Exhibit 10.30


 


EARTHLINK, INC.


 


EXECUTIVES’ POSITION ELIMINATION


 


AND SEVERANCE PLAN


 


AND SUMMARY PLAN DESCRIPTION


 


(As Amended and Restated Effective as of December 15,
2008)


 

















 


EarthLink, Inc.

Executives’ Position Elimination And Severance Plan

(As Amended And Restated Effective As Of December 15, 2008)


 


EarthLink, Inc.
(the “Company”) adopted the EarthLink, Inc. Executives’ Position
Elimination and Severance Plan (the “Plan”), effective as of October 21,
2002, to provide eligible employees with severance pay and benefits in the
event their positions with the Company are eliminated.  The Company amended and restated the Plan
effective as of December 1, 2003, April 22, 2005 and February 17,
2006.  The Company hereby amends and
restates the Plan, as set forth herein, effective as of December 15,
2008.  The Company and its Affiliates
have the responsibility of maintaining business practices that are within the
bounds of local, state and federal laws, applying the same practices
consistently to all employees and treating individuals with dignity, respect,
fairness and compassion.


 


The Plan is an
unfunded welfare benefit plan for purposes of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”) and a severance pay plan within the
meaning of United States Department of Labor Regulations Section 2510.3-2(b).  This document serves as both the Plan
document and the summary plan description for the Plan.  The Plan supersedes any prior EarthLink
severance plans, programs or policies covering employees eligible under this
Plan, both formal and informal, other than those plans, programs or policies
the terms of which specifically provide that they cannot be superseded or
terminated.


 


Eligible Employees


 


The Plan
applies to regular employees of the Company and its Affiliates who are employed
in positions at the Vice President Level or the Executive Level of the Career
Band System and whose positions with the Company and its Affiliates are
eliminated, except as otherwise provided herein.  If an employee regularly works less than
forty (40) hours per week, benefits under the Plan will be prorated according
to the employee’s established workweek. 
Independent contractors, consultants, individuals performing services
through an independent contractor, consulting or similar agreement, leased
employees and temporary employees are not eligible for benefits under the Plan.


 


Conditions of Ineligibility


 


An otherwise
eligible employee shall not be eligible for severance pay under the Plan if:


 


·              the
employee ceases to be an eligible employee as described above, other than as a
result of a position elimination;


 


·              the
employee is involuntarily terminated for reasons other than a position
elimination;


 


·              the
employee retires, resigns, quits, dies, becomes disabled or abandons his or her
position;


 

















 


·              the
employee accepts another position with the Company or with an Affiliate of the
Company (“Affiliate” means any entity with whom the Company would be considered
a single employer under Sections 414(b) or 414(c) of the Internal Revenue Code
of 1986, as amended (the “Code”));


 


·              the
employee is offered another position within the Company or an Affiliate, with
the same or a higher level of salary or wages, at the employee’s current
location of employment or at another location within fifty (50) miles of the
employee’s current location of employment;


 


·              the
employee is assigned to any part of the Company’s or an Affiliate’s business
that is sold or otherwise transferred to a different company, whether or not
the employee retains his or her job with such other company;


 


·              the
termination of the employee’s employment entitles the employee to benefits
under any employment agreement, severance agreement or other termination or
separation agreement between the employee and the Company or an Affiliate;


 


·              the
termination of the employee’s employment entitles the employee to benefits
under the EarthLink, Inc. Position Elimination and Severance Plan for
Eligible Employees Continuously Employed Since December 31, 2007, the
EarthLink, Inc. Position Elimination and Severance Plan for Eligible
Employees Whose Current Employment Started on or after January 1, 2008,
the EarthLink, Inc. Change-in-Control Accelerated Vesting and Severance
Plan, the EarthLink Network, Inc. Key Employee Compensation Continuation
Plan, the EarthLink Accelerated Vesting and Compensation Continuation Plan, or
any other similar severance or compensation continuation plan of the Company,
its Affiliates or any of their predecessors; or


 


·              the
Plan is terminated.


 


Position Elimination


 


From time to
time, individual Business Divisions within the Company will identify positions
to be eliminated, and the employees in those positions, and will provide this
information to Human Resources (“HR”).


 


The Business
Divisions will provide HR with the reasons for the elimination of the
position.  HR will document the business
reasons for the position elimination. 
The Company is committed to the practice of non-discrimination.


