Earthlink 2014 Annual Report Download - page 130

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. Participants 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 or an Affiliate (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
Participant is a Specified Employee will be based on a December 31 identification date such that if the Participant
satisfies the above definition of Specified Employee at any time during the 12-
month period ending on December 31, he
or she will be treated as a Specified Employee if he or she has a Termination of Employment during the 12-
month period
beginning on the first day of the fourth month following the December 31 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.
(u)
“ Termination of Employment ”
means that the Participant has had a separation from service within the
meaning of Section 409A of the Code. A separation from service shall occur where it is reasonably anticipated that no
further services will be performed after that date or that the level of bona fide services the Participant will perform after
that date (whether as an employee or independent contractor of the Company or an Affiliate) will permanently decrease
to no more than 20% of the average level of bona fide services performed over the immediately preceding thirty-
six (36)
month period. A Participant shall be considered to have continued employment and to not have a separation from service
while on a leave of absence if the leave does not exceed 6 consecutive months (29 months for a disability leave of
absence) or, if longer, so long as the Participant retains a right to reemployment with the Company or Affiliate under an
applicable statute or by contract. For this purpose, a “disability leave of absence”
is an absence due to any medically
determinable physical or mental impairment that can be expected to result in death or can be expected to last for a
continuous period of not less than 6 months, where such impairment causes the Participant to be unable to perform the
duties of Participant’
s position of employment or a substantially similar position of employment. Continued services
solely as a director of the Company or an Affiliate shall not prevent a separation from service from occurring by the
Participant to the extent permitted by Section 409A of the Code.
(v)
“ Welfare Plan ”
shall mean any health and dental plan, disability plan, survivor income plan, life
insurance plan or similar plan, as defined in Section 3(1) of ERISA, currently made available by the Company or an
Affiliate in which the Participant participates.
(a)
Any Eligible Employee of the Company or an Affiliate (including an entity that becomes an Affiliate after
the Effective Date) shall become a Participant in the Plan as of the date the Committee, in its sole discretion, designates
such Eligible Employee as a Participant in the Plan. A Participant shall continue to participate in the Plan
until (i) no
longer an Eligible Employee, (ii) no longer entitled to benefits under the Plan or (iii) the Committee, in its sole
discretion, determines that the Eligible Employee may no longer participate in the Plan, subject to Section 16 below. The
Committee, in its sole discretion, will designate the Benefit Category of each Participant in the Plan. Exhibit A
attached
hereto shall set forth the name of each Participant and the Participant’
s Benefit Category as determined by the
Committee, and such Exhibit shall be amended from time to time as is necessary to reflect each Participant in the Plan
and the Participant’s Benefit Category.
2. Eligibility
.
3.
Benefits Upon Termination of Employment.