents of the Employer or any Affiliate; (3) the Vice
Presidents or Blue Zone Classified Jobs of the Employer or any Affiliate and
(4) any other position or job classification that the Employer hereafter
designates as being a Qualifying Position.


(t)            “Retirement Plan”
shall mean any qualified or supplemental employee pension benefit plan, as
defined in Section 3(2) of the Employee Retirement Income Security Act of 



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1974, as amended (“ERISA”), currently made available by Employer or an
Affiliate in which Employee participates.


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


(v)           “Specified
Employee” means an employee (as that term is used in Code Section 416) who
is (i) an officer of the Employer having annual compensation greater than
$135,000 (with certain adjustments for inflation after 2005), (ii) a
five-percent owner of the Employer or (iii) a one-percent owner of the Employer
having annual compensation greater than $150,000.  For purposes of this Section, no more than 50
employees (or, if lesser, the greater of three or 10 percent of the employees)
shall be treated as officers.  Employees
who (i) normally work less than 17 1/2 hours per week, (ii) normally work not
more than 6 months during any year, (iii) have not attained age 21 or (iv) are
included in a unit of employees covered by an agreement which the Secretary of
Labor finds to be a collective bargaining agreement between employee
representatives and the Employer (except as otherwise provided in regulations
issued under the Code) shall be excluded for purposes of determining the number
of officers.  For purposes of this
Section, the term “five-percent owner” 
(“one-percent owner”) means any person who owns more than five percent
(one percent) of the outstanding stock of the Employer or stock possessing more
than five percent (one percent) of the total combined voting power of all stock
of the Employer.  For purposes of
determining ownership, the attribution rules of Section 318 of the Code shall
be applied by substituting “five percent” for “50 percent” in Section 318(a)(2)
and the rules of Sections 414(b), 414(c) and 414(m) of the Code shall not
apply.  For purposes of this Section, the
term “compensation” has the meaning given such term by Section 414(q)(4) of the
Code.  The determination of whether the
Employee is a Specified Employee will be based on a December 31 identification
date such that if the Employee satisfies the above definition of Specified
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 of Employment during
the 12-month period beginning on the first day of the fourth month following
the identification date.  This definition
is intended to comply with the specified employee rules of Section
409A(a)(2)(B)(i) of the Code and shall be interpreted accordingly.


(w)          “Termination of
Employment” means the termination of the Employee’s employment with the
Employer and all Affiliates; provided, however, that the Employee will not be
considered as having had a Termination of Employment if (i) the Employee
continues 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 at least
equal to 20 percent of the services rendered, on average, during the
immediately preceding three full calendar years of employment (or, if employed
less than three years, such lesser period) and the annual remuneration for such
services is at least equal to 20 percent of the average annual remuneration
earned during the final three full calendar years of employment (or if less,
such lesser period), (ii) the Employee continues to provide services to the
Employer or any Affiliate in a capacity other than as an employee (as that term
is used in Code Section 409A) and such services are provided at an annual rate
that is 50 percent or more of the services rendered, on average, during the
immediately preceding three full calendar years of employment (or, if employed
less than three years, such lesser period) and the annual remuneration for such
services is 50 percent or more of the annual remuneration earned during the
final three full calendar years of employment (or, if less, such lesser period)
or (iii) the 



 7
 









Employee 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 such leave does not exceed six months, or if longer, so long as the
individual’s right to reemployment with the Employer or any Affiliate is
provided either by statute or by contract. 
If the period of leave (i) ends or (ii) exceeds six months and the
Employee’s right to reemployment is not provided either by statute or by
contract, the Employee’s Termination of Employment will be deemed to occur on
the first date immediately following such time if not reemployed by the
Employer or any Affiliate before such time and eligibility for payments and
benefits hereunder will be determined as of that time.  For purposes of this Section, annual rate of
providing services shall be determined based upon the measurement used to
determine the Employee’s base compensation.


(x)            “Voting Stock”
means the then outstanding securities of an entity entitled to vote generally
in the election of members of that entity’s Board of Directors.


