Exhibit 10.29


 


 


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, amended effective as of
October 19, 2005 and amended and restated effective as of February 17,
2006. The Employer hereby amends and restates the Plan, as set forth herein,
effective as of December 15, 2008 to address Section 409A of the Code
and the final regulations issued thereunder.


 


WITNESSETH:


 


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


 


WHEREAS, Employer and its Affiliates established 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
amend and restate 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) (except that, for purposes of
determining whether a Termination of Employment has occurred, the language “at
least 50%” shall be substituted for “at least 80%” each place it appears
therein).


 


(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 and any
other officer of the Employer or any Affiliate whose position is designated by
the Employer through its Board of Directors as an executive officer and
included within the Silver Benefit Category; and the Bronze Benefit Category
shall include the Vice Presidents Classified Jobs of the Employer or any
Affiliate.  Notwithstanding the
foregoing, the Chief Executive Officer, President and Chief Financial Officer of
any Affiliate shall be included in the Silver Benefit Category provided the
position was included in the Silver Benefit Category prior to May 8, 2008
and Director Band Jobs of the Employer or any Affiliate shall be included in
the Bronze Benefit Category provided the position was in the Blue Zone Band and
included in the Bronze Benefit Category prior to May 8, 2008, provided in
either case only with respect to an Employee who received prior to May 8,
2008 a notice of eligibility to participate in the Plan.  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 


 


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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 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 


 


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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 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 immediately
prior to May 8, 2008, and have been continuously employed since that time,
participate in the Plan as of such May 8, 2008 date, subject to compliance
with the other terms and conditions of the Plan.  All full-time common-law employees of 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 on and
after May 8, 2008 (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 


 


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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 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


 


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(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


 


(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.


 


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(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 and any other officer of the Employer or any
Affiliate who is designated by the Employer through its Board of Directors as
an executive officer and being in a Qualifying Position; (3) the Vice
Presidents Classified Jobs of the Employer or any Affiliate; (4) Director
Band Jobs of the Employer or any Affiliate that were banded in the Blue Zone
Band and the Chief Executive Officer, President and Chief Financial Officer of
any Affiliate, provided in either case only with respect to an Employee in a
Qualifying Position prior to May 8, 2008 and who received a prior notice
of eligibility to participate in the Plan, and (5) 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 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 


 


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be considered as having had a Termination of
Employment if (i) the Employee continues to provide services to the
Employer or any Affiliate (whether as an employee or as an independent
contractor) at an annual rate that is more than 20 percent of the level of
services rendered, on average, during the immediately preceding 36 months of
employment (or, if employed less than 36 months, such lesser period) or (ii) the
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, Termination of Employment shall be construed consistent with
the requirements for a “separation from service” within the meaning of Section 409A
of the Code.


 


(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 (and within 30 days) after
the Employee’s Termination of Employment, subject to any required delays under
Sections 2(a)(4) or 4 below.


 


(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, no less frequently than monthly, in such manner as to permit
Employee to continue his or her COBRA coverage on a timely basis; provided that
the Company will make all such payments as soon as administratively
practicable, subject to any required delays under Sections 2(a)(4) or 4
below.


 


(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 


 


8

















 


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.


 


(4)           Notwithstanding any other provision
of this Plan, however, if the Employee is a Specified Employee on Termination
of Employment 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 or, if earlier,
the date of death of the Specified Employee. 
In the event any such payments are otherwise due to be made in
installments or periodically prior to the earlier of six months after the
Specified Employee’s Termination of Employment or, if earlier, the date of
death of the Specified Employee, the payments which would otherwise have been
made shall be accumulated and paid in a lump sum as soon as such period ends,
and the balance of the payments shall be made as otherwise scheduled.  In the event any benefits are required to be
deferred hereunder, any such benefits may be provided during such deferral
period at Employee’s expense, with Employee to be reimbursed from the Employer
once the deferral period ends, and the balance of the benefits shall be
provided as otherwise scheduled.


 


(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 (no less frequently than monthly and consistent with
Employer’s customary payroll practices), 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 Affiliate that
employs the Employee on his or her Termination 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.


 


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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 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 


 


10

















 


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 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 


 


11

















 


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 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 


 


12

















 


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 on or within
21 days, (45 days in the event of a group termination) after the Employee’s
Termination of Employment, but not prior to such Termination of
Employment.  Each Employee’s right to
participate under this Plan and to receive benefits hereunder (including the
benefits described in Section 3 of the Plan) is contingent upon the
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.  Notwithstanding any other provision of this
Plan, no payments shall be made or benefits provided pursuant to this Plan
during the first 30 days (60 days in the event of a group termination) after
the Employee’s Termination of Employment and any payments or benefits that are
to be provided in that period shall be accumulated and paid (or provided or
reimbursed) in a lump sum as soon as such period ends.


 


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 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.


 


(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 


 


13

















 


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.


 


(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.


 


14














 


(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 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 within the time, if any, required by Section 409A of the
Code.  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.


 


15

















 


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.


