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 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
15
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.
16
IN WITNESS WHEREOF, You and the Company have executed and delivered this
Agreement as of the date first shown above.
YOU:
THE COMPANY:
JOSEPH M. WETZEL
EARTHLINK, INC.
/s/ Joseph M. Wetzel
By:
/s/ Rolla Huff
Address:
1375 Peachtree Street
Name:
Rolla Huff
Atlanta, GA 30309
Title:
Chief Executive Officer
Address:
1375 Peachtree Street
7-North
Atlanta, GA 30309
17