{"id":40044,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/key-employee-compensation-continuation-plan.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"key-employee-compensation-continuation-plan","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/key-employee-compensation-continuation-plan.html","title":{"rendered":"Key Employee Compensation Continuation Plan"},"content":{"rendered":"<pre>                               EARTHLINK NETWORK, INC.\n                    KEY EMPLOYEE COMPENSATION CONTINUATION PLAN\n                              SUMMARY PLAN DESCRIPTION\n                                          \n                                     ARTICLE 1\n                                          \n                             ESTABLISHMENT OF THE PLAN\n                             -------------------------\n\n     1.1  EarthLink Network, Inc. (the 'Company') hereby establishes the \nEarthLink Network, Inc. Key Employee Compensation Continuation Plan (the \n'Plan') effective as of January 16, 1998.  The purpose of the Plan is to \nprovide severance pay to key employees in the event that the Company \nterminates the employment of such employees under certain limited \ncircumstances as described herein.\n\n     1.2  The Company intends for this Plan to constitute an employee welfare \nbenefit plan within the meaning of Section 3(1) of the Employee Retirement \nIncome Security Act of 1974, as amended ('ERISA'), and a severance pay plan \nwithin the meaning of Department of Labor (DOL) Regulation Section \n2510.3-2(b).\n\n                                     ARTICLE 2\n                                          \n                                    DEFINITIONS\n                                    -----------\n\n     2.1  'BOARD OF DIRECTORS' means the Board of Directors of the Company.\n\n     2.2  'CHANGE OF CONTROL' means (i) a sale or exchange of all or \nsubstantially all the assets of the Company, (ii) the liquidation or \ndissolution of the Company or (iii) any merger, consolidation, reorganization \nor other transaction or event that results in a Change of Ownership in the \nCompany (as defined in the following sentence).  For purposes of this Plan, a \n'Change of Ownership' means (i) the acquisition by any individual, entity or \ngroup (hereinafter referred to as a 'person') of beneficial ownership of or \nthe right to vote 25 percent or more of the then outstanding stock of the \nCompany; provided, however, that the following acquisitions shall not \nconstitute a Change in Ownership:  (a) any acquisition of stock directly from \nthe Company (excluding any acquisition by a conversion privilege), (b) any \nacquisition by the Company, (c) any acquisition by any employee benefit plan \n(or related trust) that the Company sponsors or maintains or (d) any \nacquisition that occurred before the effective date of the Plan, (ii) \nindividuals who constitute the Board of Directors of the Company as of the \neffective date of the Plan cease for any reason to constitute at least a \nmajority of the Board of Directors of the Company or its successor; provided, \nhowever, that any individual becoming a director after the effective date of \nthis Plan, whose election or nomination for election by the Company's \nshareholders was approved by a vote of at least the majority of the directors \ncomprising the Board of Directors of the Company as of the effective date of \nthe Plan will be considered as though such individual was a member of the \nBoard of Directors as of the effective date of the Plan, and (iii) any \nreorganization, merger, consolidation or similar event, unless the persons \nwho had beneficial ownership of and the right to vote all of the outstanding \nshares of stock of the Company before such event beneficially own and have \nthe right to vote the outstanding shares of stock of the Company resulting \nfrom such event in substantially the same proportion as before such event.\n\n     2.3  'COMPANY' means EarthLink Network, Inc. or any of its subsidiaries \nor affiliates that adopt the Plan, except that the Company in the context of \nthe Plan Administrator, the Board of Directors and a Change of Control shall \nonly mean EarthLink Network, Inc.\n\n     2.4  'DISABILITY' means the permanent and total disability of the \nParticipant such that he is unable to engage in any substantial gainful \nactivity by reason of any medically-determinable physical or\n\n\n\nmental impairment that can be expected to result in death or that has lasted \nor can be expected to last for a continuous period of not less than 12 \nmonths.  The Participant will not be considered to be permanently and totally \ndisabled unless he furnishes proof of the existence of such disability in \nsuch form and manner and based on competent medical advice, and at such \ntimes, as the Plan Administrator may reasonably require.