**Exhibit 10.1**

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**AMENDED AND RESTATED**

**EMPLOYMENT AGREEMENT**

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THIS AMENDED AND RESTATEDEMPLOYMENT AGREEMENT (this “Agreement”) between EARTHLINK, INC., a Delawarecorporation (the “Company”), and ROLLA HUFF (referred to herein as “You”) isentered into on December 30, 2008. This Agreement amends, restates and supersedes the Employment Agreementbetween the Company and You dated June 25, 2007 (the “Previous Agreement”).

 

**RECITALS**

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# 1.                                       The Company is engaged in the business of providingintegrated communication services and related value added services toindividual consumers and business customers throughout the States of the UnitedStates; and

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# 2.                                       The Company previously determined that, in view of Yourknowledge, expertise and experience in the integrated communication servicesand related value-added services industries, Your services as the ChiefExecutive Officer and President of the Company would be of great value to theCompany, and accordingly, the Company desired to enter into the PreviousAgreement with You on the terms set forth therein in order to secure Yourservices; and

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# 3.                                       You desired to serve as the Chief Executive Officer andPresident of the Company on the terms set forth in the Previous Agreement; and

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# 4.                                       The Company and You now desire to amend and restate thePrevious Agreement, as set forth herein, to address Section 409A of theCode (as defined below) and the final regulations issued thereunder.

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**NOW,THEREFORE,** in consideration of Your employment by the Company,the above premises and the mutual agreements hereinafter set forth, You and theCompany agree as follows:

 

## **1.****                     ****Definitions****.**

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### (a)                                                  “Affiliate” means any trade or business with whom theCompany would be considered a single employer under Sections 414(b) or 414(c) ofthe Code (except that, for purposes of determining Your Termination ofEmployment, the language “at least fifty percent (50%)” shall be used insteadof “at least eighty percent (80%)” each place it appears in Sections 414(b) or414(c) of the Code).

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### (b)                                                 “Beneficial Ownership” means beneficial ownership asthat term is used in Rule 13d-3 promulgated under the Securities ExchangeAct of 1934, as amended.

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### (c)                                                  “Business Combination” means a reorganization, mergeror consolidation of the Company.

 

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### (d)                                                 “Business of the Company” means the business ofproviding integrated communication services and related value added services toindividual consumers and business customers.

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### (e)                                                  “Cause” means (i) Your commission of any act offraud or dishonesty relating to and adversely affecting the business affairs ofthe Company; (ii) Your conviction of any felony; or (iii) Yourwillful and continued failure to perform substantially Your duties owed to theCompany after written notice specifying the nature of such non-performance anda reasonable opportunity to cure such non-performance.  No act or omission shall be considered “willful”unless it is done or omitted in bad faith or without reasonable belief that theaction or omission was in the best interests of the Company.

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### (f)                                                    “Change in Control Event” of the Company means theoccurrence of any of the following events:

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#### (1)                                  Theaccumulation in any number of related or unrelated transactions by any Personof Beneficial Ownership of more than fifty percent (50%) of the combined votingpower of the Company’s Voting Stock; provided that for purposes of thissubparagraph (1), a Change in Control Event will not be deemed to have occurredif the accumulation of more than fifty percent (50%) of the voting power of theCompany’s Voting Stock results from any acquisition of Voting Stock (a) bythe Company, (b) by any employee benefit plan (or related trust) sponsoredor maintained by the Company or any Affiliate, or (c) by any Personpursuant to a Business Combination that complies with clauses (a) and (b) ofsubparagraph (2) below; or

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#### (2)                                  Consummation ofa Business Combination, unless, immediately following that BusinessCombination, (a) all or substantially all of the Persons who were thebeneficial owners of Voting Stock of the Company immediately prior to thatBusiness Combination beneficially own, directly or indirectly, more than fiftypercent (50%) of the then outstanding shares of common stock and more thanfifty percent (50%) of the combined voting power of the then outstanding VotingStock entitled to vote generally in the election of directors of the entityresulting from that Business Combination (including, without limitation, anentity that as a result of that transaction owns the Company or all orsubstantially all of the Company’s assets either directly or through one ormore subsidiaries) in substantially the same proportions relative to each otheras their ownership, immediately prior to that Business Combination, of thecommon stock and Voting Stock of the Company, and (b) at least sixtypercent (60%) of the members of the Board of Directors of the entity resultingfrom that Business Combination holding at least sixty percent (60%) of thevoting power of such Board of Directors were members of the Incumbent Board atthe time of the execution of the initial agreement or of the action of theBoard of Directors providing for that Business Combination and as a result ofor in connection with such Business Combination, no Person has a right todilute either of such 

 

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#### percentages by appointing additional members to theBoard of Directors or otherwise without election or other action by thestockholders; or

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#### (3)                                  A sale or otherdisposition of all or substantially all of the assets of the Company, exceptpursuant to a Business Combination that complies with clauses (a) and (b) ofsubparagraph (2) above; or

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#### (4)                                  Approval by the shareholdersof the Company of a complete liquidation or dissolution of the Company, exceptpursuant to a Business Combination that complies with clauses (a) and (b) ofsubparagraph 2 above.

