BONUS
CRITERIA ARE NOT SATISFIED, NO ANNUAL TARGET BONUS SHALL BE PAYABLE.
THE
CRITERIA TO EARN YOUR ANNUAL TARGET BONUS AND OTHER LEVELS BETWEEN THE THRESHOLD
AND MAXIMUM FOR EACH YEAR OF THE TERM SHALL BE BASED UPON GOOD FAITH
NEGOTIATIONS BETWEEN YOU AND THE BOARD OF DIRECTORS.
ALL TARGET BONUS PAYMENTS
THAT BECOME PAYABLE SHALL BE PAID TO YOU IN ACCORDANCE WITH THE APPLICABLE BONUS
PLAN BUT IN NO EVENT LATER THAN 21⁄2 MONTHS AFTER THE END OF THE FISCAL YEAR OF
THE COMPANY TO WHICH YOUR TARGET BONUS PAYMENTS RELATE.
(C)
WHILE YOU ARE PERFORMING
THE SERVICES DESCRIBED HEREIN, THE COMPANY SHALL REIMBURSE YOU FOR ALL
REASONABLE AND NECESSARY EXPENSES INCURRED BY YOU IN CONNECTION WITH THE
PERFORMANCE OF YOUR DUTIES OF EMPLOYMENT HEREUNDER IN ACCORDANCE WITH THE
COMPANY'S EXPENSE REIMBURSEMENT POLICY, AS APPLIED TO THE COMPANY'S EXECUTIVE
OFFICERS, AS SOON AS ADMINISTRATIVELY PRACTICABLE BUT NO LATER THAN 2 1⁄2 MONTHS
AFTER THE END OF THE YEAR IN WHICH YOU INCUR THE REIMBURSABLE EXPENSE.
(D)
PURSUANT TO THIS
SECTION 4(D), YOU SHALL PARTICIPATE IN THE CHANGE-IN-CONTROL ACCELERATED VESTING
AND SEVERANCE PLAN AMENDED AND RESTATED EFFECTIVE DECEMBER 15, 2008 AND ANY
PLAN(S) OR PROGRAM(S) THAT SUPERSEDE, REPLACE AND/OR SUPPLEMENT SUCH PLAN, AS IN
EFFECT FROM TIME TO TIME (THE "AV/SP"), AT THE HIGHEST AND MOST BENEFICIAL LEVEL
OF PARTICIPATION PROVIDED UNDER THE AV/SP.
WITH RESPECT TO EACH INDIVIDUAL
BENEFIT, OR CATEGORY OF SIMILAR BENEFIT, PROVIDED TO YOU UNDER EACH OF THE AV/SP
AND THIS AGREEMENT, THE TWO (2) BENEFITS SHALL NOT BE CUMULATIVE, AND YOU SHALL
BE ENTITLED TO RECEIVE EACH SUCH BENEFIT, OR CATEGORY OF BENEFIT, UNDER THE
TERMS OF THE AV/SP OR THE TERMS OF THIS AGREEMENT, WHICHEVER WOULD BE THE
GREATER AMOUNT OR VALUE TO YOU, EXCEPT THAT THE TIMING AND MANNER OF PAYMENT OF
SUCH BENEFITS SHALL BE CONSISTENT WITH THE TERMS OF THIS AGREEMENT, REGARDLESS
OF WHETHER THE AMOUNT OR VALUE OF THE BENEFITS YOU ARE ENTITLED TO RECEIVE ARE
DETERMINED UNDER THE AV/SP OR THIS AGREEMENT.
THE RESTRICTIONS ON CUMULATION OF
BENEFITS IN THIS SECTION 4(D), AND THE APPLICATION OF THE TERMS OF THE AV/SP TO
7
BENEFITS PROVIDED THEREUNDER, SHALL NOT APPLY TO YOUR RIGHT TO QUALIFY FOR AND
PARTICIPATE IN THE AV/SP AT THE HIGHEST AND MOST BENEFICIAL LEVEL OF
PARTICIPATION.
(E)
YOU SHALL RECEIVE PAID
VACATION DURING EACH TWELVE (12) MONTH PERIOD OF YOUR EMPLOYMENT IN ACCORDANCE
WITH THE COMPANY'S VACATION POLICY.
TO THE EXTENT THAT YOU DO NOT USE YOUR
ACCRUED VACATION DURING SUCH TWELVE (12) MONTH PERIOD, ANY REMAINING ACCRUED
VACATION SHALL BE SUBJECT TO THE CARRYOVER RESTRICTIONS APPLICABLE IN THE
COMPANY'S NORMAL VACATION POLICIES.
5.
EQUITY RIGHTS.
(A)
UPON EXECUTION OF THE
PREVIOUS AGREEMENT, YOU RECEIVED 100,000 RSUS WHICH SHALL VEST IN ACCORDANCE
WITH THE TERMS OF THE EARTHLINK, INC. 2006 EQUITY AND CASH INCENTIVE PLAN, WITH
50,000 RSUS VESTING ON JUNE 25, 2009, 25,000 RSUS VESTING ON JUNE 25, 2010 AND
25,000 RSUS VESTING ON JUNE 25, 2011, ASSUMING YOUR CONTINUED EMPLOYMENT UNTIL
EACH SUCH