Exhibit 10.2


 


EARTHLINK, INC.


                                 PLAN


Nonqualified
Stock Option Agreement


No. of shares subject to

Nonqualified Stock Option:


THIS NONQUALIFIED STOCK
OPTION AGREEMENT (this “Agreement”) dated as of the      
day of                ,
20     , by and between EarthLink, Inc., a Delaware
corporation (the “Company”), and                     
(“Participant”) is made pursuant and subject to the provisions of the                     
Plan (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.                                   Grant of Option. 
Pursuant to the Plan, the Company, on                ,
20      (the “Date of Grant”), granted to Participant,
subject to the terms and conditions of the Plan and subject further to the
terms and conditions herein set forth, the right and option to purchase from
the Company all or any part of an aggregate of           
shares of Common Stock at the price of $          
per share. This Option is to be treated as a Nonqualified Stock Option. This
Option is exercisable as hereinafter provided.


 


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


(a)                                  Expiration Date. 
This Option shall expire at 11:59 p.m. on                     ,
20      (the “Expiration Date”).  In no event shall the Expiration Date be
later than 10 years from the Date of Grant.


(b)                                 Exercise of Option. 
Except as provided in the Plan and in paragraphs 3, 4, 5, 6 or 7, this
Option shall become exercisable with respect to Twenty-Five Percent (25%) of
the shares of Common Stock subject to this Option on the first annual
anniversary of the Date of Grant and therewith respect to another Six and One
Quarter Percent (6.25%) of the Shares of Common Stock subject to this Option on
each quarterly (three-month) anniversary thereafter until this Option has
become exercisable with respect to One Hundred Percent (100%) of the shares of
Common Stock subject to this Option, provided Participant is still employed by
the Company or any Subsidiary at each such time.  Once this Option has become exercisable in
accordance with the preceding sentence, it shall continue to be exercisable
until the earlier of the termination of the Participant’s rights hereunder pursuant
to paragraphs 3, 4, 5, 6 or 7 or until the Expiration Date.  A partial exercise of this Option shall not
affect Participant’s right to exercise this Option with respect to the
remaining shares, subject to the conditions of the Plan and this Agreement.


(c)                                  Method of Exercise and Payment for Shares. 
This Option shall be exercised by delivering written notice to the
attention of the Company’s Secretary or his designee at the Company’s principal
office located at 1375 Peachtree Street, Level A, Atlanta, GA 30309.  The exercise date shall be (i) in the case of
notice by mail,


 





















 


the date of postmark, or (ii) if delivered in person,
the date of delivery.  Such notice shall
be accompanied by payment of the Option price, in cash or a cash equivalent
acceptable to the Administrator, or, if the Administrator in its discretion
permits, (i) by the surrender of shares of Common Stock that Participant
has owned for at least six months with an aggregate Fair Market Value
(determined as of the preceding business day) which, together with any cash or
cash equivalent Participant pays, is not less than the Option price of the
number of shares of Common Stock for which the Option is being exercised,
(ii) by a cashless exercise through a broker, (iii) by such other
medium of payment as the Administrator in its discretion shall authorize or (iv) by
any combination of the aforementioned methods of payment.


(d)           Nontransferability.


 


(i)                                     Except as set forth in (ii) below, this
Option is nontransferable except by will or by the laws of descent and
distribution, and, during Participant’s lifetime, only Participant may exercise
this Option. No right or interest of Participant in this Option shall be liable
for, or subject to, any lien, obligation or liability of Participant.


 


(ii)                                Notwithstanding (i) above, Participant may transfer
this Option to his or her children, grandchildren, spouse, one or more trusts
for the benefit of such family members or a partnership in which such family
members are the only partners, on such terms and conditions as the Securities
Exchange Commission Rule 16b-3 as in effect from time to time may permit. Any
such transfer will be permitted only if (i) Participant does not receive any
consideration for the transfer and (ii) the transfer is expressly approved by
the Administrator. In that case, the holder of the Option transferred pursuant
to this (ii) shall be bound by the same terms and conditions that governed the
Option during the period that Participant held it; provided, however, that such
transferee may not transfer the Option except by will or the laws of descent
and distribution.


 


(e)                                  Shareholder Rights. 
Participant shall not have any rights as a shareholder with respect to
shares of Common Stock subject to this Option until the proper exercise of such
Option, the payment of the Option price and any applicable withholding taxes,
and the issuance to Participant of the certificates representing the shares of
Common Stock for which the  Option is
exercised.


3.                                       Exercise in the Event of Death. 
This  Option shall be exercisable
for all or part of the number of shares of Common Stock that Participant is
entitled to purchase pursuant to paragraph 2(a) and (b) as of the date of
Participant’s death, reduced by the number of shares for which Participant
previously exercised the Option, in the event Participant dies while employed
by the Company or any Subsidiary and prior to the Expiration Date and prior to
the termination of the Participant’s rights under paragraphs 4, 5, 6 or
7.  In that event, this Option may be
exercised by Participant’s estate, or the person or persons to whom his rights
under this Option shall pass by will or the laws of descent and distribution,
during the remainder of the period preceding the Expiration Date or within 180
days of the date Participant dies, whichever is shorter.


