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 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
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 THE PREVIOUS AGREEMENT, YOU RECEIVED 50,000 RSUS
WHICH SHALL VEST IN ACCORDANCE WITH THE TERMS OF THE EARTHLINK, INC. 2006 EQUITY
AND