\n\n     2.5  'EMPLOYEE' means any person whom the Company employs for purposes \nof the Federal Insurance Contributions Act.\n\n     2.6  'FOR CAUSE' means the involuntary termination of employment of the \nParticipant because of (i) the willful and continued failure by the \nParticipant to perform his duties at the Company, (ii) misconduct by the \nParticipant that is injurious to the Company, financially or otherwise, (iii) \ncommission by the Participant of an act of fraud or dishonesty relating to \nand adversely affecting the Company, (iv) conviction of the Participant of a \nfelony in connection with his employment with the Company, or (v) the \nhabitual failure of the Participant, after written notice specifying such \nfailure and a reasonable opportunity to cure such failure having passed, to \nperform his employment duties at the Company in a satisfactory manner.\n\n     2.7  'FOR GOOD REASON' means the voluntary termination of employment by \nthe Participant because and within 90 days of (i) a substantial diminution in \nthe then-current duties, benefits and responsibilities of the Participant at \nthe Company, (ii) a substantial diminution in the then-current base salary or \nusual bonuses of the Participant, (iii) requiring the Participant to be based \nanywhere other than thirty miles of Participant's then-current location, (iv) \nthe failure by the Company to continue in effect any material benefit or \ncompensation plan, life insurance plan, health and accident plan or \ndisability plan in which Participant is participating, unless such benefit or \ncompensation plan, life insurance plan, health and accident plan, disability \nor similar plan is replaced with a comparable plan in which Participant will \nparticipate or which will provide Participant with comparable benefits, (v) \nthe failure of the Company to provide the Participant with the number of paid \nvacation days to which Participant is normally entitled in accordance with \nthe normal vacation policy of the Company, or (vi) any action by the Company \nthat adversely effects in a material way the Participant's participation in \nor materially reduces Participant's benefits under any of such benefit as \ncompensation plans.\n\n     2.8  'PARTICIPANT' means any Employee selected for participation in the \nPlan.\n\n     2.9  'PLAN ADMINISTRATOR' means the Compensation Committee of the Board \nof Directors.\n\n     2.10 'WITHOUT CAUSE' means the involuntary termination of employment of \nthe Participant due to lack of work at the Company or any other reason that \nthe Board of Directors determines is in the best interest of the Company \nother than For Cause or a Disability.\n\n                                     ARTICLE 3\n                                          \n                         ELIGIBILITY FOR PLAN PARTICIPATION\n                         ----------------------------------\n\n     Each Employee of the Company shall become a Participant in the Plan as \nof the date the Plan Administrator selects the Employee for participation.  \nExcept as set forth in Article 8 of the Plan, the Plan Administrator in its \nsole and unfettered discretion can terminate the participation in the Plan of \nany Employee at any time.  The Plan Administrator hereby selects the \nEmployees listed on EXHIBIT A for participation in the Plan immediately as of \nthe date of its adoption.\n\n                                        -2-\n\n\n\n                                     ARTICLE 4\n                                          \n                         CONDITIONS FOR PAYMENT OF BENEFITS\n                         ----------------------------------\n\n     4.1  A Participant shall be entitled to severance pay under the Plan \nonly if the Company terminates his employment Without Cause or the \nParticipant voluntarily terminates his employment For Good Reason.  A \nParticipant shall not be entitled to severance pay under the Plan if he (i) \nresigns other than For Good Reason, (ii) is terminated For Cause, (iii) dies \nor (iv) voluntarily or involuntarily terminates employment as a result of a \nDisability.