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### (g)                                                 “Code” means the Internal Revenue Code of 1986, asamended, and any regulations promulgated thereunder.

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### (h)                                                 “Company” shall mean EarthLink, Inc.

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### (i)                                                     “Confidential Information” means any and allnon-public information concerning, relating to and/or in the possession of theCompany and/or its Affiliates and/or the Business of the Company treated asconfidential or secret by the Company and/or its Affiliates (that is, suchbusiness information is subject to efforts by the Company and/or its Affiliatesthat are reasonable under the circumstances to maintain its secrecy) that doesnot constitute a Trade Secret, including, without limitation, informationconcerning the Company’s or an Affiliate’s financial position and results ofoperations (including revenues, assets, net income, etc.), annual and longrange business plans, product and service plans, marketing plans and methods,employee lists and information, in whatever form and whether or not computer orelectronically accessible.

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### (j)                                                     “Eligible Earnings” has the same meaning given tothat term in the Company’s bonus plan and payroll policies.

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### (k)                                                  “Good Reason” means, with respect to Your Terminationof Employment, any of the following acts or omissions that are not cured withinthirty (30) days after written notice of such act or omission is delivered tothe Company, the Chairman of the Board of Directors and the Chairman of theLeadership and Compensation Committee of the Board of Directors (which noticemust be given no later than ninety (90) days after the initial occurrence ofsuch event):

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#### (1)                                  without Yourexpress written consent (i) the assignment to You of any duties materiallyinconsistent in any respect with Your position, authority, duties orresponsibilities as contemplated by Section 2, (ii) the requirementby the Company that You report to any officer or employee other than directlyto the Board of Directors of the Company, or (iii) any other action by theCompany that results in a significant diminution in such position, authority,duties or responsibilities, provided, however, that, without limiting theforegoing, the occurrence of a Non-Public Change in Control Event(regardless of your consent thereto) shall in and of itself be deemed to resultin a significant diminution in 

 

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#### your position, authority, duties and/orresponsibilities as contemplated by Section 2;

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#### (2)                                  without Yourexpress written consent, any failure by the Company to comply in any materialrespect with any of the provisions of Section 4(a), (b) and (d) ofthis Agreement;

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#### (3)                                  any requirementthat You relocate outside of, or any relocation of the Company’s principalexecutive office outside of, the metropolitan area of Atlanta, Georgia; or

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#### (4)                                  any breach bythe Company of any other material provision of this Agreement.

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#### A termination by You shall not constitute termination for Good Reasonunless You resign within two (2) years after the initial occurrence ofsuch uncured event.

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### (l)                                                     “Incumbent Board” means a Board of Directorsconsisting of individuals who either are (a) members of the Company’sBoard of Directors on the date hereof or (b) members who become members ofthe Company’s Board of Directors subsequent to the date hereof whose election,or nomination for election by the Company’s shareholders, was approved by avote of at least sixty percent (60%) of the directors then comprising theIncumbent Board (either by a specific vote or by approval of the proxy statementof the Company in which that person is named as a nominee for director, withoutobjection to that nomination), but excluding, for that purpose, any individualwhose initial assumption of office occurs as a result of an actual orthreatened election contest (within the meaning of Rule 14a-11 of theSecurities Exchange Act of 1934, as amended) with respect to the election orremoval of directors or other actual or threatened solicitation of proxies orconsents by or on behalf of a Person other than the Board of Directors.

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### (m)                                               “Non-Public Change in Control Event” means anyChange in Control Event that is not a Public Change in Control Event.

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### (n)                                                 “Person” means any individual, entity or group withinthe meaning of Section 13(d)(3) or 14(d)(2) of the SecuritiesExchange Act of 1934, as amended.

