Earthlink 2014 Annual Report Download - page 126

with the Company within the meaning of Code Sections 1563(a), 414(b) or 414(c), except that, in making any
such determination, fifty percent (50%) shall be substituted for eighty percent (80%) each place it appears under such
Code Sections and related regulations.
(b)
“ Beneficiary ”
shall mean the person or entity a Participant designates, by written instrument delivered to
the Company or an Affiliate, to receive the Participant’s benefits payable under this Plan after the Participant’
s death. If
a Participant fails to designate a Beneficiary, or if no designated Beneficiary survives the Participant, such benefits shall
be paid:
(1)
to the Participant’s surviving spouse; or
(2)
if there is no surviving spouse, to the Participant’s living descendants per stirpes; or
(3)
if there is neither a surviving spouse nor living descendants, to the Participant’s estate.
(c)
“ Benefit Category ” shall mean either Category 1 or Category 2.
(d)
“ Benefits Severance Period ” shall mean (1) for a Participant in Category 1, the one and one-
half years,
and (2) for a Participant in Category 2, the one year, beginning in each case on the Participant’
s Termination of
Employment.
(e)
“ Bonus Target ”
shall mean the annual incentive bonus payable to the Participant at the greater of the
target rate in effect on (1) the date a Change in Control occurs or (2) the date of the Participant’
s Termination of
Employment under the circumstances described in Section 2(a).
(f)
“ Cash Severance ” shall mean a lump-
sum cash payment equal to (1) for a Participant in Category 1, (i)
one hundred and fifty percent (150%) of the sum of the Participant’
s Salary and Bonus Target less (ii) the amount of the
Non
-
Compete Payment, and (2) for a Participant in Category 2, one hundred percent (100%) of the sum of the
Participant’s Salary and Bonus Target.
(g)
“ Cause ” shall exist where the Participant’
s Termination of Employment is by the Company or an Affiliate
upon (1) the Participant’
s willful and continued failure to substantially perform his or her employment duties (other than
any failure On Account of a Disability), after a written notice is delivered to the Participant by an executive officer of the
Company or an Affiliate which employs the Participant or the person in charge of the Human Resources function of the
Company or such Affiliate (or if the Participant is the Chief Executive Officer or President of the Company or Affiliate,
the Chairperson of the Committee) that specifically identifies the manner in which such executive officer or person in
charge of the Human Resources function (or such Chairperson) believes that the Participant has failed to substantially
perform his or her employment duties and after a reasonable opportunity is afforded to the Participant to cure his or her
performance failure(s), or (2) the Participant willfully engaging in misconduct that is materially injurious to the
Company or an Affiliate, monetarily or otherwise. For purposes of this definition, no act, or failure to act, on the
Participant’s part will be considered “willful”
unless done, or omitted to be done, by the Participant not in good faith and
without reasonable belief that his or her act or omission was in the best interest of the Company or an Affiliate.
Notwithstanding the above, the Participant will not be deemed to have had a Termination of Employment for Cause
unless and until he or she has been given a copy of the notice of termination from an executive officer or person in
charge of the Human Resources function (or in case of the Chief Executive Officer or President of the Company or an
Affiliate, the Chairperson of the Committee), after reasonable notice to the Participant and an opportunity for him or her,
together with his or her counsel, to be heard before (1) the Chief Executive Officer of the Company or an Affiliate, or (2)
if the Participant is an officer of the Company or an Affiliate who has been elected or appointed by the Board of
Directors of HoldCo or any other Affiliate, as the case may be, to such office, the Board of Directors of HoldCo or
Affiliate, or (3) in all cases not involving an elected officer and where the Chief Executive Officer of the Company or an
Affiliate otherwise directs or delegates this responsibility, the executive officer or person in charge of the Human
Resources function or a direct report to such Chief Executive Officer to whom such responsibility was delegated, finding
that in the good faith opinion of the Chief Executive Officer, or, in the case of an elected officer, finding that in the good
faith opinion of two-
thirds of the applicable Board of Directors, or, in all other cases, finding that in the good faith
opinion of the applicable executive officer or person in charge of the Human Resources function or a direct report to the