 


Position Elimination Categories


 


When a
position is eliminated there are four potential scenarios for the eligible
employee.


 


I.                                       The employee’s
current position is eliminated and the employee is offered another position
with the Company or an Affiliate with the same or a higher level salary or
wages at the employee’s current location of employment, or at another location
within fifty (50) 


 


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miles of the employee’s current location of
employment.  If the employee accepts the
new position, the employee’s employment relationship with the Company or an
Affiliate continues.  If the employee
declines the position offered, the employee will not be entitled to any
severance pay or benefits under the Plan.


 


II.                                   The employee’s
current position is eliminated and the employee is offered another position
with the Company or an Affiliate with lower salary or wages at the same or
another location of employment.  The
employee will have the option of accepting the new position or taking the
severance package.  If the employee
accepts the new position, the employee’s employment relationship with the
Company or an Affiliate continues.  If
the employee declines the offered position, the employee will be given the
severance package as stated below.


 


III.                               The employee’s current
position is eliminated and the employee is offered another position with the
Company or an Affiliate with the same or a higher salary or wages at another
location that is fifty (50) or more miles from the employee’s current location
of employment.  The employee will have
the option of accepting the new position or taking the severance package.  If the employee accepts the new position, the
employee’s employment relationship with the Company or an Affiliate
continues.  If the new position entitles
the employee to relocation benefits under the Company’s Corporate Relocation
Policy, the employee will be offered the Corporate Relocation Package.  The expense of the relocation will be paid by
the employee’s new department.  If the
employee declines the offered position, the employee will be given the
severance package as stated below.


 


IV.                               The employee’s current
position is eliminated and no other position is offered.  In this case, the employee will be given the
severance package as stated below.


 


Severance Pay and Benefits


 


In exchange
for providing the Company with an enforceable Waiver and Release Agreement in a
form acceptable to the Company, and for not later revoking that Waiver and
Release Agreement, each eligible employee shall be entitled to receive
severance pay and benefits, as stated below. 
Please note that the severance pay described below will be prorated for
those eligible employees who work a regular schedule of less than forty (40) hours
per week.


 


I.                                         Employees
Whose Positions are at the Vice President Level of the Career Band System.  After the notice period, eligible employees
will receive the following severance pay and benefits:


 


·              Six
(6) months base salary paid in a lump sum as soon as administratively
practicable following the termination of employee’s employment with the Company
and all Affiliates but no later than the 15th day of the third
month of the calendar year following the calendar year in which the employee’s
right to the payment vests.  Base salary
excludes overtime, incentive compensation, bonuses, and any other forms of
compensation over and above the employee’s base salary rate.


 


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·              For
employees eligible and participating in the Company’s medical, dental, and
vision plans, the Company will pay to eligible employees an amount equal to the
employer portion of active employees’ premiums for those plans, plus the two
percent COBRA administration fee, for four (4) months of COBRA benefits
coverage.  The Company will make this
payment in a single lump sum as soon as administratively practicable following
termination of the employee’s employment but no later than the 15th day of the third month of the calendar year
following the calendar year in which the employee’s right to the payment
vests.  The Company shall withhold or
obtain payment for applicable income and employment taxes from any payments for
COBRA benefits.  Ex-employees may continue
COBRA for the COBRA eligibility period by paying 100 percent of the COBRA
premium.


 


·              Six
(6) months of outplacement services provided by a vendor selected by the
Company, with a value of up to $4,800, beginning immediately following the
termination of employee’s employment with the Company and all Affiliates.  No cash payment is available in lieu of the
outplacement services.


 


·              Employees
given notice that their positions are being eliminated after the first quarter
but prior to July 1st of any calendar year will be paid the pro-rata
bonus, if any, otherwise payable under the EarthLink Employee Bonus Plan based
on regular earnings and management’s estimate of the year-end bonus
payout.  This payment will be calculated
at the time of and paid with the lump sum severance payment described
above.  Employees given notice that their
positions are being eliminated after July 1 of any calendar year will be
eligible for the pro-rata bonus, if any, otherwise payable under the EarthLink
Employee Bonus Plan, based on regular earnings for that year and actual
business results, payable at the normal time of the bonus payout; provided,
however, that such pro-rata bonus will be paid no later than the 15th day of the third month of the calendar year
following the calendar year in which the employee’s right to such pro-rata
bonus vests.  Severance pay is not
considered regular earnings.  Employees
given notice that their positions are being eliminated during the first quarter
of any calendar year will not be eligible for any bonus otherwise payable under
the EarthLink Employee Bonus Plan for that year.