(y)           “Welfare Plan”
shall mean any health and dental plan, disability plan, survivor income plan,
life insurance plan or similar plan, as defined in Section 3(1) of ERISA,
currently made available by the Employer or an Affiliate in which an Employee
participates.


2.                                       Benefits
Upon Termination of Employment.


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


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


(2)           The Employer or an
Affiliate shall pay any and all amounts with respect to COBRA continuation
coverage that the Employee elects under any Welfare Plan of the Employer or an
Affiliate for him or her or his or her spouse or dependents through the
Benefits Severance Period, including all attendant administrative fees and
expenses, however described or denominated. 
All such payments shall be made in such manner 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 and no later than the 15th day of the third month of the calendar year
following the calendar year of the Employee’s Termination of Employment.


(3)           The Employee or his
Beneficiary, or any other person entitled to receive benefits with respect to
the Employee under any Retirement Plan, Welfare Plan, or other plan or program
maintained by Employer or any Affiliate in which Employee participates at the
date of the Employee’s Termination of Employment, shall receive any and all
benefits accrued under any such Retirement Plan, Welfare Plan or other plan or
program to the date of the Employee’s Termination of Employment, the amount,
form and time of payment of such benefits to be determined by the terms of such
Retirement Plan, Welfare Plan, or other plan or program.



 8















(4)           Notwithstanding any
other provision of this Plan, however, if the Employee is a Specified Employee,
and if the benefits and payments under this Plan are not otherwise exempt from
Code Section 409A, then to the extent necessary to comply with Section 409A no
payments may be made hereunder (including, if necessary, any COBRA payments or
reimbursements) before the date which is six months after the Specified
Employee’s Termination of Employment within the meaning of Section 409A or, if
earlier, the date of death of the Specified Employee.  Because the amounts paid pursuant to this
Plan should be paid by the 15th day of the third month following the end 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 delay provisions will only be
applicable if it is subsequently determined that the amounts paid pursuant to
this Plan are not exempt from Section 409A.


(b)           If the Employee has
a Termination of Employment by the Employer or an Affiliate or by 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 the Employee, by the
Employer or an Affiliate for Cause or by the Employee other than for Good
Reason, then the Employee’s compensation shall be paid through the date of his
or her Termination of Employment, and the Employer and its Affiliates shall
have no further obligation with respect to the Employee under this Plan.  Such Termination of Employment shall have no
effect upon an Employee’s other rights, including but not limited to rights
under any Retirement Plan, Welfare Plan or other plan or program in which
Employee participates, the amount, form and time of payment of such benefits to
be determined by the terms of such Retirement Plan, Welfare Plan, or other plan
or program.


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


(d)           The Employer or an
Affiliate that employs the Employee on his or her last day of employment will
fund the payments to be made under the Plan to such Employee from its general
assets.


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


3.                                       Accelerated
Vesting of Options and Restricted Stock Units.


(a)           (i)            In the event no provision is made
for the continuance, assumption or substitution by the Employer or its
successor in connection with a Change in Control of the Employer of outstanding
stock options the Employer or an Affiliate granted before the Change in Control
of the Employer, then contemporaneously with the Change in Control of the
Employer, all outstanding stock options that the Employer or any Affiliate
previously granted to an Employee in either the Gold or Silver Benefit Category
shall be exercisable in full, if not then already fully exercisable, in
accordance with the terms of such options and the applicable plans pursuant to
which they were granted, notwithstanding any provisions in the stock options or




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plans to the contrary regarding the exercisability of such options.  If provision is made for the continuance,
assumption or substitution by the Employer or its successor in connection with
the Change in Control of the Employer of outstanding stock options the Employer
or an Affiliate granted before the Change in Control of the Employer, then on
the Employee’s Termination of Employment on or after a Change in Control of the
Employer occurs, all outstanding stock options that the Employer or any
Affiliate previously granted to an Employee in either the Gold or Silver
Benefit Category shall be exercisable in full, if not then already fully
exercisable, in accordance with the terms of such options and the applicable
plans pursuant to which they were granted, notwithstanding any provisions in
the stock options or plans to the contrary regarding the exercisability of such
stock options.


