Earthlink 2006 Annual Report Download - page 126

(4) Notwithstanding any other provision of this Plan, however, if the Employee is a Specified Employee, and if the
benefits and payments under this Plan are not otherwise exempt from Code Section 409A, then to the extent necessary to comply with Section
409A no payments may be made hereunder (including, if necessary, any COBRA payments or reimbursements) before the date which is six
months after the Specified Employee’s Termination of Employment within the meaning of Section 409A or, if earlier, the date of death of the
Specified Employee. Because the amounts paid pursuant to this Plan should be paid by the 15 day of the third month following the end of
the calendar year in which Employees have a termination of employment, all amounts should be exempt from Section 409A. These Specified
Employee six-month delay provisions will only be applicable if it is subsequently determined that the amounts paid pursuant to this Plan are
not exempt from Section 409A.
(b) If the Employee has a Termination of Employment by the Employer or an Affiliate or by the Employee other than under the
circumstances set forth in Section 2(a), including without limitation on the death or On Account of Disability of the Employee, by the
Employer or an Affiliate for Cause or by the Employee other than for Good Reason, then the Employee’s compensation shall be paid through
the date of his or her Termination of Employment, and the Employer and its Affiliates shall have no further obligation with respect to the
Employee under this Plan. Such Termination of Employment shall have no effect upon an Employee’
s other rights, including but not limited to
rights under any Retirement Plan, Welfare Plan or other plan or program in which Employee participates, the amount, form and time of
payment of such benefits to be determined by the terms of such Retirement Plan, Welfare Plan, or other plan or program.
(c) This Section 2 shall have no effect, and Employer shall have no obligations hereunder with respect to, an Employee who has
a Termination of Employment for any reason at any time other than within eighteen (18) months after a Change in Control of the Employer
occurs under the circumstances described in Section 2(a) above.
(d) The Employer or an Affiliate that employs the Employee on his or her last day of employment will fund the payments to be
made under the Plan to such Employee from its general assets.
(e) Exhibit B attached hereto provides a summary of the benefits to which an Employee will be entitled based on the Benefit
Category for which such Employee qualifies. In the event of any conflict between such summary and the terms of Section 2 of the Plan, the
provisions of Section 2 of the Plan shall govern.
3. Accelerated Vesting of Options and Restricted Stock Units .
(a) (i) In the event no provision is made for the continuance, assumption or substitution by the Employer or its successor
in connection with a Change in Control of the Employer of outstanding stock options the Employer or an Affiliate granted before the Change in
Control of the Employer, then contemporaneously with the Change in Control of the Employer, all outstanding stock options that the Employer
or any Affiliate previously granted to an Employee in either the Gold or Silver Benefit Category shall be exercisable in full, if not then already
fully exercisable, in accordance with the terms of such options and the applicable plans pursuant to which they were granted, notwithstanding
any provisions in the stock options or
9
th