 


II.                                     Employees Whose
Positions are at the Executive Level of the Career Band System.  Eligible employees whose positions are at the
Executive Level of the Career Band System will receive, after the notice
period, the following severance pay and benefits:


 


·              Twelve
(12) months base salary paid in a lump sum as soon as administratively
practicable following the termination of employee’s employment with the Company
and all Affiliates but no later than the 15th day of the third
month of the calendar year following the calendar year in which the employee’s
right to the payment vests.  Base salary
excludes overtime, incentive compensation, bonuses, and any other forms of
compensation over and above the employee’s base salary rate.


 


·              For
employees eligible and participating in the Company’s medical, dental and
vision plans, the Company will pay to the eligible employees an amount equal to
the 


 


4

















 


employer portion of the employees’ premiums
for those plans, plus the two percent COBRA administration fee, for four (4) months
of COBRA benefits coverage.  The Company
will make this payment in a single lump sum as soon as administratively
practicable following termination of the employee’s employment but no later
than the 15th day of the third month of the calendar year
following the calendar year in which the employee’s right to the payment
vests.  The Company shall withhold or
obtain payment for applicable income and employment taxes from any payments for
COBRA benefits.  Ex-employees may
continue COBRA for the COBRA eligibility period by paying 100 percent of the
COBRA premium.


 


·              Twelve
(12) months of executive-level outplacement services provided by a vendor
selected by the Company with a value of up to $6,800, beginning immediately
following the termination of employee’s employment with the Company and all
Affiliates.  No cash payment is available
in lieu of the outplacement services.


 


·              Employees
given notice that their positions are being eliminated after the first quarter
of any calendar year will be eligible for the pro-rata bonus, if any, otherwise
payable under the EarthLink Executive Bonus Plan, based on regular earnings for
that year and actual business results, payable at the normal time of the bonus
payout; provided, however, that such pro-rata bonus will be paid no later than
the 15th day of the third month of the calendar year
following the calendar year in which the employee’s right to such pro-rata
bonus vests.  Severance pay is not
considered regular earnings.  Employees
given notice that their positions are being eliminated during the first quarter
of any calendar year will not be eligible for any bonus otherwise payable under
the EarthLink Executive Bonus Plan for that year.


 


The
consideration for the voluntary Waiver and Release Agreement shall be the
severance pay and benefits provided under this Plan that the eligible employee
would otherwise not be eligible to receive.


 


The Company
may, in its sole discretion, enhance the amount of severance pay that an
eligible employee is entitled to receive under this Plan in addition to the
amount of severance described above or make available additional or other forms
of severance benefits hereunder. 
Furthermore, the Company or an Affiliate may, in its sole discretion,
award severance pay to an employee who is not otherwise eligible to receive it
under this Plan provided the employee is not otherwise entitled to any
severance or similar benefits under any employment agreement, severance
agreement or other termination or severance agreement or under any other
severance or compensation continuation plan of the Company or any of its
Affiliates.  To the extent the Company in
its sole discretion enhances the amount of severance pay or provides any
additional forms of severance benefits under this Plan, such enhanced severance
pay and additional forms of severance benefits shall be provided under the Plan
and pursuant to the terms and other conditions hereof.  Notwithstanding the foregoing, however, no
other severance or other benefits provided an employee shall be deemed enhanced
severance pay or additional or other forms of severance benefits provided under
this Plan unless such other arrangements specifically reference that they are
being provided under this Plan.  All
legally required federal, state and 


 


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local
withholding taxes and any sums owing to the Company shall be deducted from
severance pay and benefits due under this Plan.


 


Delay in Payment for Specified Employees


 


Notwithstanding
any other provision of this Plan, if an otherwise eligible employee is a
Specified Employee (as defined below), and if the severance package payable to
such Specified Employee hereunder is not otherwise exempt from Section 409A
of the Code, then, to the extent necessary to comply with Section 409A, no
payments may be made hereunder (including, if necessary, any payments for COBRA
benefits) before the date which is six months after the Specified Employee’s
separation from service 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 will be paid in all
events by the 15th day of the third month following the end of the calendar
year in which employee’s right to the payments vest, all amounts payable
hereunder 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.


