Earthlink 2014 Annual Report Download - page 117

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units, deferred compensation, commissions, and any other forms of compensation over and above the
Participant’s actual wages earned during the Bonus Period.
“ Corporate Performance Objectives ”
means Adjusted EBITDA, Total Free Cash Flow and Revenue, in such
amounts as the Committee shall determine in its sole discretion for the Bonus Period that must be achieved for the
Participant’
s Performance Bonus Multiplier for the Bonus Period to be greater than zero (0). Notwithstanding the
foregoing, the Committee may establish Corporate Performance Objectives based upon any of the business criteria with
respect to which Awards (as defined therein) that are intended to constitute qualified performance-
based compensation
under EarthLink ’
s 2011 Equity and Cash Incentive Plan may be based. The Committee shall adjust the Corporate
Performance Objectives as the Committee in its sole discretion may determine is appropriate in the event of unbudgeted
acquisitions or divestitures or other unexpected fundamental changes in the business of EarthLink
, any business unit or
any product that is material taken as a whole to fairly and equitably determine the Bonus Awards and to prevent any
inappropriate enlargement or dilution of the Bonus Awards. In that respect, the Corporate Performance Objectives may
be adjusted to reflect, by way of example and not of limitation, (i) unanticipated asset write-
downs or impairment
charges, (ii) litigation or claim judgments or settlements thereof, (iii) changes in tax laws, accounting principles or other
laws or provisions affecting reported results, (iv) accruals for reorganization or restructuring programs, or extraordinary
non-reoccurring items as described in Accounting Principles Board Opinion No. 30 or as described in management’
s
discussion and analysis of the financial condition and results of operations appearing in EarthLink ’
s Annual Report on
Form 10-
K for the applicable year, (v) acquisitions or dispositions or (vi) foreign exchange gains or losses. To the extent
any such adjustments affect any Bonus Award, the intent is that the adjustments shall be in a form that allows the Bonus
Award to continue to meet the requirements of Section 162(m) of the Code for deductibility to the extent intended to
constitute qualified performance-based compensation.
“ Disability ”
has the same definition as under any employment or service agreement between the Employer and
the Participant or, if no such employment or service agreement exists or if such employment or service agreement does
not contain any such definition, Disability means where the Participant is “disabled” or has incurred a “disability”
in
accordance with the policies of the Employer that employs the Participant in effect at the applicable time.
“ Discretionary Bonus ” means the Participant’
s Maximum Potential Discretionary Bonus or such lesser amount
as the Committee in its sole discretion may determine based upon the Committee’s assessment of the Participant’
s
desired individual performance for the Bonus Period and any reductions pursuant to Section 5.2(e).
“ Distribution ” means the payment of the Bonus Award under the Plan.
“ Distribution Date ” means the date on which the Distribution occurs.
“ Effective Date ” means January 1, 2014.
“ Employee ” means a common law employee of an Employer who is classified as “exempt” on the Employer’
s
payroll, personnel or tax records. A common law employee of an Employer only includes an individual who renders
personal services to the Employer and who, in accordance with the established payroll, accounting and personnel
policies of the Employer, is characterized by the Employer as an “exempt”
common law employee. An Employee does
not include (i) any person whom the Employer has identified on its payroll, personnel or tax records as an independent
contractor or (ii) any person who has acknowledged in writing to the Employer that such person is an independent
contractor, whether or not in case of both (i) and (ii) a court, the Internal Revenue Service or any other authority
ultimately determines such classification to be correct or incorrect as a matter of law or (iii) any person who is classified
other than as “exempt” on the Employer’s payroll, personnel or tax records.
“ Employer ”
means EarthLink, the Company and any Affiliate of EarthLink who employs one or more
Employees.
“ Free Cash Flow ”
means Adjusted EBITDA less cash used for purchases of property and equipment and less
acquisition, restructuring and integration-related costs.
“ Incumbent Board ”
means a Board of Directors of EarthLink at least a majority of whom consist of individuals