Earthlink 2007 Annual Report Download - page 148

employee" to resign employment with the Company or its Affiliates, or (ii) 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 and its Affiliates and who is (x) a member of
executive management, (y) a corporate officer of the Company or any of its Affiliates, or (z) any employee of the Company or
any of its Affiliates engaged in product or service development or product or service management.
(b) In the event the Participant receives the special enhanced vesting set forth in Section 2(b)(iii) above, the Participant also
agrees that during the Participant's employment, and for a period of eighteen (18) calendar months following termination of
Participant's employment, the Participant shall not perform within the fifty (50) states of the United States of America any
services which are in competition with the "business" of the Company during Participant's employment, or following Participant's
termination of employment, any services which are in competition with a "material" line of "business" engaged in by the
Company at the time of Participant's termination of employment which are the same as or similar to those services Participant
performed for the Company or any Affiliate; provided, however, that if the other business competitive with the business 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 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 Agreement, "material" means a line of business that
represents 20% or more of the Company's consolidated revenues or adjusted EBITDA for the four fiscal quarters immediately
preceding the Participant's termination of employment. As used herein, "business" means the business of providing integrated
communication services and related value added services to individual customers and business customers.
(c) The enhanced vesting pursuant to Section 2(b)(iii) above (along with the related cash dividends under Section 6 above)
are conditioned upon the Participant's compliance with the provisions of this Section 17. In the event the Participant shall
materially breach the provisions of this Section 17 and not cure or cease (as appropriate) such material breach within ten (10) days
of receipt of notice thereof from the Company, the vesting above shall terminate and Participant shall return to the Company all of
the shares of Common Stock and cash dividends received in connection therewith. Termination of such vesting and payments
shall not be the Company's sole and exclusive remedy for a breach of this Section 17. In addition, the Company shall be entitled
to damages and injunctive relief to enforce this Section 17 in the event of a breach by the Participant. Additionally, in the event
the Participant materially breaches this provision, the Participant shall be required to repay to the Company all amounts
previously paid pursuant to Section 2(b)(iii) and the related cash dividends paid pursuant to Section 6 above.
18. Section 409A. Notwithstanding any other provision of this Agreement, it is intended that payments hereunder will not be
considered deferred compensation within the meaning of Section 409A of the Code. For purposes of this Agreement, all rights to
payments hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by
Section 409A of the Code. Payments hereunder are intended to satisfy the exemption from Section 409A of the Code for "short-term
deferrals." Notwithstanding the preceding, neither the Company nor any Affiliate shall be liable to the Participant or any other person if
the Internal Revenue Service or any court or other authority having jurisdiction over such matter determines for any reason that any
payments hereunder are subject to taxes, penalties or interest as a result of failing to be exempt from, or comply with, Section 409A of
the Code.
19. Governing Law. This Agreement shall be governed by the laws of the State of Delaware, except to the extent federal law
applies.