 


For purposes
of this Plan, “Specified Employee” means an employee who is (i) an officer
of the Company having annual compensation greater than $135,000 (with certain
adjustments for inflation after 2005), (ii) a five-percent owner of the
Company or (iii) a one-percent owner of the Company 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 Company (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 Company or
stock possessing more than five percent (one percent) of the total combined
voting power of all stock of the Company. 
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.


 


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Compliance with Code Section 409A


 


This Plan is intended
to be exempt from the applicable requirements of Section 409A of the Code
and shall be construed and interpreted in accordance therewith.  All rights to the payments and benefits under
the Plan shall be treated as rights to receive a series of separate payments
and benefits to the fullest extent permitted by Section 409A of the
Code.  The Company may at any time amend,
suspend or terminate this Plan, or any payments to be made hereunder, as
necessary to maintain such exemption or be in compliance with Section 409A.  Notwithstanding the preceding, the Company
and its 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.


 


Reemployment and Death


 


In the event a
former employee receiving severance pay or benefits under the Plan is subsequently
rehired by the Company or hired by an Affiliate, the employee shall not be
required to repay any severance pay or benefits previously received under the
Plan and shall still be entitled to receive the payment of any pro-rata bonus
payable under the Plan; provided, however, that payment of such prorated bonus
under the Plan shall be reduced (but not below zero) to the extent the rehired
employee is entitled to receive all or any portion of such bonus after rehire
under the EarthLink Employee Bonus Plan or the hired employee is entitled to
receive all or any portion of a similar bonus alternative by an Affiliate;
there being no intent to provide duplicate payments to such employee with
respect to such bonus.  However, such
employee will not be entitled to receive under this Plan any severance pay or
benefits not yet paid.  In the event a
former employee receiving severance pay or benefits under the Plan is offered
and rejects another position with the Company or an Affiliate, all unpaid
severance pay and benefits shall continue. 
In the event a former employee receiving severance pay or benefits under
the Plan dies, all unpaid severance pay and benefits shall continue and shall
be paid to the employee’s designated beneficiary or estate.


 


Waiver and Release Agreement


 


In order to
receive the severance pay and benefits available under the Plan, an eligible
employee must submit a signed Waiver and Release Agreement, in a form
acceptable to the Company, to the Plan Administrator on or within 21 days (45
days in the event of a group termination) after the employee’s date of
termination of employment, but not prior to the date of termination of
employment.


 


An eligible
employee may revoke a signed Waiver and Release Agreement within seven (7) days
of signing the Waiver and Release Agreement. 
Any such revocation must be made in writing and must be received by the
Plan Administrator within such seven (7) day period.  An eligible employee who timely revokes the
Waiver and Release Agreement shall not be eligible to receive severance pay or
benefits under the Plan.  An eligible
employee who timely submits a signed Waiver and Release Agreement and who does
not exercise the right of revocation shall be


 


7














 


eligible to
receive severance pay and benefits under the Plan only after the applicable
period for revoking such Waiver and Release Agreement has expired.


 


Eligible
employees are advised to contact their personal attorneys at their own expense
to review the Waiver and Release Agreement if they so desire.


 


No Duplicate Payments


 


The severance
pay and benefits available under the Plan are the maximum to which an employee
is entitled from the Company and its Affiliates in the event of involuntary
termination of employment.  The Company
or an Affiliate and an eligible employee may be parties to other agreements,
policies, plans, programs or arrangements relating to the employee’s employment
which do not specifically disqualify the employee from participation in this
Plan.  In such an event, this Plan shall
be construed and interpreted so that severance pay and benefits are provided
under this Plan only to the extent that similar amounts of severance and
benefits are not paid or provided to such employee under any other agreements,
policies, plans, programs or arrangements; it being the intent of this Plan not
to provide to the employee any duplicative payments of severance pay or other
benefits.  The Company or Affiliate, as
applicable, in its sole discretion, shall determine whether payments or other
benefits to the employee under any other such agreements, policies, plans,
programs or arrangements shall constitute duplicative payments of severance pay
or benefits hereunder.  In the event the
Company or Affiliate determines that payments or other benefits to the employee
under any other such agreements, policies, plans, programs or arrangements
constitute duplicative payments, the severance pay or benefits otherwise
payable under this Plan shall be reduced to the extent of such duplicative
payments.