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### (o)                                                 “Public Change in Control Event” means any Change inControl Event as defined in clause (f) above where (i) the Person thataccumulates Beneficial Ownership of more than fifty percent (50%) of thecombined voting power of the Company’s Voting Stock has, or such Person is adirect or indirect subsidiary of a Person that has, a class of common stock (ordepositary receipts or other certificates representing common equity interests)traded on a U.S. national securities exchange or quoted on NASDAQ or anotherestablished over-the-counter trading market in the United States or which willbe so traded or quoted when issued or exchanged in connection with such Changein Control Event or (ii) upon the consummation of such Change in ControlEvent, the Voting Stock of the Company will remain trading 

 

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### on a U.S.national securities exchange or quoted on NASDAQ or another establishedover-the-counter trading market in the United States.

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### (p)                                                 “Specified Employee” means an employee who is (i) anofficer of the Company or an Affiliate having annual compensation greater than$145,000 (with certain adjustments for inflation after 2008), (ii) afive-percent owner of the Company or (iii) a one-percent owner of theCompany having annual compensation greater than $150,000.  For purposes of this Section, no more than 50employees (or, if lesser, the greater of three or 10 percent of the employees)shall be treated as officers.  Employeeswho (i) normally work less than 17 1/2 hours per week, (ii) normallywork not more than 6 months during any year, (iii) have not attained age21, (iv) are included in a unit of employees covered by an agreement whichthe Secretary of Labor finds to be a collective bargaining agreement betweenemployee representatives and the Company or an Affiliate (except as otherwiseprovided in regulations issued under the Code) or (v) who have notcompleted six months of service shall be excluded for purposes of determiningthe number of officers for this determination. For purposes of this Section, the term “five-percent owner” (“one-percentowner”) means any person who owns more than five percent (one percent) of theoutstanding stock of the Company or stock possessing more than five percent(one percent) of the total combined voting power of all stock of theCompany.  For purposes of determiningownership, the attribution rules of Section 318 of the Code shall beapplied by substituting “five percent” for “50 percent” in Section 318(a)(2) andthe rules of Sections 414(b), 414(c) and 414(m) of the Codeshall not apply.  For purposes of thisSection, the term “compensation” has the meaning given such term by Section 414(q)(4) ofthe Code.  The determination of whether Youare a Specified Employee will be based on a December 31 identificationdate such that if You satisfy the above definition of Specified Employee at anytime during the 12-month period ending on December 31, You will be treatedas a Specified Employee if You have a Termination of Employment during the12-month period beginning on the first day of the fourth month following theidentification date.  This definition isintended to comply with the “specified employee” rules of Section 409A(a)(2)(B)(i) ofthe Code and shall be interpreted accordingly.

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### (q)                                                 “Termination of Employment” means the termination ofYour employment and service with the Company and all Affiliates.  You will not be considered as having had aTermination of Employment if (i) You continue to provide services to theCompany or any Affiliate as an employee or independent contractor at an annualrate that is more than 20 percent of the services rendered, on average, duringthe immediately preceding 36 months of employment (or, if employed less than 36months, such lesser period) or (ii) You are on military leave, sick leaveor other bona fide leave of absence so long as the period of such leave doesnot exceed six months, or if longer, so long as Your right to reemployment withthe Company or any Affiliate is provided either by statute or by contract.  If the period of leave (i) ends or (ii) exceedssix months and Your right to reemployment is not provided either by statute orby contract, the Termination of Employment will be deemed to occur on the firstdate immediately following such six-month period if not reemployed by theCompany or any Affiliate before such time and eligibility for 

 

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### paymentsand benefits hereunder will be determined as of that time.  Termination of Employment shall be construedconsistent with the meaning of a “separation from service” under Section 409Aof the Code.

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### (r)                                                    “Total Disability” means Your inability, throughphysical or mental illness or accident, to perform the majority of Your usualduties and responsibilities hereunder (as such duties are constituted on thedate of the commencement of such disability) in the manner and to the extentrequired under this Agreement for a period of at least ninety (90) consecutivedays.  Total Disability shall be deemedto have occurred on the first day following the expiration of such ninety (90)day period.

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### (s)                                                  “Trade Secrets”means any and all information concerning, relating to and/or in the possessionof, the Company and/or its Affiliates and/or the Business of the Company thatqualifies as a trade secret as defined by the laws of the State of Georgia onthe date of this Agreement and as such laws are amended from time to timethereafter.

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### (t)                                                    “Voting Stock” means the then outstanding securitiesof an entity entitled to vote generally in the election of members of thatentity’s Board of Directors.

