Exhibit 10.19


 


EARTHLINK, INC.

EQUITY PLAN FOR NON-EMPLOYEE DIRECTORS


(as amended
effective May 8, 2008)


 


Restricted
Stock Unit Agreement


 


No. of Restricted
Stock


Units Awarded Hereunder:


 


THIS RESTRICTED
STOCK UNIT AGREEMENT (this “Agreement”) dated as of the       
day of          , 20    ,
between EarthLink, Inc., a Delaware corporation (the “Company”), and                     
(the “Participant”) is made pursuant and subject to the provisions of the
Company’s Equity Plan for Non-Employee Directors (as amended effective May 8,
2008) (the “Plan”), a copy of which is attached hereto.  All terms used herein that are defined in the
Plan have the same meaning given them in the Plan.


 


1.             Award of Units.  Pursuant to the Plan, the Company, on               
    , 20     (the “Date of Award”),
awarded to the Participant           
Restricted Stock Units, each Restricted Stock Unit corresponding to one share
of the Company’s $0.01 par value Common Stock (this “Award”).  Subject to the terms and conditions of the Plan,
each Restricted Stock Unit represents an unsecured promise of the Company to
deliver, and the right of the Participant to receive, one share of the $0.01
par value common stock of the Company (the “Common Stock”) at the time and on
the terms and conditions set forth herein. 
As a holder of Restricted Stock Units, the Participant has only the
rights of a general unsecured creditor of the Company.


 


2.             Terms and
Conditions.  This Award
is subject to the following terms and conditions:


 


(a)            Expiration Date.  This Award shall expire at 11:59 p.m. on
               ,
        (the “Expiration Date”).


 


(b)           Vesting of Award.


 


(i)             In General.  Except as otherwise provided below, one
hundred percent (100%) of the outstanding Restricted Stock Units shall become
nonforfeitable and payable on the first annual anniversary of the Date of Award,
provided the Participant is still serving as a Non-Employee Director at such
time.


 


(ii)            Change in Control.  Outstanding Restricted Stock Units that are
not then nonforfeitable and payable shall become nonforfeitable and payable
immediately before the consummation of a Change in Control, provided the
Participant is still serving as a Non-Employee Director at such time.


 


(iii)           Vesting Date.  Outstanding Restricted Stock Units shall be
forfeitable until they become nonforfeitable and payable as described
above.  The date upon 


 

















 


which Restricted Stock Units become nonforfeitable and payable shall be
referred to as the “Vesting Date” with respect to such number of Restricted
Stock Units.


 


(c)            Settlement of Award.  Subject to the terms of this Section 2
and Section 3 below,  the Company
shall issue to the Participant one share of Common Stock for each Restricted
Stock Unit that becomes nonforfeitable and payable under Section 2(b) above
and shall deliver to the Participant certificates representing such Shares as
soon as practicable (and within thirty (30) days) after the Vesting Date.  As a condition to the settlement of the
Award, the Participant shall be required to pay any required withholding taxes
attributable to the Award in cash or cash equivalent acceptable to the Board.  The Company may allow the Participant to
satisfy any such applicable withholding taxes (i) by allowing the
Participant to deliver shares of Common Stock that the Participant already owns
and, if necessary to avoid adverse accounting consequences, has held for at
least six months valued at their Fair Market Value by a “net” settlement
procedure on the day preceding such date (but only for the minimum required
withholding), (ii) through a cashless exercise through a broker, (iii) by
such other medium of payment as the Company shall authorize, or (iv) by
any combination of the allowable methods of payment set forth herein.


 


3.             Termination of Award.  Outstanding Restricted Stock Units that have
not become nonforfeitable and payable prior to the Expiration Date shall expire
and may not become nonforfeitable and payable after such time.  Additionally, any Restricted Stock Units that
have not become nonforfeitable and payable on or before the termination of the
Participant’s service as a director of the Company shall expire and may not
become nonforfeitable and payable after such time.


 


4.             Shareholder Rights.  Except as set forth in Section 7 below,
the Participant shall not have any rights as a shareholder with respect to
shares of Common Stock subject to any Restricted Stock Units until issuance of
the certificates representing such shares of Common Stock.  The Company may include on any certificates
representing shares of Common Stock issued pursuant to this Award such legends
referring to any representations, restrictions or any other applicable
statements as the Company, in its discretion, shall deem appropriate.


 


5.             Nontransferability.  Except as described below, this Award is
nontransferable except by will or the laws of descent and distribution.  If this Award is transferred by will or the
laws of descent and distribution, the Award must be transferred in its entirety
to the same person or persons or entity or entities.  Notwithstanding the foregoing, the
Participant, at any time prior to the Participant’s death, may transfer all or
any portion of this Award to a Permitted Transferee.  In that event, the Permitted Transferee will
be entitled to all the rights of the Participant with respect to the
transferred Award (except that such Permitted Transferee may not assign the
Award other than by will or the laws of descent and distribution), and such
portion of the Award shall continue to be subject to all of the terms, conditions
and restrictions applicable to the Award as set forth herein and in the Plan
immediately prior to the effective date of the transfer.  Any such transfer will be permitted only if (i) the
Participant does not receive any consideration for the transfer and (ii) the
Board expressly approves the transfer. 
Any such transfer shall be evidenced by an appropriate written document
that the Participant executes and the Participant shall deliver a copy thereof
to the Board on or prior to the effective date of the 


 


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transfer.  No right or interest of the Participant in
this Award shall be liable for, or subject to, any lien, liability or
obligation of the Participant.


