Exhibit 10.3
EARTHLINK, INC.
2006 EQUITY AND CASH INCENTIVE PLAN
Executive Retention Incentive Award
Agreement
Stated Dollar Value of Executive
Retention Incentive Award
Granted Hereunder:
$
THIS EXECUTIVE RETENTION INCENTIVE
AWARD AGREEMENT (this “Agreement”) dated as of the 17th
day of February, 2009, between EarthLink, Inc., a Delaware
corporation (the “Company”), and
(the “Participant”) is made pursuant and subject to the
provisions of the Company’s 2006 Equity and Cash Incentive
Plan (the “Plan”), a copy of which is attached
hereto. All terms used herein that are defined in the Plan
have the same meaning given them in the Plan, except that the term
“Change in Control” shall have the same meaning given
it in the EarthLink Inc. Change-In-Control Accelerated Vesting and
Severance Plan (the “CIC Plan”).
1.
Grant of
Incentive Award . Pursuant to the Plan,
the Company, on February 3 2009 (the “Date of
Grant”), granted to the Participant an Incentive Award (as
defined in the Plan) with a stated dollar value of
$
(this “Award”). Subject to the terms and
conditions of the Plan, this Award represents an unsecured promise
of the Company to pay, and the right of the Participant to receive,
up to
$ ,
payable in cash, shares of the Common Stock of the Company or a
combination thereof, at the time and on the terms and conditions
set forth herein. As the holder of the Award, the Participant
has only the rights of a general unsecured creditor of the
Company.
2.
Terms and
Conditions . This Award is subject
to the following terms and conditions:
(a)
Vesting of
Award .
(i)
In
General .
(A)
This Award shall become earned and
payable as to fifty percent (50%) of its stated dollar value as of
the end of 2009, provided the Participant has been continuously
employed by, or providing services to, the Company or an Affiliate
from the Date of Grant through the end of 2009.
(B)
The remaining fifty percent (50%)
of the stated dollar value of the Award shall become earned and
payable in full as of the end of 2010, provided the Participant has
been continuously employed by, or providing services to, the
Company or an Affiliate from the Date of Grant through the end of
2010.
(ii)
Termination of
Employment On or After a Change in Control .
(A)
Notwithstanding the foregoing, if
at any time on or after a Change in Control the Participant’s
employment is terminated (1) by the Company or an Affiliate
for any reason other than Cause (as such term is
defined
in the CIC Plan) and other than
“On Account of Disability” (as such term is defined in
the CIC Plan) or death or (2) by the Participant “For
Good Reason” (as such term is defined in the CIC Plan), then,
to the extent the outstanding Award has not become earned and
payable in full, one hundred percent (100%) of the remaining stated
dollar value of the outstanding Award shall become earned and
payable in full as of the end of the year in which occurs the
termination of the Participant’s employment.
(iii)
Position
Elimination .
(A)
Notwithstanding the foregoing, if
at any time before a Change in Control and during 2009, the
Participant’s employment is terminated by the Company or an
Affiliate as the result of a position elimination, and the
Participant is entitled to receive benefits under any position
elimination and severance plan maintained by the Company or any
Affiliate, the Award shall become earned and payable, as of the end
of 2009, with respect to that percentage of its stated dollar value
that equals fifty percent (50%) multiplied by a fraction, the
numerator of which equals the number of full or partial months of
2009 during which the Participant remained continuously employed
by, or providing services to, the Company or an Affiliate and the
denominator of which is twelve (12). Notwithstanding the
immediately preceding sentence, however, if the Participant’s
employment is terminated as a result of a position elimination
during 2009 (and the Participant is eligible to receive benefits as
described above) and a Change in Control occurs thereafter and
before the end of 2009, one hundred percent (100%) of the remaining
stated dollar value of the Award shall become earned and payable in
full as of the end of 2009.
(B)
Notwithstanding the foregoing, if
at any time before a Change in Control and during 2010, the
Participant’s employment is terminated by the Company or an
Affiliate as a result of a position elimination, and the
Participant is entitled to receive benefits under any position
elimination severance plan maintained by the Company or any
Affiliate, the Award shall become earned and payable, as of the end
of 2010, with respect to that percentage of its stated dollar value
that equals the remaining fifty percent (50%) multiplied by a
fraction, the numerator of which is the number of full or partial
months of 2010 during which the Participant remained continuously
employed by, or providing services to, the Company or an Affiliate
and the denominator of which is twelve (12). Notwithstanding the
immediately preceding sentence, however, if the Participant’s
employment is terminated as a result of a position elimination
during 2010 (and the Participant is eligible to receive benefits as
described above) and a Change in Control occurs thereafter and
before the end of 2010, one hundred percent (100%) of the remaining
stated dollar value of the Award shall become earned and payable in
full as of the end of 2010.
(iv)
Vesting
Date . The Award shall be
forfeitable until it becomes earned and payable as described
above. Each date upon which the Award or any
portion
2
thereof becomes
earned and payable shall be referred to as a “Vesting
Date” with respect to the applicable stated dollar amount of
the Award.
(b)
Settlement of
Award . Subject to the terms
of this Section 2 and Sections 3 and 15 below, the Company
shall pay to the Participant the stated dollar value of the Award
that has become earned and payable under
Section 2(a) above as the Company may determine within
the 90 days following the applicable Vesting Date. Payment
shall be made in a single lump sum in cash, shares of Common Stock
of the Company (to the extent available for payment under the Plan)
or any combination thereof, as the Company in its sole discretion
shall determine. As a condition to the settlement of the
Award, the Participant shall be required to pay any required
withholding taxes attribut
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