Earthlink 2008 Annual Report Download - page 166

(c) Whenever any benefits become payable under the Plan, the Employer and its Affiliates shall have the right to withhold such
amounts as are sufficient to satisfy any applicable federal, state or local withholding, tax, excise tax or similar requirements.
(d) The terms of an Employee’s benefits are as set forth in this document, which cannot be changed by the promises of any
individual employee or manager. Only the Employer 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 Employer.
(e) The terms and conditions of this Plan and the Employees’ benefits under the Plan shall remain strictly confidential.
Employees 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 Employer’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 and shall be construed and
interpreted in accordance therewith. The Employer 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 409A of the Code. For purposes of this Plan, all rights to payments and benefits
hereunder shall be treated as rights to receive a series of separate payments and benefits to the fullest extent allowed by Section 409A of the
Code. Notwithstanding the preceding, the Employer and all Affiliates shall not 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 amount under this Plan
is subject to taxes, penalties or interest as a result of failing to comply with Code Section 409A of the Code.
(h) This Plan is intended to be a “Welfare Plan” and not a “Pension Plan” as defined in ERISA Sections 3(1) and 3(2),
respectively. Accordingly, the Plan must be interpreted and administered in a manner that is consistent with that intent.
19