AN AMOUNT EQUAL TO SIXTY-FIVE PERCENT (65%) OF YOUR ELIGIBLE EARNINGS (THE
"ANNUAL TARGET BONUS"), WITH THE ABILITY TO EARN FIFTY PERCENT (50%) (THRESHOLD)
TO ONE HUNDRED FIFTY PERCENT (150%) (MAXIMUM) OF YOUR ANNUAL TARGET BONUS IF THE
BONUS CRITERIA FOR SUCH ANNUAL PERIOD, AS SET BY THE BOARD OF DIRECTORS OF THE
COMPANY, ARE SATISFIED (THE "TARGET BONUS PAYMENT"); PROVIDED THAT 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.
(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.
(D)
PURSUANT TO THIS SECTION 4(D), YOU SHALL PARTICIPATE IN THE
CHANGE-IN-CONTROL ACCELERATED VESTING AND SEVERANCE PLAN AMENDED AND RESTATED
EFFECTIVE FEBRUARY 17, 2006 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
7
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 THIS AGREEMENT, YOU SHALL BE ENTITLED TO RECEIVE
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