Earthlink 2008 Annual Report Download - page 156

program maintained by Employer or any Affiliate in which Employee participates at the date of the Employee’s Termination of Employment,
shall receive any and all benefits accrued under any such Retirement Plan, Welfare Plan or other plan or program to the date of the Employee’s
Termination of Employment, 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.
(4) Notwithstanding any other provision of this Plan, however, if the Employee is a Specified Employee on Termination
of Employment 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 or, if earlier, the date of death of the Specified
Employee. In the event any such payments are otherwise due to be made in installments or periodically prior to the earlier of six months after
the Specified Employee’s Termination of Employment or, if earlier, the date of death of the Specified Employee, the payments which would
otherwise have been made shall be accumulated and paid in a lump sum as soon as such period ends, and the balance of the payments shall be
made as otherwise scheduled. In the event any benefits are required to be deferred hereunder, any such benefits may be provided during such
deferral period at Employee’s expense, with Employee to be reimbursed from the Employer once the deferral period ends, and the balance of the
benefits shall be provided as otherwise scheduled.
(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 (no less frequently than monthly and consistent with Employer’s customary payroll practices), 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 Affiliate that employs the Employee on his or her Termination 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.
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