OR THERE IS A FINAL AND NON-APPEALABLE SETTLEMENT OR THE
RESOLUTION OF THE LITIGATION.
19.
TAX LIABILITIES AND CODE SECTION 409A.
ANY PAYMENTS OR BENEFITS
THAT YOU RECEIVE PURSUANT TO THIS AGREEMENT SHALL BE SUBJECT TO REDUCTION FOR
ANY APPLICABLE EMPLOYMENT OR WITHHOLDING TAXES.
NOTWITHSTANDING ANY OTHER
PROVISION OF THIS PLAN, IF YOU ARE A SPECIFIED EMPLOYEE AS OF YOUR TERMINATION
OF EMPLOYMENT, AND IF THE AMOUNTS THAT YOU ARE ENTITLED TO RECEIVE PURSUANT TO
SECTION 6 OR SECTION 9 ARE NOT OTHERWISE EXEMPT FROM SECTION 409A OF THE CODE,
THEN TO THE EXTENT NECESSARY TO COMPLY WITH SECTION 409A, NO PAYMENTS FOR SUCH
AMOUNTS MAY BE MADE UNDER THIS AGREEMENT (INCLUDING, IF NECESSARY, ANY PAYMENTS
FOR WELFARE OR OTHER BENEFITS IN WHICH CASE YOU MAY BE REQUIRED TO PAY FOR SUCH
COVERAGE OR BENEFITS AND RECEIVE REIMBURSEMENT WHEN PAYMENT IS NO LONGER
PROHIBITED) BEFORE THE DATE WHICH IS SIX (6) MONTHS AFTER YOUR TERMINATION OF
EMPLOYMENT OR, IF EARLIER, YOUR DATE OF DEATH.
ALL SUCH AMOUNTS, WHICH WOULD
HAVE OTHERWISE BEEN REQUIRED TO BE PAID OVER SUCH SIX (6) MONTHS AFTER YOUR
TERMINATION OF EMPLOYMENT OR, IF EARLIER, UNTIL YOUR DATE OF DEATH, SHALL BE
PAID TO YOU IN ONE LUMP SUM PAYMENT AS SOON AS ADMINISTRATIVELY FEASIBLE AFTER
THE DATE WHICH IS SIX (6) MONTHS AFTER YOUR TERMINATION OF EMPLOYMENT OR, IF
EARLIER, YOUR DATE OF DEATH.
ALL SUCH REMAINING PAYMENTS SHALL BE MADE AS IF
THEY HAD BEGUN AS SET FORTH IN THIS AGREEMENT.
FOR PURPOSES OF THIS AGREEMENT,
YOUR RIGHTS TO PAYMENTS SHALL BE TREATED AS RIGHTS TO RECEIVE A SERIES OF
SEPARATE PAYMENTS TO THE FULLEST EXTENT ALLOWABLE UNDER SECTION 409A OF THE
CODE.
THIS AGREEMENT IS INTENDED TO COMPLY WITH 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
AGREEMENT, OR ANY PAYMENTS TO BE MADE HEREUNDER, AS NECESSARY TO BE IN
COMPLIANCE WITH SECTION 409A OF THE CODE TO AVOID THE IMPOSITION ON YOU OF ANY
POTENTIAL EXCISE TAXES RELATING TO SECTION 409A.
TO THE EXTENT THAT YOU INCUR
LIABILITY FOR EXCISE TAXES, PENALTIES OR INTEREST UNDER SECTION 409A OF THE CODE
BECAUSE ANY NONQUALIFIED DEFERRED COMPENSATION PLAN OF THE COMPANY FAILS TO
COMPLY WITH SECTION 409A, THE COMPANY WILL MAKE A SPECIAL REIMBURSEMENT PAYMENT
TO YOU EQUAL TO THE SUM OF (I) YOUR LIABILITY FOR EXCISE TAXES, PENALTIES OR
INTEREST UNDER SECTION 409A AND (II) ALL TAXES ATTRIBUTABLE TO THE SPECIAL
REIMBURSEMENT PAYMENT, AT THE TIME SUCH TAXES, PENALTIES AND INTEREST ARE
REQUIRED TO BE REMITTED TO THE APPLICABLE AUTHORITIES.
14
IN WITNESS WHEREOF, You and the Company have executed and delivered this
Agreement as of the date first shown above.
YOU:
THE COMPANY:
ROLLA HUFF
EARTHLINK, INC.
/s/ Rolla Huff
By:
/s/ Susan D. Bowick
Address:
1375 Peachtree Street
Name:
Susan D. Bowick
Atlanta, GA 30309
Title:
Chairperson - Leadership and Compensation
Committee
Address:
1375 Peachtree Street
7-North
Atlanta, GA