Earthlink 2013 Annual Report Download - page 123

2. DEFINITIONS
2.1
Definitions . Capitalized terms used in the Plan shall have the following meanings:
“ Adjusted EBITDA ”
means earnings (or losses) from continuing operations before interest income or expense
and other, net, income taxes, depreciation and amortization, excluding stock-
based compensation expense, gain (loss) on
investments, net, impairment of goodwill and intangible assets, and restructuring, acquisition and integration-
related
costs. To the extent any Bonus Award to be paid to any Participant pursuant to the Plan is paid (i) in cash, the calculation
of Adjusted EBITDA shall include any compensation expense attributable to the Bonus Awards paid in cash or (ii) in
shares of Common Stock, the calculation of Adjusted EBITDA shall exclude any compensation expense attributable to
the Bonus Awards paid in shares of Common Stock.
“ Affiliate ”
means any entity that is part of a controlled group of corporations or is under common control with
HoldCo 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.
“ Bonus Award ” means (i) for each Participant who is not a Management Participant, the Participant’
s
Performance Bonus or such lesser amount as the Committee in its sole discretion may determine as of a result of the
failure by the individual Participant to achieve desired individual performance levels for the Bonus Period and (ii) for
each Management Participant, the sum of (a) the Management Participant’
s Performance Bonus or such lesser amount as
the Committee in its sole discretion may determine as of a result of the failure by the individual Management Participant
to achieve desired individual performance levels for the Bonus Period and (b) the Management Participant’
s
Discretionary Bonus, if any, for the Bonus Period.
“ Bonus Period ”
means the period beginning January 1 and ending December 31 of the calendar year, in respect
of which the Corporate Performance Objectives are measured and the Participants’
Bonus Awards, if any, are to be
determined.
“ Cause ”
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, Cause means (i) the Participant’
s willful and repeated failure to comply with the lawful
directives of the Board of Directors of HoldCo or any of its Affiliates or any supervisory personnel of the Participant; (ii)
any criminal act or act of dishonesty or willful misconduct by the Participant that has a material adverse effect on the
property, operations, business or reputation of HoldCo or any of its Affiliates; (iii) the material breach by the Participant
of the terms of any confidentiality, non-competition, non-
solicitation or other such agreement that the Participant has
with HoldCo or any of its Affiliates or (iv) acts by the Participant of willful malfeasance or gross negligence in a matter
of material importance to HoldCo or any of its Affiliates.
" Change in Control " means the occurrence of any of the following events:
(a) the accumulation in any number of related or unrelated transactions by any person of beneficial
ownership (as such term is used in Rule 13d-
3 promulgated under the Securities Exchange Act of 1934, as amended) of
more than fifty percent (50%) of the combined voting power of HoldCo’
s voting stock; provided that, for purposes of
this subsection (a), a Change in Control
2