(ii)           In the event no
provision is made for the continuance, assumption or substitution by the
Employer or its successor in connection with a Change in Control of the
Employer of outstanding stock options the Employer or an Affiliate granted
before the Change in Control of the Employer, then contemporaneously with the
Change in Control of the Employer, all outstanding stock options that the
Employer or any Affiliate previously granted to an Employee in the Bronze
Benefit Category shall be exercisable, in accordance with the terms of such
options and the applicable plans pursuant to which they were granted,
notwithstanding any provisions in the stock options or plans to the contrary
regarding the exercisability (and only exercisability) of such options, on at
least the basis they would have been exercisable had Employee remained employed
with the Employer or any Affiliate for twenty-four (24) months after the Change
in Control of the Employer occurs, if not then already exercisable to such
extent.  If provision is made for the
continuance, assumption or substitution by the Employer or its successor in
connection with the Change in Control of the Employer of outstanding stock
options the Employer or an Affiliate granted before the Change in Control of
the Employer, then on the Employee’s Termination of Employment on or after a
Change in Control occurs, all outstanding stock options that the Employer or
any Affiliate previously granted to an Employee in the Bronze Benefit Category
shall be exercisable, in accordance with the terms of such options and the
applicable plans pursuant to which they were granted, notwithstanding any
provisions in the stock options or plans to the contrary regarding the exercisability
(and only exercisability) of such stock options, on at least the basis they
would have been exercisable had Employee remained employed with the Employer or
an Affiliate for twenty-four (24) months after the Change in Control of the
Employer occurs, if not then already exercisable to such extent.


(iii)          It is deemed under
this Plan that the Employer or an Affiliate consistent with the plans and
agreements governing the applicable stock options accelerated the
exercisability of such outstanding stock options at such time and on such
basis.  Notwithstanding any other
provision of this Plan, this Section 3 only impacts the exercisability and
vesting of the applicable stock option; it is not intended to nor does it
extend the terms or expiration dates of the applicable stock options.


(iv)          Notwithstanding any
of the foregoing, for purposes of this Section 3 only, an Employee in the
Bronze Benefit Category who previously participated in the EarthLink, Inc.
Accelerated Vesting and Compensation Continuation Plan and who elected to
participate in this Plan and waive any and all rights to benefits he or she had
under the EarthLink, Inc. Accelerated Vesting and Compensation Continuation
Plan shall be treated for purposes of this Section 3 as if he or she were in
the Silver Benefit Category solely for purposes of the accelerated vesting of
stock options.  Exhibit C
attached hereto shall show the names of each employee who is included 



 10
 









in the foregoing position and who is entitled to the treatment
described in this Section 3(a)(iv) if they become an Employee under this Plan.


(v)           Exhibit B
attached hereto provides a summary of the accelerated vesting to which an
Employee will be entitled based on the Benefit Category for which such Employee
qualifies.  In the event of any conflict
between such summary and the terms of Section 3 of the Plan, the provisions of
Section 3 of the Plan shall govern.


(b)           (i)            In the event no provision is made
for the continuance, assumption or substitution by the Employer or its
successor in connection with a Change in Control of the Employer of outstanding
restricted stock units the Employer or an Affiliate granted before the Change
in Control of the Employer, then contemporaneously with the Change in Control
of the Employer, all outstanding restricted stock units that the Employer or
any Affiliate previously granted to an Employee in either 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 of such restricted stock units
and the applicable plans pursuant to which they were granted, notwithstanding
any provisions in the restricted stock units or plans to the contrary regarding
their becoming fully earned and payable; provided that a restricted stock unit
that contains performance criteria shall not become fully earned and payable if
the date, if any, for attainment of the performance criteria on which such
restricted stock unit would have become fully earned and payable has passed as
of the date of the Change of Control.  If
provision is made for the continuance, assumption or substitution by the
Employer or its successor in connection with the Change in Control of the
Employer of outstanding restricted stock units the Employer or an Affiliate
granted before the Change in Control of the Employer, then on the Employee’s
Termination of Employment on or after a Change in Control of the Employer
occurs, all outstanding restricted stock units that the Employer or any
Affiliate previously granted to an Employee in either 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 of such restricted stock units
and the applicable plans pursuant to which they were granted, notwithstanding
any provisions in the restricted stock units or plans to the contrary regarding
their becoming fully earned and payable; provided that a restricted stock unit
that contains performance criteria shall not become fully earned and payable if
the date, if any, for attainment of the performance criteria on which such
restricted stock unit would have become fully earned and payable has passed as
of the date of the Change of Control.


