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MUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT

        This Mutual Non-Disclosure and Non-Solicitation Agreement (this "Agreement"), is made as of September 17, 2001 between EarthLink, Inc. a Delaware corporation ("EarthLink"), and PeoplePC, Inc., a Delaware corporation ("PeoplePC"). EarthLink and PeoplePC are sometimes referred to herein individually as a "Party" and collectively as the "Parties."

        1.    Purpose.    EarthLink and PeoplePC wish to have discussions relating to a potential transaction (the "Transaction") between EarthLink (and/or its subsidiaries and stockholders) and PeoplePC (and/or its subsidiaries and stockholders). In the course of such discussions, each Party expects to make available to the other Party and its Representatives (as defined herein) Evaluation Material (as defined herein) concerning the businesses, financial condition, operations, assets, properties, liabilities, and prospects of such Party. As a condition to making such information available, each Party is entering this Agreement and agrees that all Evaluation Material received by it or its Representatives from the other Party or any of its Representatives shall be treated in accordance with this Agreement.

        2.    Certain Definitions.    As used in this Agreement: (i) the term "Receiving Party" means the Party receiving Evaluation Material; (ii) the term "Furnishing Party" means the Party providing Evaluation Material or causing Evaluation Material to be provided; (iii) the term "Representatives" means the directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, investment bankers, financial advisors and other consultants and advisors engaged in connection with the review and evaluation of the Transaction) of the specified Party; and (iv) the term "Evaluation Material" means all proprietary and confidential information concerning the Furnishing Party or any of its subsidiaries or affiliates, whether in verbal, visual, written, electronic or other form, which is made available by the Furnishing Party or any of its Representatives to the Receiving Party or any of its Representatives ("Primary Evaluation Material"), together, in each case, with all notes, memoranda, summaries, analyses, studies, compilations and other writings relating thereto or based in whole or in part thereon prepared by the Receiving Party or any of its Representatives ("Derivative Evaluation Material"). Notwithstanding the foregoing, the term "Evaluation Material" shall not include, and the Parties' obligations herein (other than their obligations under paragraph 6 of this Agreement) shall not extend to information which (a) was rightfully in the possession of the Receiving Party prior to disclosure by the Furnishing Party; (b) was or is independently developed by the Receiving Party without use of the Evaluation Material; (c) is now or hereafter becomes available to the public other than as a result of disclosure by the Receiving Party or any of the Receiving Party's Representatives in violation of this Agreement; (d) becomes available to the Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Furnishing Party or any of its Representatives and such source is not, to the knowledge of the Receiving Party following reasonable inquiry, under any obligation to the Furnishing Party or any of its Representatives (whether contractual, legal or fiduciary) to keep such information confidential; or (e) is transmitted by or on behalf of the Furnishing Party after receiving written notification from the Receiving Party of the termination of discussions relating to the Transaction or written instructions from the Receiving Party not to furnish any further Evaluation Material.

        3.    Confidentiality and Use of Evaluation Material.    


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        4.    Accuracy of Evaluation Material: No Representations or Warranties.    Each Party acknowledges and agrees (a) that no representation or warranty, express or implied, is made by either Party or any of its respective Representatives as to the accuracy or completeness of the Evaluation Material, and (b) that the Parties shall be entitled to rely only on those representations and warranties (if any) that may be made in a definitive written agreement for the Transaction, signed and delivered by both Parties, and then only to the extent, and subject to the limitations, provided therein.

        5.    No Solicitation.    

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        6.    Return and Destruction of Evaluation Material.    At any time after termination of discussions by either Party with respect to the Transaction, upon the request of the Furnishing Party, the Receiving Party shall promptly (and in no event later than five business days after such request) (a) redeliver or cause to be redelivered to the Furnishing Party all copies of all Primary Evaluation Material in the possession or control of the Receiving Party or its Representatives which is in a visual or written format and erase or destroy all copies of all such Primary Evaluation Material which is stored in electronic format, and (b) destroy or cause to be destroyed all Derivative Evaluation Material in the possession or control of the Receiving Party or any of its Representatives. Nothing herein shall obligate the Receiving Party to provide any Derivative Evaluation Material to the Furnishing Party. Notwithstanding the return, destruction or erasure of Evaluation Material hereunder, the Receiving Party and its Representatives shall continue to be bound by their confidentiality and other obligations hereunder.

        7.    Remedies.    Each Party agrees that money damages would not be a sufficient remedy for any breach of any provision of this Agreement by it or any of its Representatives, and that in addition to all other remedies which either Party may have, each Party shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach. Such remedies shall not be deemed to be the exclusive remedies for a breach of this Agreement but shall be in addition to all other remedies available at law or in equity. No failure or delay by either Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder. In the event that either Party should institute proceedings to enforce any provision of this Agreement, the prevailing Party in such proceedings shall be entitled to recover all expenses relating to the enforcement of this Agreement, including reasonable attorneys' fees and costs, in addition to any other remedies.

        8.    Miscellaneous.    

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        The Parties have executed this Agreement as of the date first written above.

EarthLink, Inc.   PeoplePC, Inc.

By:

 

/s/  
BRINTON O.C. YOUNG      

 

By:

 

/s/  
CHARLES ORTMEYER      
Name:   Brinton O.C. Young
  Name:   Charles Ortmeyer
Title:   EVP of Strategic Planning
  Title:   SVP and General Counsel

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MUTUAL NON-DISCLOSURE AND NON-SOLICITATION AGREEMENT