Earthlink 2014 Annual Report Download - page 124

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the Code. Notwithstanding the preceding, no Employer shall be liable to any Employee or any other person if the
Internal Revenue Service or any court or other authority having jurisdiction over such matter determines for any reason
that any Bonus Award or Distribution to be made under this Plan is subject to taxes, penalties or interest as a result of
failing to comply with Section 409A of the Code. The Distributions under the Plan are intended to satisfy the exemption
from Section 409A of the Code for “short-term deferrals.”
12.
CLAIMS PROCEDURES
12.1
Filing of Claim
. If a Participant becomes entitled to a Bonus Award or a Distribution has otherwise
become payable, and the Participant has not received the benefits to which the Participant believes he is entitled under
such Bonus Award or Distribution, then the Participant must submit a written claim for such benefits to the Committee
within ninety (90) days of the date the Bonus Award would have become payable (assuming the Participant is entitled to
the Bonus Award) or the claim will be forever barred.
12.2
Appeal of Claim
. If a claim of a Participant is wholly or partially denied, the Participant or his duly
authorized representative may appeal the denial of the claim to the Committee. Such appeal must be made at any time
within thirty (30) days after the Participant receives written notice from the Committee of the denial of the claim. In
connection therewith, the Participant or his duly authorized representative may request a review of the denied claim,
may review pertinent documents and may submit issues and comments in writing. Upon receipt of an appeal, the
Committee shall make a decision with respect to the appeal and, not later than sixty (60) days after receipt of such
request for review, shall furnish the Participant with a decision on review in writing, including the specific reasons for
the decision, as well as specific references to the pertinent provisions of the Plan upon which the decision is based.
Notwithstanding the foregoing, if the Committee has not rendered a decision on appeal within sixty (60) days after
receipt of such request for review, the Participant’
s appeal shall be deemed to have been denied upon the expiration of
the sixty (60)-day review period.
12.3
Final Authority
. The Committee has discretionary and final authority under the Plan to determine the
validity of any claim. Accordingly, any decision the Committee makes on the Participant’
s appeal shall be final and
binding on all parties. If a Participant disagrees with the Committee’
s final decision, the Participant may bring suit, but
only after the claim on appeal has been denied or deemed denied. Any such lawsuit must be filed within ninety (90) days
of the Committee’s denial (or deemed denial) of the Participant’s claim or the claim will be forever barred.
13.
COMPLIANCE WITH SECTION 162(M)
13.1
Section 162(m) Compliance.
It is the intent of the Company that the Plan and any Bonus Awards payable
under the Plan to Participants who are or may become persons whose compensation is subject to Section 162(m) of the
Code and that are intended to constitute qualified performance-
based compensation satisfy any applicable requirements
of Section 162(m) of the Code to qualify as qualified performance-
based compensation. Any provision, application or
interpretation of the Plan inconsistent with this intent shall be disregarded or deemed to be amended to the extent
necessary to conform to such requirements. Bonus Awards may only become payable if the applicable Corporate
Performance Objectives are achieved. Any Bonus Award that is intended to constitute qualified performance-
based
compensation that is only nominally or partially contingent on achieving the Corporate Performance Objectives may not
be awarded under the Plan. However, an Employer may pay a bonus, or other types of compensation, inside or outside
the Plan, which may or may not be deductible. In no event, however, may any Management Participant be entitled to a
Bonus Award under the Plan under two arrangements, where payment of the other bonus that is not intended to be
qualified performance-
based compensation is contingent upon the failure to meet the Corporate Performance Objectives
upon which the Participant’s Bonus Award that is intended to constitute qualified performance-
based compensation is
based. The provisions of the Plan may be bifurcated by the Committee at any time, so that certain provisions of the Plan
required in order to satisfy the requirements of Section 162(m) of the Code are only applicable to Participants whose
compensation is subject to 162(m) of the Code.
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