(ii)           In the event no
provision is made for the continuance, assumption or substitution by the
Employer or its successor in connection with a Change in Control of the
Employer of outstanding restricted stock units the Employer or an Affiliate
granted before the Change in Control of the Employer, then contemporaneously with
the Change in Control of the Employer, all outstanding restricted stock units
that the Employer or any Affiliate previously granted to an Employee in the
Bronze Benefit Category shall be earned and payable, in accordance with the
terms of such restricted stock units and the applicable plans pursuant to which
they were granted, notwithstanding any provisions in the restricted stock units
or plans to the contrary regarding their becoming fully earned and payable on
at least the basis they would have been earned and payable had Employee
remained employed with the Employer or any Affiliate for twenty-four (24)
months after the Change in Control of the Employer occurs, if not then already
earned and payable to such extent; provided that a restricted stock unit that
contains performance criteria shall not become fully earned and payable if the
date, if any, for attainment 



 11
 









of the performance criteria on which such restricted stock unit would
have become fully earned and payable has passed 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 by the Employer or its
successor in connection with the Change in Control of the Employer of
outstanding restricted stock units the Employer or an Affiliate granted before
the Change in Control of the Employer, then on the Employee’s Termination of
Employment on or after a Change in Control occurs, all outstanding restricted
stock units that the Employer or any Affiliate previously granted to an
Employee in the Bronze Benefit Category shall be earned and payable, in
accordance with the terms of such restricted stock units and the applicable
plans pursuant to which they were granted, notwithstanding any provisions in
the restricted stock units or plans to the contrary regarding their becoming
earned and payable, on at least the basis they would have been earned and
payable had Employee remained employed with the Employer or an Affiliate for
twenty-four (24) months after the Change in Control of the Employer occurs, if
not then already earned and payable to such extent; provided that a restricted
stock unit that contains performance criteria shall not become fully earned and
payable if the date, if any, for attainment of the performance criteria on
which such restricted stock unit would have become fully earned and payable has
passed 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.


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


(iv)          Notwithstanding any
of the foregoing, for purposes of this Section 3 only, an Employee in the
Bronze Benefit Category who previously participated in the EarthLink, Inc.
Accelerated Vesting and Compensation Continuation Plan and who elected to participate
in this Plan and waive any and all rights to benefits he or she had under the
EarthLink, Inc. Accelerated Vesting and Compensation Continuation Plan shall be
treated for purposes of this Section 3 as if he or she were in the Silver
Benefit Category solely for purposes of the accelerated vesting of restricted
stock units.  Exhibit C
attached hereto shall show the names of each employee who is included in the
foregoing position and who is entitled to the treatment described in this
Section 3(b)(iv) if they become an Employee under this Plan.


(v)           Exhibit B
attached hereto provides a summary of the accelerated vesting to which an
Employee will be entitled based on the Benefit Category for which such Employee
qualifies.  In the event of any conflict
between such summary and the terms of Section 3 of the Plan, the provisions of
Section 3 of the Plan shall govern.


4.                                       Release
and Setoff.


Notwithstanding any other provision of this Plan,
payments shall be made under the Plan to any Employee or his Beneficiary only
after the Employee executes a release and waiver containing such terms and
conditions as the Employer and its Affiliates may reasonably require, including
non-solicitation, non-competition and confidentiality provisions.  Each Employee’s right to participate under
this Plan and to receive benefits hereunder is contingent upon the 



 12
 









Employee’s agreement to this Section 4 and his or
her continued compliance with any agreements entered into hereunder.  The Employer and its Affiliates also may
reduce and set-off any payments to or with respect to an Employee pursuant to
this Plan by any amount the Employee or his Beneficiary may owe to Employer or
any Affiliate.


