Earthlink 2013 Annual Report Download - page 158

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.
(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.
(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.
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17.
Miscellaneous.