 


6.             Representation.  In connection with the acquisition of this
Award, the Participant represents and warrants that it is the Participant’s
intent to continue to serve as a director of the Company for the remainder of
Participant’s term as a director during which this Award is granted.


 


7.             Cash Dividends.  For so long as the Participant holds
outstanding Restricted Stock Units, if the Company pays any cash dividends on
its Common Stock, then the Company will pay the Participant in cash for each
outstanding Restricted Stock Unit covered by this Award as of the record date
for such dividend, less any required withholding taxes, the per share amount of
such dividend that the Participant would have received had the Participant
owned the underlying shares of Common Stock as of the record date of the dividend
if, and only if, the Restricted Stock Units become earned and payable and the
related shares of Common Stock are issued to the Participant.  In that case, the Company shall pay such cash
amounts to the Participant, less any required withholding taxes, at the same
time the related shares of Common Stock are delivered.  The additional payments pursuant to this Section 7
shall be treated as a separate arrangement.


 


8.             Change in Capital Structure.  The terms of this Award shall be adjusted in
accordance with the terms and conditions of the Plan if the Company effects one
or more stock dividends or stock splits. 
If there is a subdivision or consolidation of shares or other similar
change in capitalization other than as a result of stock dividends or stock
splits, the Board may adjust the terms of this Award to the extent the Board in
its discretion may consider appropriate.


 


9.             Golden Parachute Provisions.


 


(a)            If any payment to the
Participant hereunder or in conjunction with any other payment pursuant to any
other agreement, policy, plan or program would subject the Participant to an
excise tax imposed by Code Section 4999 or to any similar tax imposed by
state or local law or any related interest or penalties (such tax or taxes,
together with any such interest or penalties, being hereinafter collectively
referred to as the “Excise Tax”), then the payments provided under this
Agreement shall be reduced (but not below zero) if, and only to the extent
that, such reduction will allow the Participant to receive a greater “Net After
Tax Amount” than the Participant would receive absent any such reduction.  “Net After Tax Amount” means the amount of
any Parachute Payments (as defined in (b) below) or Capped Payments (as
defined in (c) below), as applicable, net of taxes imposed under Code
Sections 1, 3101(b) and 4999 and any State or local income taxes
applicable to the Participant on the date of payment.  The determination of the Net After Tax Amount
shall be made using the highest combined effective rate imposed by the
foregoing taxes on income of the same character as the Parachute Payments or
Capped Payments, as applicable, in effect on the date of payment.


 


(b)           The independent accounting
firm that the Company, in its sole discretion, engages (the “Accounting Firm”)
will first determine the amount of any “Parachute Payments” that are payable to
the Participant.  “Parachute Payment”
means a payment that is described in Code Section 280G(b)(2), determined
in accordance with Code Section 280G and the regulations 


 


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promulgated or proposed
thereunder.  The Accounting Firm also
will determine the Net After Tax Amount attributable to the Participant’s total
Parachute Payments.


 


(c)            The Accounting Firm will
next determine the largest amount of payments that may be made to the
Participant without subjecting the Participant to the Excise Tax (the “Capped
Payments”).  Thereafter, the Accounting
Firm will determine the Net After Tax Amount attributable to the Capped
Payments.


 


(d)           The Participant then will
receive the total Parachute Payments or the Capped Payments, whichever provides
the Participant with the higher Net After Tax Amount.  If the Participant will receive the Capped
Payments (i.e. some amount less than the total Parachute Payments), the total
Parachute Payments will be adjusted by first reducing the amount of any
benefits under this Agreement or the noncash benefits under any other plan,
agreement or arrangement (with the source of the reduction to be directed by
the Participant) and then by reducing the amount of any cash benefits under any
other plan, agreement or arrangement (with the source of the reduction to be
directed by the Participant).  The
Accounting Firm will notify the Participant and the Company if it determines
that the Parachute Payments must be reduced and will send the Participant and
the Company a copy of its detailed calculations supporting that determination.


 


(e)            As a result of the
uncertainty in the application of Code Sections 280G and 4999 at the time that
the Accounting Firm makes its determinations under this Section 9, it is
possible that amounts will have been paid or distributed to the Participant
that should not have been paid or distributed under this Section 9 (“Overpayments”),
or that additional amounts should be paid or distributed to the Participant
under this Section 9 (“Underpayments”). 
If the Accounting Firm determines, based on either the assertion of a
deficiency by the Internal Revenue Service against the Company or the Participant,
which assertion the Accounting Firm believes has a high probability of success
or controlling precedent or substantial authority, that an Overpayment has been
made, that Overpayment will be treated for all purposes as a loan that the
Participant must repay to the Company together with interest at the applicable
federal rate under Code Section 7872(f)(2); provided, however, that no
loan will be deemed to have been made and no amount will be payable by the
Participant to the Company unless, and then only to the extent that, the deemed
loan and payment would either reduce the amount on which the Participant is
subject to tax under Code Sections 1, 3101 or 4999 or generate a refund of such
taxes.  If the Accounting Firm
determines, based upon controlling precedent or other substantial authority,
that an Underpayment has occurred, the Accounting Firm will notify the
Participant and the Company of that determination and the amount of that
Underpayment will be paid to the Participant promptly by the Company.


