TIME, OR AS OTHERWISE VESTED PURSUANT TO SECTION 6.
UPON EXECUTION OF
THE PREVIOUS AGREEMENT, YOU ALSO RECEIVED (1) 700,000 STOCK OPTIONS WHICH VESTED
AS OF SEPTEMBER 30, 2007 AND (II) 800,000 STOCK OPTIONS WHICH VEST OVER A PERIOD
OF FOUR YEARS IN ACCORDANCE WITH THE TERMS OF THE EARTHLINK, INC. 2006 EQUITY
AND CASH INCENTIVE PLAN, WITH 300,000 STOCK OPTIONS VESTING ON DECEMBER 31, 2008
AND THE REMAINING 500,000 STOCK OPTIONS VESTING ON A MONTHLY BASIS BETWEEN
JANUARY 1, 2009 AND JUNE 25, 2011, ASSUMING YOUR CONTINUED EMPLOYMENT UNTIL EACH
SUCH TIME, OR AS OTHERWISE VESTED PURSUANT TO SECTION 6.
(B)
THE STOCK OPTIONS AND
RESTRICTED STOCK UNITS GRANTED BY THE COMPANY TO YOU FROM TIME TO TIME ARE
HEREINAFTER COLLECTIVELY CALLED THE "STOCK OPTIONS AND RSUS."
YOU SHALL BE
GIVEN THE PERIOD PERMITTED UNDER YOUR RESPECTIVE STOCK OPTION AGREEMENTS, WHICH
SHALL CONTAIN THE MATERIAL TERMS PROVIDED IN THE FORM ATTACHED TO THIS
AGREEMENT, TO EXERCISE YOUR STOCK OPTIONS AFTER YOUR TERMINATION OF EMPLOYMENT.
(C)
VESTED STOCK OPTIONS SHALL
BE EXERCISABLE FOR NINETY (90) DAYS FOLLOWING TERMINATION OF EMPLOYMENT,
PROVIDED THAT IF YOU ARE PROHIBITED FROM EXERCISING VESTED STOCK OPTIONS DURING
SUCH NINETY (90) DAY PERIOD DUE TO HAVING MATERIAL NON-PUBLIC INFORMATION ABOUT
THE COMPANY, SUCH EXERCISE PERIOD SHALL BE EXTENDED UNTIL TEN (10) DAYS
FOLLOWING THE DATE THAT YOU NO LONGER HAVE MATERIAL NON-PUBLIC INFORMATION ABOUT
THE COMPANY, BUT IN NO EVENT SHALL THE VESTED STOCK OPTIONS BE EXERCISABLE
BEYOND THEIR LATEST EXPIRATION DATE AS SET FORTH IN THE RESPECTIVE STOCK OPTION
AGREEMENTS.
6.
TERMINATION.
(A)
A TERMINATION OF EMPLOYMENT
SHALL OCCUR ONLY AS FOLLOWS:
(1)
FOR CAUSE IMMEDIATELY BY THE COMPANY; OR
(2)
AT YOUR OPTION FOR GOOD REASON; OR
8
(3)
AT YOUR OPTION UPON THIRTY (30) DAYS PRIOR
WRITTEN NOTICE OF TERMINATION DELIVERED BY YOU TO THE COMPANY; OR
(4)
FOR ANY REASON BY THE COMPANY UPON THREE
(3) CALENDAR MONTHS PRIOR WRITTEN NOTICE OF TERMINATION DELIVERED TO YOU, EXCEPT
DURING A PERIOD OF YOUR DISABILITY THAT MAY QUALIFY AS THE PERIOD FOR
QUALIFICATION FOR YOUR TERMINATION OF EMPLOYMENT DUE TO YOUR TOTAL DISABILITY AS
SET FORTH IN SECTION 6(A)(6); OR
(5)
BY THE COMPANY UPON YOUR DEATH; OR
(6)
BY THE COMPANY BECAUSE OF YOUR TOTAL
DISABILITY UPON THIRTY (30) DAYS PRIOR WRITTEN NOTICE OF TERMINATION DELIVERED
TO YOU.
(B)
IF YOU HAVE A TERMINATION OF
EMPLOYMENT THAT IS (I) BY THE COMPANY FOR OTHER THAN "CAUSE," YOUR DEATH OR YOUR
TOTAL DISABILITY, OR (II) BY YOU FOR "GOOD REASON," YOU SHALL BE PAID AN AMOUNT
EQUAL TO (A) TWO HUNDRED PERCENT (200%) OF THE SUM OF (I) YOUR BASE SALARY AS OF
THE EFFECTIVE DATE OF YOUR TERMINATION OF EMPLOYMENT AND (II) YOUR ANNUAL TARGET
BONUS FOR THE YEAR IN WHICH YOUR TERMINATION OF EMPLOYMENT OCCURS, LESS (B) THE
AMOUNT OF THE NON-COMPETE PAYMENT.
SUBJECT TO SECTION 19 BELOW, SUCH AMOUNT
SHALL BE PAID IN A LUMP SUM AS SOON AS ADMINISTRATIVELY PRACTICABLE (AND WITHIN
THIRTY (30) DAYS) AFTER YOUR TERMINATION OF