Earthlink 2013 Annual Report Download - page 177

Notwithstanding the foregoing, however, no other severance or other benefits provided an employee shall be deemed
enhanced severance pay or additional or other forms of severance benefits provided under this Plan unless such other
arrangements specifically reference that they are being provided under this Plan. All legally required federal, state and
local withholding taxes and any sums owing to the Company shall be deducted from severance pay and benefits due
under this Plan.
Delay in Payment for Specified Employees
Notwithstanding any other provision of this Plan, if an otherwise eligible employee is a Specified Employee (as defined
below), and if the severance package payable to such Specified Employee hereunder is not otherwise exempt from
Section 409A of the Code, then, to the extent necessary to comply with Section 409A of the Code, no payments may be
made hereunder (including, if necessary, any payments for COBRA benefits) before the date which is six months after
the Specified Employee’
s separation from service within the meaning of Section 409A or, if earlier, the date of death of
the Specified Employee. Because the amounts to be paid pursuant to this Plan should satisfy one or more exceptions to
treatment as nonqualified deferred compensation subject to Code Section 409A, these Specified Employee six-
month
delay provisions should only be applicable if it is subsequently determined that the amounts to be paid pursuant to this
Plan are not exempt from Section 409A.
For purposes of this Plan, “Specified Employee”
means an employee who is (i) an officer of the Company or any
Affiliate having annual compensation greater than $135,000 (with certain adjustments for inflation after 2005), (ii) a
five-percent owner of HoldCo or (iii) a one-
percent owner of HoldCo having annual compensation greater than
$150,000. For purposes of this Section, no more than 50 employees (or, if lesser, the greater of three or 10 percent of the
employees) shall be treated as officers. Employees who (i) normally work less than 17 1/2 hours per week, (ii) normally
work not more than 6 months during any year, (iii) have not attained age 21 or (iv) are included in a unit of employees
covered by an agreement which the Secretary of Labor finds to be a collective bargaining agreement between employee
representatives and the Company (except as otherwise provided in regulations issued under the Code) shall be excluded
for purposes of determining the number of officers. For purposes of this Section, the term “five- percent owner” (“one-
percent owner”)
means any person who owns more than five percent (One percent) of the outstanding stock of HoldCo
or stock possessing more than five percent (one percent) of the total combined voting power of all stock of HoldCo. For
purposes of determining ownership, the attribution rules of Section 318 of the Code shall be applied by substituting “
five
percent” for “50 percent”
in Section 318(a)(2) and the rules of Sections 414(b), 414(c) and 414(m) of the Code shall not
apply. For purposes of this Section, the term “compensation”
has the meaning given such term by Section 414(q)(4) of
the Code. The determination of whether the employee is a Specified Employee will be based on a December 31
identification date such that if the employee satisfies the above definition of Specified Employee at any time during the
12-
month period ending on December 31, he will be treated as a Specified Employee if he has a termination of
employment during the 12-
month period beginning on the first day of the fourth month following the identification date.
This definition is intended to comply with the specified employee rules of Section 409A(a)(2)(B)(i) of the Code and
shall be interpreted accordingly.
13