5.                                       Death.


If an Employee has a Termination of Employment under
circumstances described in Section 2(a), then upon the Employee’s subsequent
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 paid as specified by the
applicable Retirement Plan, Welfare Plan or other plan or program.


6.             Claim
for Benefits.


(a)           Employees do not
need to complete a claim for benefits to obtain benefits under the Plan.  However, Employees who dispute the amount of,
or their entitlement to, Plan benefits must file a claim with the Employer to
obtain Plan benefits.  Any claim by an
Employee who disputes the amount of, or his or her entitlement to, Plan
benefits must be filed in writing within thirty (30) days of the event that the
Employee is asserting constitutes an entitlement to such Plan benefits.  Failure by the Employee to submit such claim
within the thirty (30)-day period shall bar the Employee from any claim for
benefits under the Plan as a result of the occurrence of such event.


(b)           Claims for benefits
shall be filed in writing with the Employer. 
Written notice of the decision on such claim shall be furnished to the
claimant within ninety (90) days of receipt of such claim unless special
circumstances require an extension of time for processing the claim.  If the Employer needs an extension of time to
process a claim, written notice will be delivered to the claimant before the
end of the initial ninety (90) day period. 
The notice of extension will include a statement of the special
circumstances requiring an extension of time and the date 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 necessary material or information, the
written notice to the claimant will explain what more is needed and why, and
will tell the claimant that the claimant may refile a proper claim.


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


(d)           If any part of a claim for benefits
under this Plan is denied, the Employer will provide the claimant with a
written notice stating (i) the specific reason or reasons for the denial;
(ii) the specific reference to pertinent Plan provisions on which the
denial was based; (iii) a description of any additional material or
information necessary for the claimant to perfect the claim and an explanation
of why such material or information is necessary; and (iv) appropriate
information as to 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 Section 502(a) of ERISA following an adverse benefit
determination on review.



 13
 









(e)           The full value of any payment made
according to the Plan satisfies that much of the claim and all related claims
under the Plan.


(f)            If a claim is
denied, the claimant may appeal the denial by delivering a written notice 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 other
information relating to the claimant’s claim for benefits.  The claimant will be provided, upon request
and free of charge, reasonable access to, and copies of, all documents, records
and other information relevant to the claimant’s claim for benefits.  The Employer’s review will take into account
all such written comments, documents, records and other information the
claimant submits relating to the claim, without regard to whether such
information was submitted or considered initially.


(g)           The Employer will
advise the claimant in writing of the final determination after review.  The decision on review will be written in a
manner calculated to be understood by the claimant, and it will include
specific reasons for the decision and specific references to the pertinent
provisions of the Plan or related documents on which the decision is
based.  Such written notification also
will include a statement that the claimant is entitled to receive, upon request
and free of charge, reasonable access to, and copies of, all documents, records
and other information relevant to the claimant’s claim for benefits, the
claimant’s right to obtain the information about such procedures and a
statement of the claimant’s right to bring a civil action under Section 502(a)
of ERISA following a denial on review. 
The written decision will be rendered within sixty (60) days after the
request for review is received, unless special circumstances require an
extension of time for processing.  If an
extension is necessary the Employer will furnish written notice of the
extension to the claimant before the end of the 60-day period and indicate the
special circumstances requiring the extension of time.  The extension notice will indicate the date
by which the Employer expects to render a decision.  The decision will then be rendered as soon as
possible, but no later than one hundred twenty (120) days after receipt of the
request for review.


