IF SUCH 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 SECOND HIGHEST AND SECOND 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
BENEFITS PROVIDED THEREUNDER, SHALL NOT APPLY TO YOUR RIGHT TO QUALIFY FOR AND
PARTICIPATE IN THE AV/SP AT THE SECOND HIGHEST AND SECOND 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.
7
5.
EQUITY RIGHTS.
(A)
UPON EXECUTION OF THE PREVIOUS AGREEMENT, YOU
RECEIVED 50,000 RSUS WHICH SHALL VEST IN ACCORDANCE WITH THE TERMS OF THE
EARTHLINK, INC. 2006 EQUITY AND CASH INCENTIVE PLAN, WITH 25,000 RSUS VESTING ON
AUGUST 27, 2009, 12,500 RSUS VESTING ON AUGUST 27, 2010 AND 12,500 RSUS VESTING
ON AUGUST 27, 2011, ASSUMING