THE PARTICIPANT HAS RECEIVED A COPY OF THE PLAN, HAS READ AND UNDERSTANDS THE
TERMS OF THE PLAN AND THIS AGREEMENT, AND AGREES TO BE BOUND BY THEIR TERMS AND
CONDITIONS.
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11.
TAX CONSEQUENCES.
THE PARTICIPANT
ACKNOWLEDGES THAT (I) THERE MAY BE ADVERSE TAX CONSEQUENCES UPON ACQUISITION OR
DISPOSITION OF THE SHARES OF COMMON STOCK ISSUED PURSUANT TO THIS AWARD AND
(II) PARTICIPANT SHOULD CONSULT A TAX ADVISER PRIOR TO SUCH ACQUISITION OR
DISPOSITION.
THIS AWARD IS INTENDED TO BE EXEMPT FROM CODE SECTION 409A.
HOWEVER, THE PARTICIPANT IS SOLELY RESPONSIBLE FOR DETERMINING THE TAX
CONSEQUENCES OF THE AWARD AND FOR SATISFYING THE PARTICIPANT'S TAX OBLIGATIONS
WITH RESPECT TO THE AWARD (INCLUDING, BUT NOT LIMITED TO, ANY INCOME OR EXCISE
TAXES RESULTING FROM THE APPLICATION OF CODE SECTION 409A), AND THE COMPANY
SHALL NOT BE LIABLE IF THIS AWARD IS SUBJECT TO CODE SECTION 409A.
12.
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 DISTRIBUTEES, LEGATEES AND PERSONAL REPRESENTATIVES OF THE
PARTICIPANT AND THE SUCCESSORS OF THE COMPANY.
13.
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.
14.
COUNTERPARTS.
THIS AGREEMENT MAY BE
EXECUTED IN A NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL,
BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE IN THE SAME INSTRUMENT.
15.
MISCELLANEOUS.
THE PARTIES AGREE TO EXECUTE
SUCH FURTHER INSTRUMENTS AND TAKE SUCH FURTHER ACTIONS AS MAY BE NECESSARY TO
CARRY OUT THE INTENT OF THE PLAN AND THIS AGREEMENT.
THIS AGREEMENT AND THE
PLAN SHALL CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF.
16.
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 the Participant has affixed his signature hereto.
COMPANY:
EARTHLINK, INC.
By:
Name:
Title:
PARTICIPANT:
[Participant's Name]
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