(h)           If the Employer
holds regularly scheduled meetings at least quarterly, the time periods for
rendering the written decision described in the preceding paragraph shall not
apply and the Employer shall instead make a benefit determination no later than
the date of the meeting of the Employer that immediately follows the Plan’s
receipt of a request for review, unless the request for review is filed within
30 days preceding the date of such meeting. 
In such case, a benefit determination may be made by no later than the
date of the second meeting following the Plan’s receipt of the request for
review.  If special circumstances require
a further extension of time for processing, a benefit determination will be
rendered no later than the third meeting of the Employer following the Plan’s
receipt of the request for review.  If
such an extension of time for review is required because of special
circumstances, the Employer will provide the claimant with written notice of
the extension, describing the special circumstances and the date as of which
the benefit determination will be made, prior to the commencement of the
extension.  The Employer will notify the
claimant of the benefit determination as soon as possible, but not later than
five days after the benefit determination is made.


(i)            In no event shall
an Employee or other claimant be entitled to challenge a decision of the
Employer in court or in any other administrative proceeding unless and until
these claim review and appeal procedures have been complied with and exhausted.
 The claimant 



 14
 









shall have ninety (90) days from the date of receipt of the Employer’s
decision on review in which to file suit regarding a claim for benefits under
the Plan.  If suit is not filed within
such 90-day period, it shall be forever barred. 
The decisions made hereunder shall be final and binding on Employees and
any other party.


7.                                       Administration
of the Plan.


The Employer through its Board of Directors shall
interpret and administer the Plan.  The
Employer shall establish rules for the administration of the Plan.  The Employer shall have the discretionary
authority to construe the terms of the Plan and shall determine all questions
arising in its administration, interpretation and application, including those
concerning eligibility for benefits.  All
determinations of the Employer shall be final and binding on all Employees and
Beneficiaries.  The Employer may appoint
a committee or an agent or other representative to act on its behalf and may
delegate to such committee or agent or representative any of its powers
hereunder.  Any action that such
committee or agent or representative takes shall be considered to be the action
of the Employer, when the committee or agent or representative is acting within
the scope of the authority that the Employer delegated to it, and the Employer
shall be responsible for all such actions. 
If the Employer appoints a committee or other agent or representative to
act on its behalf, the Employer will pay all the expenses relating to such
administration, and, as permitted by law, the Employer will indemnify and save
each committee member or agent or representative harmless against expenses,
claims, and liabilities arising out of being such committee member or agent or
representative.  The Employer also may
employ such accountants, counsel, specialists and other advisory clerical
persons as it deems necessary or desirable in connection with administration of
the Plan.  The Employer is entitled to
rely 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.                                       Employee
Assignment.


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


9.                                       Benefits
Unfunded.


All rights under this Plan of the Employees and their
spouses and Beneficiaries, shall at all times be entirely unfunded, and no
provision shall at any time be made with respect to segregating any assets of
Employer or any Affiliate for payment of any amounts due hereunder.  The Employees, their spouses and Beneficiaries
shall have only the rights, if any, of general unsecured creditors of Employer
and its Affiliates.



 15
 









10.                                 Applicable
Law.


This Plan shall be construed and interpreted pursuant
to 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 States
of America.


11.                                 No
Employment Contract.


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


12.                                 Severability.


In the event any provision of this Plan is held
illegal or invalid, the remaining provisions of this Plan shall not be affected
thereby.


13.                                 Successors.


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


14.                                 Amendment
and Termination.


Notwithstanding any other provision of this Plan,
Employer shall have the right (i) to declare that an individual who previously
was selected to participate as an Employee in the Plan shall no longer
participate as an Employee in the Plan, (ii) to amend the Plan from time 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 occurs or after a Change
in Control of the Employer occurs, without the Employee’s consent, (i) the
Employer may not declare that an individual who previously was selected to
participate as an Employee in the Plan no longer participates as an Employee in
the Plan, (ii) no amendment may be made that diminishes any Employee’s rights
under the Plan and (iii) the Plan may not be terminated until all benefits
that become payable under the Plan are paid in full.  An amendment may be made retroactively to the
Plan if it is necessary to make this Plan conform to applicable law.  Upon termination of the Plan, the Plan shall
no longer be of any further force or effect, and neither the Employer, any
Affiliate nor any Employee shall have any obligations or rights under this Plan.  Likewise, the rights of any individual who
was an Employee and whose designation as an Employee is revoked or rescinded by
the Employer shall cease upon such action.