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## **2.****                     ****Employment; Duties****.**

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### (a)                                                  The Company agrees to employ You as Chief Executive Officerand President of the Company with the duties and responsibilities generallyassociated with such position and such other reasonable additionalresponsibilities and positions as may be added to Your duties from time to timeby the Board of Directors consistent with Your position.

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### (b)                                                 During Your employment hereunder, You shall (i) diligentlyfollow and implement all Company employee policies and all management policiesand decisions communicated to You by the Board of Directors; and (ii) timelyprepare and forward to the Board of Directors all reports and accountings asmay be reasonably requested of You.

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## **3.****                    ****Term****. **The term hereof commenced on June 25, 2007, shallcontinue for a period of three (3) years from such date and shall beautomatically extended from year-to-year thereafter unless terminated inaccordance with Section 6 hereof (the “Term”).

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## **4.****                     ****Compensation****.**

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### (a)                                                  (1)  You shall be paid an annual base salary of notless than Eight Hundred Thousand Dollars ($800,000) per year (the “Base Salary”).  The Base Salary shall accrue and be due and payablein equal, or as nearly equal as practicable, biweekly installments and theCompany may deduct from each such installment all amounts required to bededucted and withheld in accordance with applicable federal and state income,FICA and other withholding tax requirements.

 

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#### (2)  The Base Salary shall be reviewedby the Board of Directors at least once during each year of the Term and may beincreased from time to time and at any time by the Board of Directors.  The Base Salary shall in no event be reducedor decreased below the highest level attained at any time by You, unless Youand the Board of Directors agree to implement a salary reduction program forcost abatement purposes.

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#### (3)  As the Term begins on other thanthe first business day of a calendar month and as the Term hereof shallterminate on other than the last day of a calendar month, Your compensation forsuch month shall be prorated according to the number of days during such monththat occur within the Term.

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### (b)                                                 For each fiscal year of the Company, You shall be entitledto receive an annual target bonus opportunity in an amount equal to one hundredpercent (100%) of Your Eligible Earnings (the “Annual Target Bonus”), with theability to earn 50 percent (50%) (threshold) to One Hundred Fifty Percent(150%) (maximum) of Your Annual Target Bonus if the bonus criteria for suchannual period, as set by the Board of Directors of the Company, are satisfied(the “Target Bonus Payment”); provided that if such bonus criteria are notsatisfied, no Annual Target Bonus shall be payable.  The criteria to earn Your Annual Target Bonusand other levels between the threshold and maximum for each year of the Termshall be based upon good faith negotiations between You and the Board ofDirectors.  All Target Bonus Paymentsthat become payable shall be paid to You in accordance with the applicablebonus plan but in no event later than 21⁄2 months after the end of the fiscal yearof the Company to which Your Target Bonus Payments relate.

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### (c)                                                  While You are performing the services described herein, theCompany shall reimburse You for all reasonable and necessary expenses incurredby You in connection with the performance of Your duties of employmenthereunder in accordance with the Company’s expense reimbursement policy, asapplied to the Company’s executive officers, as soon as administrativelypracticable but no later than 2 1⁄2 months after the end of the year in which Youincur the reimbursable expense.

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### (d)                                                 Pursuant to this Section 4(d), You shall participate inthe Change-In-Control Accelerated Vesting and Severance Plan amended andrestated effective December 15, 2008 and any plan(s) or program(s) thatsupersede, replace and/or supplement such plan, as in effect from time to time(the “AV/SP”), at the highest and most beneficial level of participationprovided under the AV/SP.  With respectto each individual benefit, or category of similar benefit, provided to Youunder each of the AV/SP and this Agreement, the two (2) benefits shall notbe cumulative, and You shall be entitled to receive each such benefit, orcategory of benefit, under the terms of the AV/SP or the terms of thisAgreement, whichever would be the greater amount or value to You, except thatthe timing and manner of payment of such benefits shall be consistent with theterms of this Agreement, regardless of whether the amount or value of thebenefits You are entitled to receive are determined under the AV/SP or thisAgreement.  The restrictions on cumulationof benefits in this Section 4(d), and the application of the terms of theAV/SP to 

 

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### benefitsprovided thereunder, shall not apply to Your right to qualify for andparticipate in the AV/SP at the highest and most beneficial level ofparticipation.

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### (e)                                                  You shall receive paid vacation during each twelve (12)month period of Your employment in accordance with the Company’s vacationpolicy.  To the extent that You do notuse Your accrued vacation during such twelve (12) month period, any remainingaccrued vacation shall be subject to the carryover restrictions applicable inthe Company’s normal vacation policies.