 


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.


 


16

















 


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:


 


If to Employer:


 


EarthLink, Inc.


1375 Peachtree Street, N.W.


Suite 7 North


Atlanta, Georgia 30309-2935


Attention: Chief People Officer


 


If to an Employee:


 


The address last indicated on the records of Employer.


 


16.                               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 


 


17

















 


aggregate Net After Tax
Receipts to the Employee would thereby be increased.  Any such reduction shall first reduce any
non-cash benefits on a pro-rata basis and then reduce any cash payments on a
pro-rata basis.  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 as soon as administratively practicable (and
within 30 days) after the final determination of Underpayment has been made.  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 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.


 


18

















 


(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 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 of the Code.  For purposes of this Plan, all rights to
payments and benefits hereunder shall be treated as rights to receive a series
of separate payments and benefits to the fullest extent allowed by Section 409A
of the Code. 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
of the Code.


 


(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.


 


19

















 


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: 

  	
   

  



 


20

















 


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: Chief People
Officer


 


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


 


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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.


 


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Exhibit B - Page 1


 


	
  Benefits

  	
   

  	
  Gold and Silver

  Benefit Category

  	
   

  	
  Bronze

  Benefit Category

  
	
  Cash Severance

  	
   

  	
  Lump sum cash payment of 1.5 times the sum
  of employee’s salary plus bonus target, if within 18 months after a change in
  control the company terminates employee’s employment without cause or
  employee voluntarily terminates his or her employment for good reason; no
  cash severance if termination of employment is on account of the employee’s
  death or disability.

  	
   

  	
  Lump sum cash payment equal to the sum of employee’s
  salary plus bonus target, if within 18 months after a change in control the
  company terminates employee’s employment without cause or employee
  voluntarily terminates his or her employment for good reason; no cash
  severance if termination of employment is on account of the employee’s death
  or disability.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COBRA Benefits

  	
   

  	
  Company will pay all amounts payable with
  respect to the employee’s elected COBRA coverage (including coverage for
  spouse and dependents) for 1.5 years from the termination of the employee’s
  employment, if within 18 months of the change in control the company
  terminates employee’s employment without cause or employee voluntarily
  terminates his or her employment for good reason; no paid COBRA benefits if
  the termination of employment is on account of the employee’s death or
  disability.

  	
   

  	
  Company will pay all amounts payable with
  respect to the employee’s COBRA coverage (including coverage for spouse and
  dependents) for 1 year from the termination of the employee’s employment, if within
  18 months of the change in control the company terminates employee’s
  employment without cause or employee voluntarily terminates his or her
  employment for good reason; no paid COBRA benefits if termination of
  employment is on account of the employee’s death or disability.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accelerated vesting of outstanding stock
  options

  	
   

  	
  If stock options are assumed or continued
  after a change in control, all outstanding stock options granted on or before
  the change in control will vest and be exercisable in full, if not already
  fully vested, on termination of employee’s employment for any reason after
  the change in control occurs; if options are not assumed or continued after
  the change in control, all outstanding stock options are vested and
  exercisable in full contemporaneously with the change in control, if not
  already fully vested.

  	
   

  	
  If stock options are assumed or continued
  after a change in control, all outstanding stock options granted on or before
  the change in control will vest and be exercisable at least as much as if the
  employee had remained employed for 24 months after the change in control
  occurs, if not already vested to such extent; if options are not assumed or
  continued after the change in control, all outstanding stock options are
  vested and exercisable at least as much as if the employee had remained
  employed for 24 months after the change in control occurs, if not already
  vested to such extent.  Individuals in
  the Bronze benefit category will be grandfathered into the vesting under the
  Silver benefit category if they are currently participating in the
  Accelerated Vesting and Compensation Continuation Plan and elect to
  participate in this Plan.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Accelerated vesting of outstanding
  restricted stock units

  	
   

  	
  If restricted stock units are assumed or
  continued after a change in control, all outstanding restricted stock units
  granted on or before the change in control will vest and be earned and
  payable in full, if not already fully vested, on termination of employee’s
  employment for any reason after the change in control occurs; if restricted
  stock units are not assumed or continued after the change in control, all
  outstanding restricted stock units are vested and earned and payable in full
  contemporaneously with the change in control, 

  	
   

  	
  If restricted stock units are assumed or
  continued after a change in control, all outstanding restricted stock units
  granted on or before the change in control will vest and be earned and
  payable at least as much as if the employee had remained employed for 24 months
  after the change in control occurs, if not already vested to such extent; if
  restricted stock units are not assumed or continued after the change in
  control, all outstanding restricted stock units are vested and earned and
  payable at least as much as if the employee had 

  



 

















 


	
  Benefits

  	
   

  	
  Gold and Silver

  Benefit Category

  	
   

  	
  Bronze

  Benefit Category

  
	
   

  	
   

  	
  if not already fully vested; provided that
  restricted stock units that contain performance criteria will not vest if the
  date for attainment of those criteria has passed..

  	
   

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

  



 


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