Exhibit 10.6
EARTHLINK, INC.
EQUITY PLAN FOR NON-EMPLOYEE DIRECTORS
(as amended effective
October 23, 2003)
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 Equity Plan for Non-Employee
Directors (as amended effective October 23, 2003) (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.
1.
Award of
Units . Pursuant to the Plan,
the Company, on
, 200 (the
“Date of Award”), awarded to the Participant
Restricted Stock Units, each Restricted Stock Unit corresponding to
one share of the Company’s $0.01 par value Common Stock (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 $0.01 par value common stock of the
Company (the “Common Stock”) 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:
(a)
Expiration
Date . This Award shall
expire at 11:59 p.m. on
,
20 (the “Expiration
Date”).
(b)
Vesting of
Award .
(i)
In
General . Except as otherwise
provided below, twenty five percent (25%) of the outstanding
Restricted Stock Units shall become nonforfeitable and payable on
the first annual anniversary of the Date of Award and an additional
twenty five percent (25%) of the Restricted Stock Units shall
become payable on each subsequent annual anniversary thereafter
until One Hundred percent (100%) of the Restricted Stock Units have
become nonforfeitable and payable, provided the Participant is
still serving as a Non-Employee Director at each such
time.
(ii)
Change in
Control . Outstanding
Restricted Stock Units that are not then nonforfeitable and payable
shall become nonforfeitable and payable immediately before the
consummation of a Change in Control, provided the Participant is
still serving as a Non-Employee Director at such time.
(iii)
Vesting
Date . Outstanding
Restricted Stock Units shall be forfeitable until they become
nonforfeitable and payable as described above. Each date upon
which Restricted Stock Units become nonforfeitable and payable
shall be referred to as a “Vesting Date” with respect
to such number of Restricted Stock Units.
(c)
Settlement of
Award . Subject to the terms
of this Section 2 and Section 3 below and except to the
extent the Participant defers receipt of such shares of Common
Stock pursuant to Section 9 below, the Company shall issue to
the Participant one share of Common Stock for each Restricted Stock
Unit that becomes nonforfeitable and payable under
Section 2(b) above and shall deliver to the Participant
certificates representing such Shares as soon as practicable after
the respective Vesting Date. As a condition to the settlement
of the Award, the Participant shall be required to pay any required
withholding taxes attributable to the Award in cash or cash
equivalent acceptable to the Board. The Company may allow the
Participant to satisfy any such applicable withholding taxes
(i) by allowing the Participant to deliver shares of Common
Stock that the Participant has owned for at least six months valued
at their Fair Market Value on the day preceding such date,
(ii) through a cashless exercise through a broker,
(iii) by such other medium of payment as the Company shall
authorize, or (iv) by any combination of the allowable methods
of payment set forth herein.
3.
Termination of
Award . Outstanding
Restricted Stock Units that have not become nonforfeitable and
payable prior to the Expiration Date shall expire and may not
become nonforfeitable and payable after such time.
Additionally, any Restricted Stock Units that have not become
nonforfeitable and payable on or before the termination of the
Participant’s service as a director of the Company shall
expire and may not become nonforfeitable and payable after such
time.
4.
Shareholder
Rights . The Participant shall
not have any rights as a shareholder with respect to shares of
Common Stock subject to any Restricted Stock Units until issuance
of the certificates representing such shares of Common Stock.
The Company may include on any certificates representing shares of
Common Stock issued pursuant to this Award such legends referring
to any representations, restrictions or any other applicable
statements as the Company, in its discretion, shall deem
appropriate.
5.
Nontransferability
. Except as
described below, this Award is nontransferable except by will or
the laws of descent and distribution. If this Award is
transferred by will or the laws of descent and distribution, the
Award must be transferred in its entirety to the same person or
persons or entity or entities. Notwithstanding the foregoing,
the Participant, at any time prior to the Participant’s
death, may transfer all or any portion of this Award to a Permitted
Transferee. In that event, the Permitted Transferee will be
entitled to all the rights of the Participant with respect to the
transferred Award (except that such Permitted Transferee may not
assign the Award other than by will or the laws of descent and
distribution), and such portion of the Award shall continue to be
subject to all of the terms, conditions and restrictions applicable
to the Award as set forth herein and in the Plan immediately prior
to the effective date of the transfer. Any such transfer will
be permitted only if (i) the Participant does not receive any
consideration for the transfer and (ii) the Board expressly
approves the transfer. Any such transfer shall be evidenced
by an appropriate written document that the Participant executes
and the Participant shall deliver a copy thereof to the Board on or
prior to the effective date of the
2
transfer. No right or interest
of the Participant in this Award shall be liable for, or subject
to, any lien, liability or obligation of the
Participant.
6.
Representation
. In
connection with the acquisition of this Award, the Participant
represents and warrants that it is the Participant’s intent
to continue to serve as a director of the Company for the remainder
of Participant’s term as a director during which this Award
is granted.
7.
Cash
Dividends . For so long as the
Participant holds outstanding Restricted Stock Units, if the
Company pays any cash dividends on its Common Stock, then the
Company in its discretion (a) may pay the Participant in cash
for each outstanding Restricted Stock Unit covered by this Award as
of the record date for such dividend, less any required withholding
taxes, the per share amount of such dividend or (b) may
increase the number of outstanding Restricted Stock Units covered
by this Award by the number of Restricted
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