 


To the extent
that a federal, state or local law requires the Company or Affiliate to provide
notice and/or make a payment to an eligible employee because of involuntary
termination of employment, or in accordance with a plant closing law, such as
the WARN Act, the severance pay and benefits available under the Plan for
periods for which the employee is not required to report to work shall be
reduced by the amount of any such mandated payment.


 


Confidentiality


 


The terms and
conditions of this Plan and the employees’ severance pay and 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. 
In the event employee or employee’s attorneys, accountants or immediate
family members breach the terms of this provision, employee shall forfeit any
and all rights to receive the severance pay and benefits under the Plan and
shall be required to return the aggregate amount of severance pay and benefits
received previously under the Plan.


 


Confidential Information/Cooperation


 


In order to
receive severance pay and benefits under the Plan, eligible employees shall be
required to confirm in the Waiver and Release Agreement the terms of their
Employee Confidentiality and Invention Assignment Agreement or other employee confidentiality



 


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agreement(s) with
the Company or Affiliate and, at the Company’s or Affiliate’s discretion, to
agree in the Waiver and Release Agreement to such other terms relating to the
protection and return of the Company’s or Affiliate’s confidential and
proprietary business information and other Company or Affiliate property as the
Company or Affiliate deems appropriate.


 


After an
employee’s termination of employment with the Company and its Affiliates, he or
she shall, with reasonable notice, furnish information as may be in his or her
possession, control or knowledge and to otherwise cooperate with and assist the
Company or Affiliate as reasonably may be requested in connection with any
claims or legal actions in which the Company or Affiliate is or may become a
party, or in any matter in which he or she was involved or of which he or she
had knowledge while employed by the Company or Affiliate.  No employee shall be entitled to any
compensation for such cooperation except for reimbursement by the Company or
Affiliate for his or her actual out-of-pocket expenses or costs incurred with
this cooperation as soon as administratively practicable after the expenses are
incurred.


 


Return of Company Property


 


Upon
termination of employment, employees shall return to the Company or Affiliate
all property of the Company or Affiliate in their possession, custody or
control, including keys, credit cards, identification cards, laptop computers,
Personal Digital Assistants (PDAs), car and mobile telephones, pagers, parking
stickers, correspondence, notes, memoranda, reports, manuals, notebooks,
drawings, sketches, blueprints, formulae, prototypes, models, computer disks,
computer printouts, information stored electronically on computers, and the
trade secrets and other confidential information of the Company or
Affiliate.  Employees shall not make any
copies, nor shall they retain any originals or copies of such property.


 


Plan Administration


 


The Company
shall act as the Plan Administrator of the Plan (or shall have the power to
appoint a Plan Administrator of the Plan) and the “named fiduciary” within the
meaning of such terms as defined in ERISA. 
It shall be the principal duty of the Plan Administrator to see that the
Plan is carried out, in accordance with its terms, and operated uniformly for
similarly situated individuals.


 


Authority of Plan Administrator


 


The Plan
Administrator shall have sole discretionary power to administer the Plan,
subject to applicable requirements of law. 
The Plan Administrator shall have the authority to interpret the Plan
and to determine all questions arising under or in connection with the Plan,
including all questions of fact and questions of eligibility to participate and
obtain benefits under the Plan.  The Plan
Administrator shall pay benefits under the Plan, in accordance with its terms,
but only if it determines in its sole discretion that the claimant is entitled
to them.


 


The Plan
Administrator may delegate to other persons responsibilities for performing
certain of the duties of the Plan Administrator under the Plan and may seek
expert advice as the Plan Administrator deems reasonably necessary with respect
to the Plan.  The Plan Administrator 


 


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shall be
entitled to rely upon the information and advice furnished by such persons and
experts, unless actually knowing such information and advice to be inaccurate
or unlawful.


 


All actions
and determinations of the Plan Administrator shall be final, binding and
conclusive on all parties.  As permitted
by law, the Company will indemnify and save the Plan Administrator’s designees
harmless against expenses, claims and liabilities arising out of his or their
actions on behalf of the Company in connection with the administration of the
Plan, except expenses, claims and liabilities arising out of such person’s own
gross negligence or bad faith or for which applicable law does not permit such
indemnification.


