Earthlink 2008 Annual Report Download - page 165

aggregate Net After Tax Receipts to the Employee would thereby be increased. Any such reduction shall first reduce any non-cash benefits on a
pro-rata basis and then reduce any cash payments on a pro-rata basis. As a result of the uncertainty in the application of Code Section 4999 at
the time of the initial determination by the Employer under this Section, however, it is possible that amounts will have been paid under the Plan
to or for the benefit of an Employee 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 an Employee could have been so paid (“Underpayment”), in each case consistent with the calculation
of the Reduced Amount. If the Employer, based either upon the assertion of a deficiency by the Internal Revenue Service against the Employer
or the Employee, which the Employer 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 Employee must
repay to the Employer 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 Employee to the Employer if and to the extent such deemed loan and
payment would not either reduce the amount on which the Employee is subject to tax under Code Section 1, 3101 or 4999 or generate a refund of
such taxes. If the Employer, based upon controlling precedent or other substantial authority, determines that an Underpayment has occurred, the
Employer must pay the amount of the Underpayment to the Employee 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 Employee 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 Employee’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.
17.
Miscellaneous.
(a) The failure of the Employer 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 Employer or an Affiliate thereafter to
enforce such provision.
(b) The benefits provided under this Plan are in addition to and not in lieu of any other similar benefits that the Employer or any
Affiliate may specify from time to time in any employee handbook or in any other agreement between the Employee and the Employer or an
Affiliate. Additionally, the benefits that this Plan provides shall not be reduced or offset by any other payments or benefits that the Employee
may receive from any other third party or other employer after the Employee’s Termination of Employment.
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