Earthlink 2008 Annual Report Download - page 153

(5) The Employer or an Affiliate requiring the Employee to be based more than thirty-five (35) miles from the location
where he or she is based immediately prior to a Change in Control of the Employer, except for travel on the Employer’s or Affiliate’s business
that is required or necessary to performance of his or her job and substantially consistent with his or her business travel obligations prior to the
Change in Control of the Employer, or if the Employee consents to that relocation, the failure by the Employer or an Affiliate to pay (or
reimburse the Employee for) all reasonable moving expenses incurred by the Employee or to indemnify the Employee against any loss realized
in the sale of his or her principal residence in connection with that relocation; or
(6) The failure by the Employer or an Affiliate to continue in effect any material retirement or compensation plan,
performance share plan, stock option plan, life insurance plan, health and accident plan, disability plan or another benefit plan in which the
Employee is participating immediately prior to a Change in Control of the Employer (or provide plans providing him or her with substantially
similar benefits), the taking of any action by the Employer or an Affiliate that would adversely affect the Employee’s participation or materially
reduce his or her benefits under any of those plans or deprive him or her of any material fringe benefit enjoyed by the Employee immediately
prior to a Change in Control of the Employer, or the failure by the Employer or an Affiliate to provide the Employee with the number of paid
vacation days to which he or she is then entitled in accordance with normal vacation practices in effect immediately prior to a Change in Control
of the Employer; or
(7) The failure by the Employer or an Affiliate to obtain the assumption of the agreement to perform this Plan by any
successor; or
(8) Any purported Termination of Employment that is not effected pursuant to a notice of termination satisfying the
requirements of a Termination of Employment for “Cause.”
(p) “ Incumbent Board ” means a Board of Directors at least a majority of whom consist of individuals who either are
(a) members of the Employer’s Board of Directors as of April 19, 2001 or (b) members who become members of the Employer’s Board of
Directors subsequent to such date whose election, or nomination for election by the Employer’s shareholders, was approved by a vote of at least
sixty percent (60%) of the directors then comprising the Incumbent Board (either by a specific vote or by approval of the proxy statement of the
Employer in which that person is named as a nominee for director, without objection to that nomination), but excluding, for that purpose, any
individual whose initial assumption of office occurs as a result of an actual or threatened election contest (within the meaning of Rule 14a-11 of
the Exchange Act) with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board of Directors.
(q) “ On Account of Disability ” shall exist where the Employee’s Termination of Employment results from the Employee being
“Disabled” as a result of a “Disability” in accordance with the policies of the Employer or Affiliate that employed the Employee in effect at the
time of the Change in Control of the Employer.
(r) “ Person ” means any individual, entity or group within the meaning of Section 13(D)(3) or 14(d)(2) of the Exchange Act.
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