15.                                 Notice.


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



 16
 









If to Employer:


EarthLink, Inc.

1375 Peachtree Street, N.W.

Suite 7 North

Atlanta, Georgia 30309-2935

Attention: Executive Vice President, Employee Services


If to an Employee:


The address last indicated on the records of Employer.


16.                                 Excise
Tax.


Despite any other provisions of this Plan to the
contrary, if the receipt of any payments or benefits under this Plan would
subject an Employee to tax under Code Section 4999, the Employer may determine
whether some amount of payments or benefits would meet the definition of a “Reduced
Amount.”  If the Employer determines that
there is a Reduced Amount, the total payments or benefits to the Employee
hereunder must be reduced to such Reduced Amount, but not below zero.  If the Employer determines that the benefits
and payments must be reduced to the Reduced Amount, the Employer must promptly
notify the Employee of that determination, with a copy of the detailed
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 the payments under this
Plan only if the aggregate Net After Tax Receipts to the Employee would thereby
be increased.  As a result of the
uncertainty in the application of Code Section 4999 at the time of the initial
determination by the Employer under this Section, however, it is possible that
amounts will have been paid under the Plan to or for the benefit of an Employee
which should not have been so paid (“Overpayment”) or that additional amounts
which will not have been paid under the Plan to or for the benefit of an
Employee could have been so paid (“Underpayment”), in each case consistent with
the calculation of the Reduced Amount. 
If the Employer, based either upon the assertion of a deficiency by the
Internal Revenue Service against the Employer or the Employee, which the
Employer believes has a high probability of success, or controlling precedent
or other substantial authority, determines that an Overpayment has been made,
any such Overpayment must be treated for all purposes as a loan which the
Employee must repay to the Employer together with interest 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 no amount shall be payable by the
Employee to the Employer if and to the extent such deemed loan and payment
would not either reduce the amount on which the Employee is subject to tax
under Code Section 1, 3101 or 4999 or generate a refund of such taxes.  If the Employer, based upon controlling
precedent or other substantial authority, determines that an Underpayment has
occurred, the Employer must pay the amount of the Underpayment to the
Employee.  For purposes of this Section,
(i) “Net After Tax Receipt” means the Present Value of a payment under this Plan
net of all taxes imposed on the Employee with respect thereto under Code
Sections 1, 3101 and 4999, determined by applying the highest marginal rate
under Code Section 1 which applies to the Employee’s taxable income for the
applicable taxable year; (ii) “Present Value” means the value determined in
accordance with Code Section 280G(d)(4) and (iii) “Reduced Amount” means the
largest aggregate amount of all payments and benefits under this Plan which (a)
is less than the 



 17
 









sum of all payments and benefits under this Plan and
(b) results in aggregate Net After Tax Receipts which are equal to or greater
than the Net After Tax Receipts which would result if the aggregate payments
and benefits under this Plan were any other amount less than the sum of all payments
and benefits to be made under this Plan.


17.                                 Miscellaneous.


(a)           The failure of the
Employer or an Affiliate to enforce any provisions of the Plan shall in no way
be construed to be a waiver of those provisions, nor in any way effect the
validity of the Plan or any part thereof, or the right of the Employer or an
Affiliate thereafter to enforce such provision.


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


(c)           Whenever any
benefits become payable under the Plan, the Employer and its Affiliates shall
have the right to withhold such amounts as are sufficient to satisfy any
applicable federal, state or local withholding, tax, excise tax or similar
requirements.


(d)           The terms of an
Employee’s benefits are as set forth in this document, which cannot be changed
by the promises of any individual employee or manager.  Only the Employer may change the terms of the
Plan, and then only through a written amendment.  No promises (oral or written) that are
contrary to the terms of the Plan and its written amendments are binding upon
the Plan or the Employer.