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## **5.****                    ****Equity Rights****.**

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### (a)                                                  Upon execution of the Previous Agreement, You received100,000 RSUs which shall vest in accordance with the terms of the EarthLink, Inc.2006 Equity and Cash Incentive Plan, with 50,000 RSUs vesting on June 25,2009, 25,000 RSUs vesting on June 25, 2010 and 25,000 RSUs vesting on June 25,2011, assuming Your continued employment until each such time, or as otherwisevested pursuant to Section 6.** **Upon execution of the PreviousAgreement, You also received (1) 700,000 stock options which vested as of September 30,2007 and (ii) 800,000 stock options which vest over a period of four yearsin accordance with the terms of the EarthLink, Inc. 2006 Equity and CashIncentive Plan, with 300,000 stock options vesting on December 31, 2008and the remaining 500,000 stock options vesting on a monthly basis between January 1,2009 and June 25, 2011, assuming Your continued employment until each suchtime, or as otherwise vested pursuant to Section 6.

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### (b)                                                 The stock options and restricted stock units granted by theCompany to You from time to time are hereinafter collectively called the “StockOptions and RSUs.”  You shall be giventhe period permitted under Your respective Stock Option agreements, which shallcontain the material terms provided in the form attached to this Agreement, toexercise Your Stock Options after Your termination of employment.

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### (c)                                                  Vested Stock Options shall be exercisable for ninety (90)days following termination of employment, provided that if You are prohibitedfrom exercising vested stock options during such ninety (90) day period due tohaving material non-public information about the Company, such exercise periodshall be extended until ten (10) days following the date that You nolonger have material non-public information about the Company, but in no eventshall the vested Stock Options be exercisable beyond their latest expirationdate as set forth in the respective Stock Option agreements.

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## **6.****                     ****Termination****.**

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### (a)                                                  A Termination of Employment shall occur only as follows:

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#### (1)                                  For Cause immediately by theCompany; or

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#### (2)                                  At Your option for GoodReason; or

 

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#### (3)                                  At Your option upon thirty(30) days prior written notice of termination delivered by You to the Company;or

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#### (4)                                  For any reason by theCompany upon three (3) calendar months prior written notice of terminationdelivered to You, except during a period of Your disability that may qualify asthe period for qualification for Your Termination of Employment due to YourTotal Disability as set forth in Section 6(a)(6); or

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#### (5)                                  By the Company upon Yourdeath; or

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#### (6)                                  By the Company because ofYour Total Disability upon thirty (30) days prior written notice of terminationdelivered to You.

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### (b)                                                 If You have a Termination of Employment that is (i) bythe Company for other than “Cause,” Your death or Your Total Disability, or (ii) byYou for “Good Reason,” You shall be paid an amount equal to (a) twohundred percent (200%) of the sum of (i) Your Base Salary as of theeffective date of Your Termination of Employment and(ii) Your Annual Target Bonus for the year in which Your Termination ofEmployment occurs, less (b) the amount of the Non-Compete Payment.  Subject to Section 19below, such amount shall be paid in a lump sum assoon as administratively practicable (and within thirty (30) days) after Your Termination of Employment.  In the event of such Termination ofEmployment, You shall become immediately vested in all Your outstanding StockOptions and RSUs, and for eighteen (18) months following Termination ofEmployment the Company shall pay, no less frequently than monthly, all costs ofhealth care continuation coverage for which You and Your spouse and dependentsare eligible under the Consolidated Omnibus Budget Reconciliation Act of 1986.

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### (c)                                                  If You have a Termination of Employment on account of Yourdeath or Your Total Disability, You shall be paid (i) one hundred percent(100%) of Your Base Salary as of the effective date of Your Termination ofEmployment, such amount to be paid in a lump sum assoon as administratively practicable (and within thirty (30) days) after Your Termination of Employment (subject to any delay inpayments that may be required by Section 19), and (ii) Your AnnualTarget Bonus for the year in which Your Termination of Employment occurs, suchAnnual Target Bonus to be determined in accordance with Section 4(b) andto be payable in accordance with the last sentence of Section 4(b).

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### (d)                                                 If You have a Termination of Employment by the Company forCause or by You for reasons other than for “Good Reason,” the Company will haveno obligations to pay You any amount beyond the effective date of suchTermination of Employment whether as Base Salary, Annual Target Bonus orotherwise or to provide You with any benefits arising hereunder or otherwiseexcept as required by law.

