America Online 2009 Annual Report Download - page 171

favorable to the Participant than this Section 7, if the Payment (as hereinafter defined) due to the Participant hereunder as a result of the acceleration of
vesting of the RSUs pursuant to paragraph 6 of this Agreement, either alone or together with all other Payments received or to be received by the
Participant from the Company or any of its Affiliates (collectively, the "Aggregate Payments"), or any portion thereof, would be subject to the excise
tax imposed by Section 4999 of the Code (or any successor thereto), the following provisions shall apply:
a) If the net amount that would be retained by the Participant after all taxes on the Aggregate Payments are paid would be greater than the net
amount that would be retained by the Participant after all taxes are paid if the Aggregate Payments were limited to the largest amount that would
result in no portion of the Aggregate Payments being subject to such excise tax, the Participant shall be entitled to receive the Aggregate
Payments.
b) If, however, the net amount that would be retained by the Participant after all taxes were paid would be greater if the Aggregate Payments were
limited to the largest amount that would result in no portion of the Aggregate Payments being subject to such excise tax, the Aggregate Payments
to which the Participant is entitled shall be reduced to such largest amount.
The term "Payment" shall mean any transfer of property within the meaning of Section 280G of the Code.
The determination of whether any reduction of Aggregate Payments is required and the timing and method of any such required reduction in Payments
under this Agreement or in any such other Payments otherwise payable by the Company or any of its Affiliates consistent with any such required
reduction, shall be made by the Participant, including whether any portion of such reduction shall be applied against any cash or any shares of stock of
the Company or any other securities or property to which the Participant would otherwise have been entitled under this Agreement or under any such
other Payments, and whether to waive the right to the acceleration of the Payment due under this Agreement or any portion thereof or under any such
other Payments or portions thereof, and all such determinations shall be conclusive and binding on the Company and its Affiliates. To the extent that
Payments hereunder or any such other Payments are not paid as a consequence of the limitation contained in this paragraph 7, then the RSUs and
Retained Distributions related thereto (to the extent not so accelerated) and such other Payments (to the extent not vested) shall be deemed to remain
outstanding and shall be subject to the provisions hereof and of the Plan as if no acceleration or vesting had occurred. Under such circumstances, if the
Participant terminates Employment for Good Reason or is terminated by the Company or any of its Affiliates without Cause, the RSUs and Retained
Distributions related thereto (to the extent that they have not already become vested) shall become immediately vested in their entirety upon such
termination and Shares subject to the RSUs shall be issued or transferred to the Participant, as soon as practicable following such termination of
Employment, subject to the provisions relating to Section 4999 of the Code set forth herein.