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 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
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SECTION 409A OF THE CODE TO AVOID THE IMPOSITION ON YOU OF ANY POTENTIAL EXCISE
TAXES RELATING TO SECTION 409A.
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 P. Huff
Address:
1375 Peachtree Street
Name:
Rolla Huff
7-North Atlanta, GA 30309
Title:
Chief Executive Officer
Address:
1375 Peachtree Street
7-North Atlanta, GA 30309
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