4.                                       Exercise in the Event of Disability. 
This  Option shall be exercisable
for all or part of the number of shares of Common Stock that Participant is
entitled to purchase pursuant to


 


 


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paragraph 2(a) and (b) as of the date Participant
becomes Permanently and Totally Disabled (as defined below), reduced by the
number of shares for which Participant previously exercised the Option, if
Participant becomes permanently and totally disabled within the meaning of
Section 22(e)(3) of the Code (“Permanently and Totally Disabled”) while
employed by the Company or any Subsidiary and prior to the Expiration Date and
prior to the termination of Participant’s rights under paragraphs 3, 5, 6
or 7.  In that event, Participant may
exercise this Option during the remainder of the period preceding the
Expiration Date or within 180 days of the date Participant ceases to be
employed by the Company or any Subsidiary on account of being Permanently and
Totally Disabled, whichever is shorter. 
The Administrator, in its discretion, shall determine if Participant is
Permanently and Totally Disabled for purposes of this paragraph 4.


5.                                       Exercise in the Event of Retirement. 
This  Option shall be exercisable
for all or part of the number of shares of Common Stock that Participant is
entitled to purchase pursuant to paragraph 2(a) and (b) as of the date
Participant Retires (as defined below), reduced by the number of shares for
which Participant previously exercised the 
Option, if Participant Retires (as defined below) while employed by the
Company or any Subsidiary and prior to the Expiration Date and prior to the
termination of Participant’s rights under paragraphs 3, 4, 6 or 7.  In that event, Participant may exercise this
Option during the remainder of the period preceding the Expiration Date or
within 30 days of the date Participant Retires, whichever is shorter.  For purposes of this Agreement, Participant
Retires whenever Participant terminates employment with the Company or any
Subsidiary on account of retirement under any tax-qualified retirement plan of
the Company in which Participant participates.


6.                                       Exercise After Termination of Employment. 
This  Option shall be exercisable
for all or part of the number of shares that Participant is entitled to
purchase pursuant to paragraph 2(a) and (b) as of the date Participant ceases
to be employed by the Company or any Subsidiary, reduced by the number of
shares for which Participant previously exercised the  Option, if Participant ceases to be employed
by the Company or any Subsidiary other than on account of death or Disability
or because Participant Retires prior to the Expiration Date and prior to the
termination of Participant’s rights under paragraphs 3, 4, 5 or 7.  In that event, Participant may exercise this
Option during the remainder of the period preceding the Expiration Date or
until the date that is 30 days after the date he ceases to be employed by the
Company or any Subsidiary other than on account of death or Disability or
because Participant Retires, whichever is shorter.


7.                                       Termination of Employment for Cause. 
Notwithstanding any other provision of this Agreement, all rights
hereunder will be immediately discontinued and forfeited, and the Company shall
not have any further obligation hereunder to Participant and the Option will
not be exercisable for any number of shares of Common Stock (even if the Option
previously became exercisable), on and after the time Participant is discharged
from employment with the Company or any Subsidiary for Cause.


8.                                       Investment Representations. 
In connection with the acquisition of this Option, Participant
represents and warrants as follows:


(a)                                  Participant is acquiring this Option and,
upon exercise of the Option, will be acquiring shares of Common Stock for
investment for Participant’s own account, not as a nominee or agent, and not
with a view to or for resale in connection with, any distribution thereof.


 


 


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(b)                                 Participant has a pre-existing
business or personal relationship with the Company or one of its directors,
officers or controlling persons and by reason of Participant’s business or
financial experience, has, and could be reasonably assumed to have, the
capacity to evaluate the merits and risks of purchasing shares of Common Stock
and to make an informed investment decision with respect thereto and to protect
Participant’s interest in connection with the acquisition of this Option and
shares of Common Stock.


9.                                       Minimum Exercise.  This Nonqualified Stock Option may not be
exercised for less than       shares of Common Stock
unless it is exercised for the full number of shares that remain subject to the
Nonqualified Stock Option.


10.                                 Fractional Shares.  Fractional shares shall not be issuable
hereunder, and when any provision hereof may entitle
Participant to a fractional share such fraction shall be disregarded.


11.                                 Tax Withholding and
Reporting.  Participant is
responsible for satisfying in cash or cash equivalent any income and employment
(including without limitation Social Security and Medicare) tax withholding
obligations attributable to participation in the Plan as a result of the grant
or exercise.  The Company shall comply
with all such reporting and other requirements relating to the administration
of the Plan and the grant, exercise and vesting of this Option as applicable
law requires.


12.                                 Change in
Capital Structure.  The
terms of this Option shall be adjusted in accordance with the terms and
conditions of the Plan as the Administrator determines is equitably required in
the event the Company effects one or more stock dividends, stock
split-ups, subdivisions or consolidations of shares or other similar changes in
capitalization.


13.                                 No Right
to Continued Employment.  This Option does not confer upon Participant any right with respect to continued of employment by the Company or
any Subsidiary, nor shall it interfere in any way with the right of the Company
or any Subsidiary to terminate Participant’s employment at any time without
assigning a reason therefore.


14.                                 Participant Bound
by Plan.  Participant hereby
acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms
and provisions of the Plan as it may be amended from time to time in accordance
with the terms thereof, provided that no such amendment shall deprive
Participant, without Participant’s consent, of this Option or any rights
thereunder.  Pursuant to the Plan, the
Company’s Board of Directors is authorized to adopt rules and regulations not
inconsistent with the Plan as it shall deem appropriate and proper.  A copy of this Plan in its present form is
available on the Company’s intranet site at                     .


15.                                 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 legatees, distributees, transferees and personal representatives of
Participant and the successors of the Company.


16.                                 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.


17.                                 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 Participant
has affixed his signature hereto.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  	
   

  
	
   

  	
  EARTHLINK,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PARTICIPANT:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SEAL)

  
	
   

  	
  Participant

  
				



 


 


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