Exhibit
10.1


 


EARTHLINK, INC.


 


CHANGE-IN-CONTROL ACCELERATED VESTING


AND SEVERANCE PLAN


 


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


 


WITNESSETH:


 


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


 


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


 


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


 


1.             Definitions.


 


For purposes of this Plan:


 


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


 


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


 


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


 


(1)           to
Employee’s surviving spouse; or


 


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


 


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


 


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


 

















 


President of the Employer; the Silver Benefit Category shall include
the Chief Financial Officer of the Employer 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 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 


 


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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 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 


 


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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 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 


 


4

















 


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


 


(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 


 


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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.


 


(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 


 


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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 be
considered as having had a Termination of Employment if (i) the Employee
continues to provide services to the Employer or any Affiliate as an employee
(as that term is used in Code Section 409A) at an annual rate that is at
least equal to 20 percent of the services rendered, on average, during the
immediately preceding three full calendar years of employment (or, if 


 


7

















 


employed less than three years, such lesser period) and the annual
remuneration for such services is at least equal to 20 percent of the average
annual remuneration earned during the final three full calendar years of
employment (or if less, such lesser period), (ii) the Employee continues
to provide services to the Employer or any Affiliate in a capacity other than
as an employee (as that term is used in Code Section 409A) and such
services are provided at an annual rate that is 50 percent or more of the
services rendered, on average, during the immediately preceding three full
calendar years of employment (or, if employed less than three years, such
lesser period) and the annual remuneration for such services is 50 percent or
more of the annual remuneration earned during the final three full calendar
years of employment (or, if less, such lesser period) or (iii) the
Employee is on military leave, sick leave or other bona fide leave of absence
(such as temporary employment by the government) so long as the period of such
leave does not exceed six months, or if longer, so long as the individual’s
right to reemployment with the Employer or any Affiliate is provided either by
statute or by contract.  If the period of
leave (i) ends or (ii) exceeds six months and the Employee’s right to
reemployment is not provided either by statute or by contract, the Employee’s
Termination of Employment will be deemed to occur on the first date immediately
following such time if not reemployed by the Employer or any Affiliate before
such time and eligibility for payments and benefits hereunder will be
determined as of that time.  For purposes
of this Section, annual rate of providing services shall be determined based
upon the measurement used to determine the Employee’s base compensation.


 


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


 


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


 


2.             Benefits Upon
Termination of Employment.


 


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


 


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


 


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


 


8

















 


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


 


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


 


(b)           If
the Employee has a Termination of Employment by the Employer or an Affiliate or
by the Employee other than under the circumstances set forth in Section 2(a),
including without limitation on the death or On Account of Disability of the
Employee, by the Employer or an Affiliate for Cause or by the Employee other
than for Good Reason, then the Employee’s compensation shall be paid through
the date of his or her Termination of Employment, and the Employer and its
Affiliates shall have no further obligation with respect to the Employee under
this Plan.  Such Termination of
Employment shall have no effect upon an Employee’s other rights, including but
not limited to rights under any Retirement Plan, Welfare Plan or other plan or
program in which Employee participates, the amount, form and time of payment of
such benefits to be determined by the terms of such Retirement Plan, Welfare
Plan, or other plan or program.


 


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


 


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


 


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


 


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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.  Each Employee’s right to participate under
this Plan and to receive benefits hereunder 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.


 


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 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.


 


13

















 


(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.


 


(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 


 


14

















 


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.  The Employer also may
employ such accountants, counsel, specialists and other advisory clerical
persons as it deems necessary or desirable in connection with administration of
the Plan.  The Employer is entitled to
rely conclusively on any opinions from its accountants or counsel.  The Employer will keep all books of account,
records and other data necessary for proper administration of the Plan.


 


8.                                       Employee
Assignment.


 


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


 


15

















 


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.


 


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.


 


16

















 


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 aggregate Net After Tax Receipts to the
Employee would thereby be increased.  As
a result of the uncertainty in the application of Code Section 4999 at the
time of the initial determination by the Employer under this Section, however, it
is possible that amounts will have been paid under the Plan to or for the
benefit of an Employee which should not have been so paid (“Overpayment”) or
that additional amounts which will not have been paid under the Plan to or for
the benefit of an Employee could have been so paid (“Underpayment”), in each
case consistent with the calculation of the Reduced Amount.  If the Employer, based either upon the
assertion of a deficiency by the Internal Revenue Service against the Employer
or the Employee, which the Employer believes has a high probability of success,
or controlling precedent or other substantial authority, determines that an
Overpayment has been made, any such Overpayment must be treated for all
purposes as a loan which the Employee must repay to the Employer together with
interest at the applicable Federal rate under Code Section 7872(f)(2);
provided, however, that no such loan may be deemed to have been made and no
amount shall be payable by the Employee to the Employer if and to the extent
such deemed loan and payment would not either reduce the amount on which the
Employee is subject to tax under Code Section 1, 3101 or 4999 or generate
a refund of such taxes.  If the Employer,
based upon controlling precedent or other substantial authority, determines
that an Underpayment has occurred, the Employer must pay the amount of the
Underpayment to the Employee.  For
purposes of this Section, (i) “Net 


 


17

















 


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.


 


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


 


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


 


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


 


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


 


(g)                                 This
Plan is intended to comply with the applicable requirements of Section 409A
of the Code and shall be construed and interpreted in accordance
therewith.  The Employer may at any time
amend, suspend or terminate this Plan, or any payments to be made hereunder, as
necessary to be in compliance with Section 409A.  Notwithstanding the preceding, the Employer
and all Affiliates shall not be liable to any Employee or any other person if
the Internal Revenue 


 


18

















 


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.


 


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


 


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


 


	
   

  	
  EARTHLINK,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
				



 


19
















 


EARTHLINK, INC.


CHANGE-IN-CONTROL ACCELERATED VESTING AND
SEVERANCE PLAN


SUMMARY PLAN DESCRIPTION


 


NAME OF PLAN:


 


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


 


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


 


EarthLink, Inc. (“Employer”)


1375 Peachtree Street, N.W.


Suite 7 North


Atlanta, Georgia 30309-2935


(404) 815-0770


 


The Employer administers
the Plan.


 


EMPLOYER IDENTIFICATION
NUMBER:


 


58-2511877


 


PLAN NUMBER ASSIGNED TO
THIS PLAN:


 


501


 


ORIGINAL EFFECTIVE DATE:


 


April 19, 2001


 


PLAN YEAR:


 


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


 


FISCAL YEAR FOR
MAINTAINING PLAN RECORDS:


 


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


 


TYPE OF WELFARE PLAN:


 


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


 


TYPE OF ADMINISTRATION OF
THE PLAN:


 


The Employer administers the Plan as described in Section 7.


 

















 


PROVISIONS FOR
ELIGIBILITY REQUIREMENTS:


 


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


 


DESCRIPTION OF PLAN
BENEFITS:


 


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


 


SOURCES OF CONTRIBUTIONS
TO THE PLAN AND FUNDING MEDIUM:


 


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


 


PROCEDURES FOR PRESENTING
CLAIMS AND REDRESS OF DENIED CLAIMS:


 


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


 


AGENT FOR SERVICE OF
PROCESS:


 


EarthLink, Inc.


1375 Peachtree Street, N.W.


Suite 7 North


Atlanta, Georgia 30309-2935


Attention: 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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