 


Claim Procedures


 


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
Plan Administrator 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 ninety (90) 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 ninety (90)-day period shall bar the employee
from any claim for benefits under the Plan as a result of the occurrence of
such event.


 


Claims for
benefits shall be filed in writing with the Plan Administrator.  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 Plan Administrator
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 Plan Administrator expects to render its final decision.  However, that extension may not exceed ninety
(90) days after the end of the initial period. 
If the Plan Administrator 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.


 


The Plan
Administrator shall provide payment for the claim only if the Plan
Administrator determines, in its sole discretion, that the claimant is entitled
to the claimed benefit.


 


If any part of
a claim for benefits under this Plan is denied, the Plan Administrator 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.


 


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


 


Appeal Procedures


 


If a claim is
denied, the claimant may appeal the denial by delivering a written notice to
the Plan Administrator 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 Plan Administrator’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.


 


The Plan
Administrator 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 Plan Administrator 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 Plan Administrator 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.


 


If the Plan
Administrator 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 Plan Administrator shall instead make a benefit
determination no later than the date of the meeting of the Plan Administrator
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 Plan Administrator 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 Plan Administrator 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 Plan Administrator
will notify the claimant of the 


 


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benefit
determination as soon as possible, but not later than five days after the
benefit determination is made.


 


In no event
shall an employee or other claimant be entitled to challenge a decision of the
Plan Administrator 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 shall have
ninety (90) days from the date of receipt of the Plan Administrator’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 participants,
employees and any other party.


 


Amendment / Termination / No
Vesting


 


Eligible employees
do not have any vested right to severance pay and benefits under the Plan.  The Company reserves the right, in its sole
discretion, to amend or terminate the Plan at any time by written action of its
Chief Executive Officer, Chief Financial Officer or Chief People Officer or any
of their designees or by such other action as the Company may determine.


 


No Representations Contrary to
the Plan


 


The terms of
an employee’s severance pay and benefits are as set forth in this document,
which cannot be changed by the promises of any individual employee or
manager.  Only the Company 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, the Plan Administrator or the Company or any of its Affiliates.


 


Plan Funding


 


The Plan is
funded entirely through Company payments from its operating assets.  Severance pay and benefits are not held under
any trust, are paid from the general assets of the Company, are unsecured, and
are subject to the claims of the Company’s general creditors.  The rights of eligible employees are no
greater than those of an unsecured general creditor of the Company.


 


Coordination With Other Benefits


 


Severance pay
and benefits under the Plan are not considered eligible earnings for the
Company’s 401(k) Plan or any other benefit program.


 


Restriction Against Assignment


 


Severance pay
and benefits under the Plan may not be assigned, pledged or encumbered in any
manner, and any attempt to do so shall be void. 
The Company and its Affiliates shall make deductions from Plan severance
payments to the extent required by court-ordered garnishment, wage assignment
or similar law.


 


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Controlling Law


 


Except to the
extent superseded by laws of the United States, the laws of the State of
Delaware shall be controlling in all matters relating to the Plan.


 


Reemployment Other Than As An
Employee


 


The Company or
Affiliate may, in its sole discretion, determine how an employee whose position
is eliminated but who is offered another position as an independent contractor
or consultant with the Company or with an Affiliate shall be treated for
purposes of the Plan.  In that respect,
the Company or Affiliate, in its sole discretion, may make all such
determinations under the Plan, including without limitation, determining (i) whether
a regular employee whose position has been eliminated but who is rehired as an
independent contractor or consultant is an eligible employee, (ii) whether
an otherwise eligible employee will be eligible for severance pay if the
employee is retained, or hired by the Company or an Affiliate, as an
independent contractor or consultant under any agreement that provides for
severance or similar benefits on termination of service, (iii) whether an
employee whose position has been eliminated but who is offered work by the
Company or an Affiliate as an independent contractor or consultant qualifies
for severance pay and benefits under any of the position elimination categories
set forth under the Plan, and (iv) whether any employee whose position is
eliminated is deemed to be re-employed to the extent the employee is retained,
or hired by the Company or an Affiliate, as an independent contractor or
consultant.  Notwithstanding the
foregoing, an eligible employee will not be given a severance package under the
Plan if the eligible employee continues to provide services to the Company or
any of its Affiliates in a capacity other than as an eligible employee 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 thirty-six (36)
months of employment (or, if employed less than thirty-six (36) months, such
lesser period).


