Earthlink 2008 Annual Report Download - page 197

8. POSITION ELIMINATION
8.1
Payment after a Position Elimination . If before a Change in Control occurs the Participant’s employment with all Employers
is terminated by an Employer as a result of a position elimination, such that the Participant is entitled to receive benefits under any position
elimination and severance plan maintained by the Company or any Affiliate, then, the Participant shall be entitled to receive for the Bonus
Period that includes the date of the Participant’s termination of employment as a result of a position elimination, the Bonus Award that would
result based on the Corporate Performance Objectives achieved during the Bonus Period through the time of the Participant’s termination of
employment (annualized or otherwise adjusted considering progress toward goals and the portion of the Bonus Period preceding the Participant’
s
termination of employment compared to the entire Bonus Period), calculated on the same basis as other similarly-situated Participants, except
that the Bonus Award for that Bonus Period shall be based solely upon the Participant’s Compensation for that Bonus Period through the time of
the position elimination. In that event, the Participant also shall be entitled to receive any Bonus Award payable for any Bonus Period that ended
before the termination of the Participant’s employment. Such Bonus Awards shall be paid no later than the time they would have been paid had
the Participant remained employed.
9. MISCELLANEOUS
9.1
Unsecured General Creditor . Participants and their beneficiaries, heirs, successors and assigns shall have no legal or
equitable rights, interests, or other claim in any property or assets of the Employer. Any and all assets shall remain general, unpledged,
unrestricted assets of the Employer. The Employer’s obligation under the Plan shall be that of an unfunded and unsecured promise to pay money
or shares of Common Stock in the future, and there shall be no obligation to establish any fund, any security or any other restricted asset in order
to provide for the payment of amounts under the Plan.
9.2 Obligations to the Employer . If a Participant becomes entitled to a Distribution under the Plan, and, if, at the time of the
Distribution, such Participant has outstanding any debt, obligation or other liability representing an amount owed to any Employer, then the
Employer may offset such amounts owing to it or any other Employer against the amount of any Distribution. Such determination shall be made
by the Committee. Any election by the Committee not to reduce any Distribution payable to a Participant shall not constitute a waiver of any
claim for any outstanding debt, obligation, or other liability representing an amount owed to the Employer.
9.3 Nonassignability . Neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge,
anticipate, mortgage or otherwise encumber, transfer, hypothecate or convey in advance of actual receipt the amounts, if any, payable hereunder,
or any part thereof, which are, and all rights to which are, expressly declared to be unassignable and nontransferable. No part of a Distribution,
prior to actual Distribution, shall be subject to seizure or sequestration for the payment of any debts, judgments, alimony or separate maintenance
owed by a Participant or any other person, nor shall it be transferable by operation of law in the event of the Participant’s or any other persons
bankruptcy or insolvency, except as set forth in Section 9.2 above.
8