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Exhibit
10.50
EARTHLINK, INC.
2006 EQUITY AND CASH INCENTIVE PLAN
Restricted Stock Unit Agreement
No. of Restricted
Stock
Units Awarded Hereunder:
THIS RESTRICTED
STOCK UNIT AGREEMENT (this "Agreement") dated as of
the day
of ,
200 , 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.
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1.
Grant of Restricted Stock
Units. Pursuant
to the Plan, the Company,
on ,
200 (the "Date of Grant"), granted to the
Participant Restricted
Stock Units, each Restricted Stock Unit corresponding to one share
of the Common Stock of the Company (this "Award"). Subject to the
terms and conditions of the Plan, each Restricted Stock Unit
represents an unsecured promise of the Company to deliver, and the
right of the Participant to receive, one share of the Common Stock
of the Company at the time and on the terms and conditions set
forth herein. As a holder of Restricted Stock Units, 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:
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Stock Units that shall
become eligible to be earned and payable shall equal the aggregate
number of Restricted Stock Units set forth on Exhibit A multiplied by a
fraction, the numerator of which is the level [s] of [Free Cash Flow of the Company] [and] [EBITDA of New Edge
Holding Company] achieved during the
Company's fiscal year that includes the Date of Grant through the
time of the Change in Control (annualized based on the portion of
the fiscal year preceding the Change in Control) and the
denominator of which is the level [s] of [Free Cash Flow of the Company] [and] [EBITDA of New Edge
Holding Company] that the Committee set
forth on the attached Exhibit A for the Company's
fiscal year that includes the Date of Grant.
The outstanding
Restricted Stock Units that become eligible to be earned and
payable under either of the preceding paragraphs shall then become
earned and payable as to fifty percent (50%) of such eligible
Restricted Stock Units on each of the second and third
anniversaries of the Date of Grant, provided the Participant has
been continuously employed by, or providing services to, the
Company or an Affiliate from the Date of Grant until each such
anniversary of the Date of Grant.
For purposes of this
Award, (A) "EBITDA" means earnings before interest, taxes,
depreciation and amortization; (B) "Adjusted EBITDA" means
EBITDA excluding facility exit and restructuring costs, equity
method loss of affiliates, and gain (loss) on investments in other
companies; and (C) "Free Cash Flow" means Adjusted EBITDA less
capital expenditures and cash used to purchase customer bases. In
determining if the level [s]
of [Free Cash Flow of the
Company] [and] [EBITDA of New Edge Holding Company] [has]
[have] been achieved, the performance
targets shall be adjusted in the event of any unbudgeted
acquisition, divestiture or other unexpected fundamental change in
the business of the Company or an Affiliate that is material taken
as whole, as appropriate to fairly and equitably determine the
Restricted Stock Units to become eligible to be earned and payable
so as to preclude the enlargement or dilution of the Participant's
rights hereunder.
Notwithstanding any
other provision of this Agreement, none of the Performance-Based
Restricted Stock Units shall be eligible to become earned and
payable if the actual performance for the Company's fiscal year
that includes the Date of Grant (or the annualized actual
performance for the period through the Change in Control) does not
at least equal the minimum threshold targets set forth on the
attached Exhibit A
.
(ii)
Termination of Employment
After a Change in Control. Notwithstanding the foregoing, if at
any time on or after a Change in Control the Participant's
employment is terminated by the Company or an Affiliate for any
reason other than Cause and other than on account of disability or
death, then, to the extent not vested previously, the aggregate
number of the Service-Based Restricted Stock Units described in
Section 2(b)(i)(1) above shall become earned and payable in
full on termination of the Participant's employment, and the
aggregate number of the Performance-Based Restricted Stock Units
described in Section 2(b)(i)(2) above that are eligible to
become earned and payable shall become earned and payable in full
on termination of the Participant's employment.
(iii)
Position
Elimination. Notwithstanding the foregoing, if at
any time before a Change in Control but after the end of the
Company's fiscal year that includes the Date of Grant 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, then, to the extent not vested previously, the aggregate
number of the Service-Based Restricted Stock Units described in
Section 2(b)(i)(1) above shall become earned
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and payable in full on
termination of the Participant's employment as the result of a
position elimination, and the aggregate number of the
Performance-Based Restricted Stock Units described in
Section 2(b)(i)(2) above shall become earned and payable in
full on termination of the Participant's employment as the result
of a position elimination with respect to that number of the
Restricted Stock Units that correlates to the level
[s] of
[Free Cash Flow of the Company] [and] [EBITDA of
New Edge Holding Company] that
[is] [are] achieved
during the Company's fiscal year that includes the Date of Grant.
Notwithstanding the foregoing, if at any time before a Change in
Control and during the Company's fiscal year that includes the Date
of Grant 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 an
Affiliate, then, to the extent not vested previously, the aggregate
number of the Service-Based Restricted Stock Units described in
Section 2(b)(i)(1) above shall become earned and payable in
full on termination of the Participant's employment as the result
of a position elimination; however, none of the Performance-Based
Restricted Stock Units described in Section 2(b)(i)(2) above
shall become earned and payable on termination of the Participant's
employment as the result of a position elimination unless the
following sentence applies. If the Participant's employment is
terminated as a result of a position elimination during the
Company's fiscal year that includes the Date of Grant and a Change
in Control occurs thereafter and before the end of the Company's
fiscal year that includes the Date of Grant, then the aggregate
number of the Performance-Based Restricted Stock Units described in
Section 2(b)(i)(2) above that would have become eligible to be
earned and payable as a result of the Change in Control, assuming
the Participant had remained employed by, or providing services to,
the Company or an Affiliate from the Date of Grant until the Change
in Control, shall become earned and payable in full on the date of
the Change in Control. If the Participant's employment is
terminated as a result of a position elimination during
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