 


(f)            The fees and expenses of the
Accounting Firm for its services in connection with the determinations and
calculations contemplated by the preceding subsections shall be borne by the
Company.  If such fees and expenses are
initially paid by Participant, the Company shall reimburse Participant the full
amount of such fees and expenses within five business days after receipt from
Participant of a statement therefor and reasonable evidence of Participant’s
payment thereof.


 


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(g)           The Company and Participant
shall each provide the Accounting Firm access to and copies of any books,
records and documents in the possession of the Company or Participant, as the
case may be, reasonably requested by the Accounting Firm, and otherwise
cooperate with the Accounting Firm in connection with the preparation and
issuance of the determinations and calculations contemplated by the preceding
subsections.  Any determination by the
Accounting Firm shall be binding upon the Company and the Participant.


 


(h)           The federal, state and local
income or other tax returns filed by the Participant shall be prepared and
filed on a consistent basis with the determination of the Accounting Firm with
respect to the any such Excise Tax payable by Participant.  The Participant, at the request of the
Company, shall provide the Company true and correct copies (with any
amendments) of the Participant’s federal income tax returns as filed with the
Internal Revenue Service and corresponding state and local tax returns, if
relevant, as filed with the applicable taxing authority, and such other
documents reasonably requested by the Company, evidencing such conformity.


 


10.           Notice.  Any notice or other communication given
pursuant to this Agreement, or in any way with respect to the Award, shall be
in writing and shall be personally delivered or mailed by United States
registered or certified mail, postage prepaid, return receipt requested, to the
following addresses:


 


	
  If
  to the Company:

  	
  EarthLink, Inc.

  
	
   

  	
  1375 Peachtree
  Street - Level A

  
	
   

  	
  Atlanta, Georgia
  30309

  
	
   

  	
  Attention:  General Counsel

  
	
   

  	
   

  
	
  If
  to the Participant:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


11.           No Right to Continued
Service.  Neither the Plan, the granting
of this Award nor any other action taken pursuant to the Plan or this Award
constitutes or is evidence of any agreement or understanding, express or
implied, that the Company will retain the Participant as a director for any
period of time or at any particular rate of compensation.


 


12.           Participant Bound by Plan.  The Participant hereby acknowledges receipt
of a copy of the Plan and agrees to be bound by all the terms and provisions of
the Plan.


 


13.           Tax
Consequences.  The Participant acknowledges that (i) there
may be tax consequences upon any acquisition or disposition of shares of Common
Stock issued pursuant to this Award and (ii) Participant should consult a
tax adviser regarding the tax consequences of this Award.  The Participant is solely responsible for
determining the tax consequences of the Award and for satisfying the
Participant’s tax obligations with respect to the Award (including, but not
limited to, any income or excise taxes resulting from the application of Code Section 409A).


 


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14.           Binding Effect.  Subject to the limitations stated above and
in the Plan, this Agreement shall be binding upon and inure to the benefit of
the distributees, legatees and personal representatives of the Participant and
the successors of the Company.


 


15.           Conflicts.  In the event of any conflict between the
provisions of the Plan and the provisions of this Agreement, the provisions of
the Plan shall govern.  All references
herein to the Plan shall mean the Plan as in effect on the date hereof.


 


16.           Counterparts.  This Agreement may be executed in a number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one in the same instrument.


 


17.           Miscellaneous.  The parties agree to execute such further
instruments and take such further actions as may be necessary to carry out the
intent of the Plan and this Agreement. 
This Agreement and the Plan shall constitute the entire agreement of the
parties with respect to the subject matter hereof.


 


18.           Section 409A.  Notwithstanding any other provision of this
Agreement, it is intended that payments hereunder will not be considered
deferred compensation within the meaning of Section 409A of the Code.  For purposes of this Agreement, all rights to
payments 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.  Payments hereunder are intended to
satisfy the exemption from Section 409A of the Code for “short-term
deferrals.”  Notwithstanding the
preceding, neither the Company nor any Affiliate shall be liable to the
Participant 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 payments hereunder are subject to taxes, penalties or interest as a
result of failing to be exempt from, or comply with, Section 409A of the
Code.


 


19.           Governing Law.  This Agreement shall be governed by the laws
of the State of Delaware, except to the extent federal law applies.


 


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IN WITNESS
WHEREOF, the Company has caused this Agreement to be signed by a duly
authorized officer, and the Participant has affixed his signature hereto.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  EARTHLINK, INC.

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Rolla P. Huff

  
	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  
	
   

  	
   

  



 


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