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


(f)            Benefits under 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)           This Plan is
intended to comply with the applicable requirements of Section 409A of the Code
and shall be construed and interpreted in accordance therewith.  The Employer may at any time amend, suspend
or terminate this Plan, or any payments to be made hereunder, as necessary to
be in compliance with Section 409A. 
Notwithstanding the preceding, the Employer and all Affiliates shall not
be liable to any Employee or any other person if the Internal Revenue Service
or any court or other authority having jurisdiction over such matter determines
for any reason that any amount under this Plan is subject to taxes, penalties
or interest as a result of failing to comply with Code Section 409A.


 



 18















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


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


	
  

  	
  EARTHLINK, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 



 19















 


EARTHLINK, INC.


CHANGE-IN-CONTROL ACCELERATED VESTING AND SEVERANCE PLAN


SUMMARY PLAN DESCRIPTION


 


NAME OF PLAN:


EarthLink, Inc. Change-in-Control Accelerated Vesting
and Severance Plan


NAME, ADDRESS, AND TELEPHONE
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 administers the Plan.


EMPLOYER IDENTIFICATION NUMBER:


58-2511877


PLAN NUMBER ASSIGNED TO THIS PLAN:


501


ORIGINAL EFFECTIVE DATE:


April 19, 2001


PLAN YEAR:


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


FISCAL YEAR FOR MAINTAINING PLAN RECORDS:


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


TYPE OF WELFARE PLAN:


The Plan is a severance pay plan that provides
benefits to certain Employees in the event of termination of their employment
due to certain specified reasons.


TYPE OF ADMINISTRATION OF THE PLAN:


The Employer administers the Plan as described in
Section 7.













 


PROVISIONS FOR ELIGIBILITY REQUIREMENTS:


The Plan generally describes eligibility requirements
in Sections 2 and 3.


DESCRIPTION OF PLAN BENEFITS:


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


SOURCES OF CONTRIBUTIONS TO THE PLAN AND FUNDING
MEDIUM:


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


PROCEDURES FOR PRESENTING CLAIMS AND REDRESS OF DENIED
CLAIMS:


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


AGENT FOR SERVICE OF PROCESS:


EarthLink, Inc.


1375 Peachtree Street,
N.W.


Suite 7 North


Atlanta, Georgia
30309-2935


Attention: Executive Vice
President, Employee Services


 


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


 



 2















YOUR RIGHTS UNDER ERISA


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


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


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


Obtain, upon written request to the Employer, copies
of all Plan documents governing the operation of the Plan and copies of the
latest Annual Report (Form 5500 series) and an updated summary plan
description.  The Employer may make a reasonable
charge for the copies.


Receive a summary of the Plan’s annual financial
report.  The Employer is required by law
to 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 of
the Plan.  The people who operate your
Plan, called fiduciaries, have a duty to do so prudently and in the interest of
you and other Plan participants.  No one,
including your employer or any other person, may fire you or otherwise
discriminate against you in any way solely in order to prevent you from
obtaining a benefit or exercising your rights under ERISA.  If your claim for a benefit is denied, in
whole or in part, you must receive a written explanation of the reason for the
denial.  You have the right to have the
Plan review and reconsider your claim. 
Under ERISA, there are steps you can take to enforce the above rights.  For instance, if you request materials from
the Plan and do not receive them within 30 days, you may file suit 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 sent because of
reasons beyond the control of the Employer. 
If you have a claim for benefits which is denied or ignored, in whole or
in part, you may file suit in a state or federal court.  If it should happen that Plan fiduciaries
misuse the Plan’s money, or if you are discriminated against for asserting your
rights, you may file suit in a federal court. 
The court will decide who should pay court costs and legal fees.  If you are successful, the court may order
the person you have sued to pay these costs and fees.  If you lose, the court may order you to pay
these costs and fees.  If you have any
questions about your Plan, you should contact the Employer.  If you have any questions about this
statement or about your rights under ERISA, you should contact the nearest
office of the Pension and Welfare Benefits Administration, U.S. Department of
Labor, listed in your telephone directory or the Division of Technical
Assistance and Inquiries, Pension and Welfare Benefits Administration, U.S.
Department of Labor, 200 Constitution Avenue, N.W.,













Washington, D.C. 20210.  You may also obtain certain publications
about your rights and responsibilities under ERISA by calling the publications
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 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.

  	
  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 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