\n\n                                     ARTICLE 5\n                                          \n                            SALARY CONTINUATION BENEFITS\n                            ----------------------------\n\n     5.1  The amount of severance pay to which a Participant will be entitled \nwill equal (i) 50 percent of the Participant's then-current base salary at \nthe Company, (ii) 50 percent of the amount of any commissions the Company \npaid to the Participant in the 12-month period ending on the termination of \nParticipant's employment, (iii) 50 percent of the amount of any bonuses the \nCompany paid to the Participant in the 12-month period ending as of the date \nof the termination of the Participant's employment, (iv) 50 percent of the \nvalue of any perquisites to which the Participant was entitled from the \nCompany in the 12-month period ending as of the termination of the \nParticipant's employment, including but not limited to the value of any \nliving allowances, personal travel allowances, auto lease\/rental payments and \nsimilar amounts, (v) an amount equal to the premiums needed for six months of \nCOBRA coverage for the Participant, the Participant's spouse and the \ndependents of the Participant if they elect COBRA coverage, and (vi) an \namount equal to the premiums needed for the six months following the \ntermination of Participant's employment to purchase life insurance and \ndisability insurance comparable to the amount of such insurance that the \nParticipant had at termination of employment.\n\n     5.2  Except as set forth in Section 5.3, the aggregate severance \npayments described in Section 5.1 above shall be made to the Participant in \none lump sum payment within 30 days of Participant's termination of \nemployment with the Company.\n\n     5.3  Severance payments will be made only after the Participant executes \na release and waiver containing such terms and conditions as the Plan \nAdministrator may reasonably require.\n\n                                     ARTICLE 6\n\n                                CLAIMS FOR BENEFITS\n                                -------------------\n\n     6.1  In the event that a Participant desires to make a claim with \nrespect to any of the benefits provided hereunder, the Participant shall \nsubmit evidence satisfactory to the officer of the Company that the Plan \nAdministrator designates to receive claims.  Any claim with respect to any of \nthe benefits provided under the Plan shall be made in writing within 30 days \nof the event that the Participant is asserting constitutes a termination of \nemployment. Failure by the Participant to submit his claim within the 30-day \nperiod shall bar the Participant from any claim for benefits under the Plan \nas a result of the occurrence of that event.\n\n     6.2  In the event that a claim of a Participant is wholly or partially \ndenied, the Participant or his duly authorized representative may appeal the \ndenial of the claim to the Board of Directors or to any committee that the \nBoard of Directors designates at any time within 90 days after the \nParticipant receives written notice from the Company of the denial of the \nclaim.  In connection therewith, the Participant or his duly authorized \nrepresentative may request a review of the denied claim, may review pertinent \ndocuments, and may submit issues and comments in writing.  Upon receipt of an \nappeal, the Board of\n\n                                       -3-\n\n\n\nDirectors or such designated committee shall make a decision with respect to \nthe appeal and, not later than 60 days after receipt of a request for review, \nshall furnish the Participant with a decision on review in writing, including \nthe specific reasons for the decision written in a manner calculated to be \nunderstood by the Participant, as well as specific references to the \npertinent provisions of this Plan upon which the decision is based.\n\n     6.3  No benefit that shall be payable under the Plan to any Participant \nshall be subject in any manner to anticipation, alienation, sale, transfer, \nassignment, pledge, encumbrance or charge, and any attempt to do so shall be \nvoid.  No benefit shall in any manner be liable for, or subject to, the \ndebts, contracts, liabilities, engagements or torts of any Participant, nor \nshall it be subject to attachment or legal process.\n\n     6.4  The Plan shall not give any Employee or Participant any right or \nclaim except to the extent that the right is fixed specifically under the \nPlan.  The establishment of the Plan shall not be construed to give any \nEmployee or Participant a right to be continued in the employ of the Company \nor as interfering with the right of the Company to terminate the employment \nof any Employee or Participant at any time.\n\n                                     ARTICLE 7\n\n                      ADMINISTRATION AND FINANCING OF THE PLAN\n                      ----------------------------------------\n\n     7.1  The Plan Administrator shall interpret and administer the Plan.  \nThe Plan Administrator shall establish rules for the administration of the \nPlan. The Plan Administrator shall have discretionary authority to construe \nthe terms of the Plan and shall determine all questions arising in its \nadministration, interpretation and application, including those concerning \neligibility for benefits.  