 


Temporary Leave of Absence


 


An eligible
employee will not be considered to have had a termination of employment and
will not be entitled to the severance pay and benefits under this Plan if the
otherwise eligible employee goes on military leave, sick leave or other bona
fide leave of absence (such as temporary employment by the government) for a
period of less than six months, or for a longer period if the employee’s right
to reemployment is provided either by statute or by contract; provided,
however, if the eligible employee otherwise meets the requirements for
receiving severance pay and benefits under this Plan and 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, then the eligible employee
will be considered to have had a termination of employment and will be entitled
to the severance pay and benefits as of the first date immediately following
such time if the eligible employee otherwise would be entitled to such benefits
if the eligible employee terminated employment as of such time.


 


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General Plan Information


 


Plan Name


 


EarthLink, Inc.
Executives’ Position Elimination and Severance Plan (As Amended and Restated
Effective as of December 15, 2008)


 


Plan Sponsor


 


EarthLink, Inc.


1375 Peachtree Street


Atlanta, GA 30309


(404) 815-0770


 


Employer Identification Number
(BIN


 


58-2511877


 


Plan Number


 


506


 


Plan Type


 


The Plan is a
welfare benefit plan that pays severance benefits.


 


Plan Administrator


 


Plan
Administrator, EarthLink, Inc. Executives’ Position Elimination and
Severance Plan


 


c/o EarthLink, Inc.


1375 Peachtree Street


Atlanta, GA 30309


(404) 815-0770


 


Agent for Service of Legal
Process


 


c/o EarthLink, Inc.


Chief People Officer


1375 Peachtree Street


Atlanta, GA 30309


(404) 815-0770


 


Plan Year


 


The calendar
year.


 


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ERISA Rights Statement


 


As participant
in this Plan, you are entitled to certain rights and protections under
ERISA.  ERISA provides that all Plan
participants shall be entitled to:


 


·              examine,
without charge at the Plan Administrator’s office and at other specified
locations, such as worksites and union halls, all documents governing the Plan,
including collective bargaining agreements, and a copy of the latest Annual
Report (Form 5500 series), if any, filed by the Plan with the U.S.
Department of Labor and available at the Public Disclosure Room of the
Employee Benefits Security Administration (f/k/a the Pension Welfare Benefits
Administration).


 


·              obtain
copies of all documents governing the operation of the Plan including
collective bargaining agreements and copies of the latest Annual Report (Form 5500
series), if any, and an updated summary plan description, by making a written
request to the Plan Administrator and paying a reasonable charge for the
copies.


 


·              receive
a summary of the Plan’s annual financial report.  The Plan Administrator is required by law to
furnish each participant under the Plan 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 the Plan, called “fiduciaries” of the Plan, have
a duty to do so prudently and in your interest and in the interest of the other
Plan participants and beneficiaries.


 


No one,
including your employer, your union, or any other person may fire you or
otherwise discriminate against you, in any way solely to prevent you from
getting a benefit or exercising your rights under ERISA.  If your claim for a benefit is denied or
ignored, in whole or in part, you have a right to know why this was done, to
obtain copies of documents relating to the decision without charge, and to
appeal any denial, all within certain time schedules.


 


Under ERISA,
there are steps you can take to enforce the above rights.  For instance, if you request a copy of Plan
documents or the latest Annual Report from the Plan and do not receive them
within thirty (30) days, you may file suit in federal court.  In such a case, the court may require the
Plan Administrator to provide the documents and pay you up to $110 a day until
you receive them, unless they were not sent because of reasons beyond the
control of the Plan Administrator.


 


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 seek
assistance from the U.S. Department of Labor or you may file suit in a federal
court.  The court will decide who should
pay court costs and legal fees.  If your
suit is successful, the court may order the person you have sued to pay costs
and fees.  If you lose, the court may
order you to pay these costs and fees, for example, if it finds your claim is
frivolous.


 


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If you have
any questions about the Plan, you should contact the Plan Administrator.  If you have any questions about your rights
under ERISA, or if you need assistance in obtaining documents from the Plan
Administrator, you should contact the nearest office of the Employee Benefits
Security Administration, U.S. Department of Labor listed in your telephone
directory or the Division of Technical Assistance and Inquiries, Employee
Benefits Security 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 Employee Benefits Security
Administration.


 


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