Earthlink 2014 Annual Report Download - page 135

services which are in competition with a Material line of the Business of the Company or an Affiliate engaged in
by the Company or an Affiliate at the time of his or her Termination of Employment, and which are the same as or
similar to those services he or she performed for the Company or an Affiliate during his or her employment; provided,
however, if the other business competitive with the Business of the Company has multiple lines, divisions, segments or
units, some of which are not competitive with the Business of the Company, nothing herein shall prevent the Participant
from being employed by or providing services to such line, division, segment or unit that is not competitive with the
Business of the Company. For purposes of this Section 8(a), “Business of the Company”
means the business of
providing integrated communication services and related value added services to individual consumers and business
customers. For purposes of this Section 8(a), “Material”
means a line of the Business of the Company that represents
20% or more of the aggregate Company’s and Affiliates’
consolidated revenues or adjusted earnings before taxes,
interest, depreciation and amortization for the four full fiscal quarters immediately preceding the Participant’
s
Termination of Employment.
(b)
Non-Recruitment
. As a condition to being eligible to participate in the Plan and receiving any payments
and benefits thereunder, a Category 1 Participant agrees that (i) during his or her employment and (ii) for a period of 18
months following Termination of Employment under the circumstances described in Section 3(a) above, he or she will
not, directly or indirectly: (1) solicit, induce, recruit, or cause a Restricted Employee to resign his or her employment
with the Company or an Affiliate, or (2) participate in making hiring decisions, encourage the hiring of, or aid in the
hiring process of a Restricted Employee on behalf of any employer other than the Company and its Affiliates. As used
herein, “Restricted Employee”
means any employee of the Company or its Affiliates with whom the Participant had
material business-
related contact while performing services for the Company or an Affiliate and who is: (1) a member of
executive management; (2) a corporate officer of the Company or any Affiliate; or (3) any employee of the Company or
any Affiliate engaged in product or service development or product or service management.
(c)
Effect of Breach
. The obligation of the Company or an Affiliate to continue to fulfill its payment and
benefit obligations to a Category 1 Participant pursuant to Sections 3 and 4 is conditioned upon the Participant’
s
compliance with the provisions of this Section 8. Accordingly, in the event that a Category 1 Participant shall materially
breach the provisions of this Section 8, the Company’s or an Affiliate’
s obligations under Sections 3 and 4 shall
terminate. Additionally, the breaching Category 1 Participant shall promptly refund to the Company or the applicable
Affiliate a pro-
rata portion of (i) the amounts previously paid to or on behalf of him or her pursuant to Section 3 and (ii)
the stock or other amounts earned as the result of the accelerated vesting in Section 4 equal to the product of (i) the
amounts previously paid to or on behalf of him or her pursuant to Section 3 and (ii) the stock or other amounts earned as
the result of the accelerated vesting in Section 4 multiplied by a fraction, the numerator of which is the number of days
in the 18 months following the Termination of Employment remaining after the material breach of this Section 8 and the
denominator of which is the number of days in the 18 months following the termination of Employment. Termination of
the Company’s or an Affiliate’
s obligations under Sections 3 and 4 and recoupment of the amounts and benefits
previously paid shall not be the Company’s or an Affiliate’
s sole and exclusive remedy for a breach of this Section 8. In
addition to the remedy provided in this Section 8(d), the Company and an Affiliate, if applicable, shall be entitled to seek
damages and injunctive relief to enforce this Section 8, in the event of a breach by the Participant of this Section 8.
(d)
Compensation for Restrictive Covenants . In consideration of a Category 1 Participant’
s obligations under
this Section 8, upon the Category 1 Participant’
s Termination of Employment under the circumstances described in
Section 3(a) above, he or she shall be paid the Non-
Compete Payment. Such amount shall be paid in a lump sum as soon
as administratively practicable (and within thirty (30) days) after the Category 1 Participant’
s Termination of
Employment, subject to any required delays under Sections 3(a)(4) or 5 above.
The Committee shall interpret and administer the Plan. The Committee shall establish rules for the administration
of the Plan. The Committee shall have the discretionary authority to construe the terms of the Plan and shall determine
all questions arising in its administration, interpretation and application, including those concerning eligibility for
benefits. All determinations of the Committee shall be final and binding on all Participants and Beneficiaries. The
Committee may appoint a sub-
committee or an agent or other representative to act on its behalf and may delegate to such
sub-committee or agent or representative any of its powers hereunder. Any action that such sub-
committee or agent or
9.
Administration of the Plan.