All determinations of the Plan Administrator shall \nbe final and binding on all Employees and Participants.  The Plan \nAdministrator may appoint a committee or an agent or other representative to \nact on its behalf, and may delegate to such committee or agent or \nrepresentative any of the powers of the Plan Administrator.  Any action that \nsuch committee or agent or representative takes shall be considered to be the \naction of the Plan Administrator, when the committee or agent or \nrepresentative is acting within the scope of the authority that the Plan \nAdministrator delegates it, and the Plan Administrator shall be responsible \nfor all such actions.\n\n     7.2  The Company that employs the Participant on his last day of \nemployment will fund the Plan by payments made from its general assets.\n\n                                     ARTICLE 8\n\n                             AMENDMENT AND TERMINATION\n                             -------------------------\n\n     The Board of Directors in accordance with applicable corporate law \nreserves the right at any time to amend or terminate the Plan, except that, \nafter a Change of Control has occurred, the Plan Administrator may not \nterminate the participation in the Plan of any Participant who is in the Plan \nas of the Change of Control and the Board of Directors may not amend or \nterminate the Plan until all Participants in the Plan as of the Change of \nControl terminate employment.\n\n                                        -4-\n\n\n\n                                     ARTICLE 9\n\n                              MISCELLANEOUS PROVISIONS\n                              ------------------------\n\n     9.1  The failure of the Plan Administrator to enforce any of the \nprovisions of the Plan shall in no way be construed to be a waiver of these \nprovisions, nor in any way to affect the validity of the Plan or any part \nthereof, or the right of the Plan Administrator thereafter to enforce every \nprovision.\n\n     9.2  The benefits provided under this Plan are in addition to and not in \nlieu of any other similar benefits that the Company may specify from time to \ntime in any employee handbook or in any other agreement between the Company \nand the Participant.  Additionally, the benefits that this Plan provides \nshall not be reduced or offset by any other payments or benefits that the \nParticipant may receive from any other third party or other employer after \nthe termination of the Participant's employment with the Company.\n\n     9.3  Article headings are for convenience only and the language of the \nPlan itself will be controlling.\n\n     9.4  This Plan shall be unfunded.  Any liability of the Company under \nthe Plan shall be based solely on contractual obligations, if any, that are \ncreated hereunder.  No such liability of the Company shall be deemed to be \nsecured by any property of the Company.\n\n     9.5  Whenever any benefits become payable under the Plan, the Company \nshall have the right to withhold such amounts as are sufficient to satisfy \nany federal, state or local withholding tax requirements.\n\n     9.6  The Plan shall be construed and administered under the laws of the \nState of Delaware.\n\n     IN WITNESS WHEREOF, the Company has caused the Plan to be executed on \nJanuary 16, 1998.\n\n                                 EARTHLINK NETWORK, INC.\n\n                                 By: \/s\/  Charles G. Betty\n                                    ------------------------------------\n\n                                 Title: President and CEO\n                                       ---------------------------------\n\n\n                                        -5-\n\n\n\n                               EARTHLINK NETWORK, INC.\n                    KEY EMPLOYEE COMPENSATION CONTINUATION PLAN\n                              SUMMARY PLAN DESCRIPTION\n\n\nNAME OF PLAN:\n\nEarthLink Network, Inc. Key Employee Compensation Continuation Plan\n\nNAME, ADDRESS, AND TELEPHONE NUMBER OF SPONSOR AND PLAN ADMINISTRATOR:\n\nEarthLink Network, Inc. ('Company')\n3100 New York Drive\nPasadena, California  91107\n(626) 296-2400\n\nThe Plan Sponsor appoints the Plan Administrator to administer the Plan.\n\nEMPLOYER IDENTIFICATION NUMBER:\n\n95-4481766\n\nEFFECTIVE DATE:\n\nJanuary 16, 1997\n\nPLAN YEAR:\n\nCalendar year\n\nFISCAL YEAR FOR MAINTAINING PLAN RECORDS:\n\nCalendar Year\n\nTYPE OF WELFARE PLAN:\n\nThe Plan is a severance pay plan that provides benefits to certain employees \nin the event of termination of their employment due to certain specified \nreasons.