Earthlink 2014 Annual Report Download - page 123

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agreements or arrangements relating to the Participant’
s employment that provide for payments of any bonuses
under this Plan on termination of employment, this Plan shall be construed and interpreted so that the Bonus Awards and
Distributions payable under the Plan are only paid once; it being the intent of this Plan not to provide the Participant any
duplicative payments of Bonus Awards. To the extent a Participant is entitled to a bonus payment calculated under this
Plan under any other agreement or arrangement that would constitute a duplicative payment of the Bonus Award or
Distribution; to the extent of that duplication, no Bonus Award or Distribution will be payable hereunder.
9.12
Confidentiality . The terms and conditions of this Plan and the Participant’
s participation hereunder shall
remain strictly confidential. The Participant may not discuss or disclose any terms of this Plan or its benefits with anyone
except for Participant’
s attorneys, accountants and immediate family members who shall be instructed to maintain the
confidentiality agreed to under this Plan, except as may be required by law.
9.13
Temporary Leaves of Absence
. The Committee in its sole discretion may decide to what extent leaves of
absence for government or military service, illness, temporary disability or other reasons shall, or shall not be, deemed
an interruption or termination of employment.
9.14 Clawback Provision
. Notwithstanding any other provision of the Plan, the Participant shall reimburse or
return to the Employer the gross aggregate amount of any cash Distribution that the Participant previously received
under the Plan, to the extent required under applicable law or any clawback or compensation recoupment policy that the
Employer may adopt as long as such requirement to reimburse or return is triggered by action of the Committee or the
Board that is taken prior to a Change in Control.
10.
AMENDMENT AND TERMINATION OF THE PLAN
10.1
Amendment
. Except as set forth in Section 10.3 below, the Committee in its sole discretion may at any
time amend the Plan in whole or in part.
10.2
Termination of the Plan .
(a)
Employer’s Right to Terminate
. Except as set forth in Section 10.3 below, the Committee may at
any time terminate the Plan, if it determines in good faith that the continuation of the Plan is not in the best interest of
EarthLink and its shareholders. No such termination of the Plan shall reduce any Distributions already made.
(b)
Payments upon Termination of the Plan
. Upon the termination of the Plan under this Section,
Awards for future Bonus Periods shall not be made. With respect to the Bonus Period in which such termination takes
place, the Employer will pay to each Participant the Participant’
s Bonus Award, if any, for such Bonus Period, less any
applicable withholdings, only to the extent the Committee provides for any such payments on termination of the Plan (in
which case all such payments will be made no later than the 15 th
day of the third month following the end of the Bonus
Period that includes the effective date of termination of the Plan).
10.3
Amendment or Termination after a Change in Control
. Notwithstanding any other provision of the Plan,
the Committee may not amend or terminate the Plan in whole or in part, or change eligibility for participation in the
Plan, on or after a Change in Control to the extent any such amendment or termination, or change in eligibility for
participation in the Plan, would adversely affect the Participants’
rights hereunder or result in Bonus Awards not being
paid consistent with the terms of the Plan in effect prior to such amendment or termination for the Bonus Period in
which the amendment or termination of the Plan takes place and any prior Bonus Period, and assuming for each
Management Participant a Discretionary Bonus of no less than the Participant’
s Target Potential Discretionary Bonus, or
such greater or lesser percent if established prior to the Change in Control, for any such Bonus Period.
11.
COMPLIANCE WITH SECTION 409A
11.1
Tax Compliance
. This Plan is intended to be exempt from the applicable requirements of Section 409A
of the Code and shall be construed and interpreted in accordance therewith. The Committee may at any time amend,
suspend or terminate this Plan, or any payments to be made hereunder, as necessary to be exempt from Section 409A of