Earthlink 2014 Annual Report Download - page 138

Code Section 4999 at the time of the initial determination by the Company under this Section, however, it is
possible that amounts will have been paid under the Plan to or for the benefit of a Participant which should not have
been so paid (“Overpayment”)
or that additional amounts which will not have been paid under the Plan to or for the
benefit of a Participant could have been so paid (“Underpayment”),
in each case consistent with the calculation of the
Reduced Amount. If the Company, based either upon the assertion of a deficiency by the Internal Revenue Service
against the Company or any Affiliate or the Participant, which the Company or such Affiliate believes has a high
probability of success, or controlling precedent or other substantial authority, determines that an Overpayment has been
made, any such Overpayment must be treated for all purposes as a loan which the Participant must repay to the
Company together with interest at the applicable Federal rate under Code Section 7872(f)(2); provided, however, that no
such loan may be deemed to have been made and no amount shall be payable by the Participant to the Company or an
Affiliate if and to the extent such deemed loan and payment would not either reduce the amount on which the Participant
is subject to tax under Code Section 1, 3101 or 4999 or generate a refund of such taxes. If the Company or Affiliate,
based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, the
Company or Affiliate must pay the amount of the Underpayment to the Participant as soon as administratively
practicable (and within 30 days) after the final determination of Underpayment has been made. For purposes of this
Section, (i) “Net After Tax Receipt”
means the Present Value of a payment under this Plan net of all taxes imposed on
the Participant with respect thereto under Code Sections 1, 3101 and 4999, determined by applying the highest marginal
rate under Code Section 1 which applies to the Participant’s taxable income for the applicable taxable year; (ii) “
Present
Value” means the value determined in accordance with Code Section 280G(d)(4) and (iii) “Reduced Amount”
means the
largest aggregate amount of all payments and benefits under this Plan which (a) is less than the sum of all payments and
benefits under this Plan and (b) results in aggregate Net After Tax Receipts which are equal to or greater than the Net
After Tax Receipts which would result if the aggregate payments and benefits under this Plan were any other amount
less than the sum of all payments and benefits to be made under this Plan.
(a)
The failure of the Company or an Affiliate to enforce any provisions of the Plan shall in no way be
construed to be a waiver of those provisions, nor in any way effect the validity of the Plan or any part thereof, or the
right of the Company or an Affiliate thereafter to enforce such provision.
(b)
The benefits that this Plan provides shall not be reduced or offset by any other payments or benefits that
the Participant may receive from any other third party or other employer after the Participant’
s Termination of
Employment.
(c)
Whenever any payments or benefits become payable or deliverable under the Plan, the Company and its
Affiliates shall have the right to withhold, or obtain from the Participant or Beneficiary, such amounts as are sufficient to
satisfy any applicable federal, state or local withholding, tax, excise tax or similar requirements.
(d)
The terms of a Participant’
s benefits are as set forth in this document, which cannot be changed by the
promises of any individual employee or manager. Only the Company may change the terms of the Plan, and then only
through a written amendment. No promises (oral or written) that are contrary to the terms of the Plan and its written
amendments are binding upon the Plan or the Company or any Affiliate.
(e)
The terms and conditions of this Plan and the Participants’
benefits under the Plan shall remain strictly
confidential. Participants may not discuss or disclose any terms of this Plan or its benefits with anyone except their
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.
(f)
Benefits under the Plan are not considered eligible earnings for the Company’s or any Affiliate’
s 401(k)
Plan or any other benefit program.
(g)
This Plan is intended to comply with the applicable requirements of Section 409A of the Code to the extent
necessary and shall be construed and interpreted in accordance therewith. The Company may at any time amend,
suspend or terminate this Plan, or any payments to be made hereunder, as necessary to be in compliance with Section
19.
Miscellaneous.