\n\nTYPE OF ADMINISTRATION OF THE PLAN:\n\nThe Compensation Committee of the Company's Board of Directors is the Plan \nAdministrator and administers the Plan as described in Article 7.\n\nPROVISIONS FOR ELIGIBILITY REQUIREMENTS:\n\nThe Plan describes eligibility requirements in Article 3.\n\n\n\n\nDESCRIPTION OF PLAN BENEFITS:\n\nThe Plan describes conditions for payment of benefits in Article 4 and the \namount of such benefits in Article 5.\n\nSOURCES OF CONTRIBUTIONS TO THE PLAN AND FUNDING MEDIUM:\n\nThe general assets of the Company that employs the Participant shall fund the \nseverance pay from the Plan.\n\nPROCEDURES FOR PRESENTING CLAIMS AND REDRESS OF DENIED CLAIMS:\n\nArticle 6 provides detailed instructions for filing a claim and redress of a \ndenied claim.\n\nAGENT FOR SERVICE OF PROCESS:\n\nEarthLink Network, Inc.\n3100 New York Drive\nPasadena, California  91107\nAttn.:  Ms. Kirsten L. Hansen\n\nIn addition to the agent listed above, service of process may be made upon \nthe Plan Administrator itself.\n\n                                       -2-\n\n\n\n                               YOUR RIGHTS UNDER ERISA\n\nThe following statement is required by law to be included in this Summary \nPlan Description:\n\nAs a Participant in the EarthLink Network, Inc. Severance Pay Plan (the \n'Plan') you are entitled to certain rights and protections under the Employee \nRetirement Income Security Act of 1974, as amended ('ERISA').  ERISA provides \nthat all Plan Participants shall be entitled to:\n\n     Examine, without charge, at the Plan Administrator's office and \n     at other specified location, such as worksites, all Plan \n     documents and copies of all documents filed by the Plan with the \n     U.S. Department of Labor, such as detailed annual reports.\n\n     Obtain copies of all Plan documents and other Plan information \n     upon written request to the Plan Administrator.  The \n     administrator may make a reasonable charge for the copies.\n\n     Receive a summary of the Plan's annual financial report.  \n     The Plan Administrator is required by law to furnish each \n     Participant with a copy of this summary annual report.\n\nIn addition to creating rights for Plan Participants, ERISA imposes duties \nupon the people who are responsible for the operation of the Plan.  The \npeople who operate your Plan, called fiduciaries, have a duty to do so \nprudently and in the interest of you and other Plan Participants.  No one, \nincluding your employer or any other person, may fire you or otherwise \ndiscriminate against you in any way solely in order to prevent you from \nobtaining a benefit or exercising your rights under ERISA.  If your claim for \na benefit is denied, in whole or in part, you must receive a written \nexplanation of the reason for the denial.  You have the right to have the \nPlan review and reconsider your claim.  Under ERISA, there are steps you can \ntake to enforce the above rights.  For instance, if you request materials \nfrom the Plan and do not receive them within 30 days, you may file suit in a \nfederal court.  In such a case, the court may require the Plan Administrator \nto provide the materials and pay you up to $100 a day until you receive the \nmaterials, unless the materials were not sent because of reasons beyond the \ncontrol of the Plan Administrator.  If you have a claim for benefits which is \ndenied or ignored, in whole or in part, you may file suit in a state or \nfederal court.  If it should happen that Plan fiduciaries misuse the Plan's \nmoney, or if you are discriminated against for asserting your rights, you may \nfile suit in a federal court.  The court will decide who should pay court \ncosts and legal fees.  If you are successful, the court may order the person \nyou have sued to pay these costs and fees.  If you lose, the court may order \nyou to pay these costs and fees.  If you have any questions about your Plan, \nyou should contact the Plan Administrator.  If you have any questions about \nthis statement or about your rights under ERISA, you should contact the \nnearest office of the U.S. Labor-Management Services Administration, \nDepartment of Labor.\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7397],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9539,9551],"class_list":["post-40044","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-earthlink-inc","corporate_contracts_industries-technology__programming","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40044","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40044"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40044"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40044"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40044"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}