Earthlink 2009 Annual Report Download - page 168

10.3 Amendment or Termination After a Change in Control
. Notwithstanding any other provision of the Plan, the Committee may
not amend or terminate the Plan in whole or in part on or after a Change in Control to the extent any such amendment or termination would
adversely affect the Participants’ rights hereunder or result in Bonus Awards not being paid consistent with the terms of the Plan in effect prior
to such amendment or termination
11. COMPLIANCE WITH SECTION 409A
11.1 Tax Compliance
. This Plan is intended to be exempt from the applicable requirements of Section 409A of the Code and shall
be construed and interpreted in accordance therewith. The Company may at any time amend, suspend or terminate this Plan, or any payments to
be made hereunder, as necessary to be exempt from Section 409A of the Code. Notwithstanding the preceding, neither the Company nor any
Employer shall 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 Bonus Award or Distribution to be made under this Plan is subject to taxes, penalties or
interest as a result of failing to comply with Section 409A of the Code. The Distributions under the Plan are intended to satisfy the exemption
from Section 409A of the Code for “short-term deferrals.”
12. CLAIMS PROCEDURES
12.1 Filing of Claim . If a Participant becomes entitled to a Bonus Award or a Distribution has otherwise become payable, and the
Participant has not received the benefits to which the Participant believes he is entitled under such Bonus Award or Distribution, then the
Participant must submit a written claim for such benefits to the Committee within ninety (90) days of the date the Bonus Award would have
become payable (assuming the Participant is entitled to the Bonus Award) or the claim will be forever barred.
12.2 Appeal of Claim
. If a claim of a Participant is wholly or partially denied, the Participant or his duly authorized representative
may appeal the denial of the claim to the Committee. Such appeal must be made at any time within thirty (30) days after the Participant receives
written notice from the Committee of the denial of the claim. In connection therewith, the Participant or his duly authorized representative may
request a review of the denied claim, may review pertinent documents and may submit issues and comments in writing. Upon receipt of an
appeal, the Committee shall make a decision with respect to the appeal and, not later than sixty (60) days after receipt of such request for review,
shall furnish the Participant with a decision on review in writing, including the specific reasons for the decision, as well as specific references to
the pertinent provisions of the Plan upon which the decision is based. Notwithstanding the foregoing, if the Committee has not rendered a
decision on appeal within sixty (60) days after receipt of such request for review, the Participant’s appeal shall be deemed to have been denied
upon the expiration of the sixty (60)-day review period.
12.3 Final Authority . The Committee has discretionary and final authority under the Plan to determine the validity of any claim.
Accordingly, any decision the Committee makes on the Participant’s appeal shall be final and binding on all parties. If a Participant disagrees
with the Committee’s final decision, the Participant may bring suit, but only after the claim on appeal has been denied or deemed denied. Any
such lawsuit must be filed within ninety (90) days of the Committee’s denial (or deemed denial) of the Participant’s claim or the claim will be
forever barred.
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