 

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## **7.****                    ****Confidential Information andTrade Secrets****. **Youacknowledge that the nature of Your engagement by the Company is such that Youshall have access to the Confidential Information and the Trade Secrets, eachof which has great value to the Company, provides the Company a competitiveadvantage, and constitutes the foundation upon which the Business of theCompany is based.  You agree to hold allof the Confidential Information and the Trade Secrets in confidence and to notuse, disclose, publish or otherwise disseminate any of such ConfidentialInformation and the Trade Secrets to any other person, except to the extentsuch disclosure is (i) necessary to the performance of this Agreement andin furtherance of the Company’s best interests, (ii) required by applicablelaw, (iii) as a result of portions of the Confidential Information and/orthe Trade Secrets becoming lawfully obtainable from other sources, (iv) authorizedin writing by the Company, or (v) necessary to enforce thisAgreement.  The restrictions set forth inthis Section 7 shall remain in full force and effect (a) with respectto the Confidential Information, for the three (3) year period followingthe effective date of Your Termination of Employment, and with respect to theTrade Secrets, until the Trade Secrets no longer retain their status or qualifyas trade secrets under applicable law. Upon Your Termination of Employment, You shall deliver to the Companyall documents, records, notebooks, work papers, and all similar materialcontaining Confidential Information and Trade Secrets, whether prepared by You,the Company or anyone else.

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## **8.****                     ****Inventions and Patents****. **All inventions, designs, improvements, patents, copyrightsand discoveries conceived by You during the term of this Agreement which areuseful in or directly or indirectly relate to the business of the Company or toany experimental work carried on by the Company, shall be the property of theCompany.  You agree to promptly and fullydisclose to the Company all such inventions, designs, improvements, patents,copyrights and discoveries (whether developed individually or with otherpersons) and at the Company’s expense, to take all steps necessary andreasonably required to assure the Company’s ownership thereof and to assist theCompany in protecting or defending the Company’s proprietary rights therein.

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## **9.****                     ****Restrictive Covenants****.**

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### (a)                                                  Non-Competition.  You agree that during Your employment, andfor a period of eighteen (18) calendar months following Termination ofEmployment, You shall not perform within the 50 states of the United States ofAmerica any services which are in competition with the Business of the Companyduring Your employment, or following Your Termination of Employment anyservices which are in competition with a Material line of Business engaged inby the Company at the time of Your Termination of Employment, and which are thesame as or similar to those services You performed for the Company under thisAgreement; provided, however, if the other business competitive with theBusiness of the Company has multiple lines, divisions, segments or units, someof which are not competitive with the Business of the Company, nothing hereinshall prevent You from being employed by or providing services to such line,division, segment or unit that is not competitive with the Business of theCompany.  For purposes of this Section 9(a),“Material” means a line of Business that represents 20% or more of the Company’sconsolidated revenues or adjusted EBITDA for the four fiscal quarters immediatelypreceding Your Termination of Employment.

 

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### (b)                                                 Non-Recruitment.  You agree that during Your employment and fora period of eighteen (18) calendar months following Termination of Employment,You will not, directly or indirectly:  (1) solicit,induce, recruit, or cause a Restricted Employee to resign employment with theCompany or its Affiliates, or (2) participate in making hiring decisions,encourage the hiring of, or aid in the hiring process of a Restricted Employeeon behalf of any employer other than the Company and its Affiliates.  As used herein, “Restricted Employee” meansany employee of the Company or its Affiliates with whom You had materialbusiness-related contact while performing services under this Agreement, andwho is:  (1) a member of executivemanagement; (2) a corporate officer of the Company or any of itsAffiliates, or (3) any employee of the Company or any of its Affiliatesengaged in product or service development or product or service management.

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### (c)                                                  Effect of Breach.  The obligation of the Company to continue tofulfill its payment and benefit obligations to You pursuant to Sections 6(b), 6(c) and9(d) is conditioned upon Your compliance with the provisions of this Section 9and Sections 7 and 8.  Accordingly,in the event that You shall materially breach the provisions of this Section 9and/or Sections 7 and/or 8 and not cure or cease (as appropriate) suchmaterial breach within ten (10) days of receipt of notice thereof from theCompany (the “Default Date”), the Company’s obligations under Sections 6(b), 6(c) and9(d) shall terminate and You shall promptly (within thirty (30) days afterthe Default Date) refund to the Company a prorata portion of the amountspreviously paid to You pursuant to Sections 6(b), 6(c) and 9(d) equalto a fraction, the numerator of which is the number of full months from theDefault Date to the eighteen-month (18-month) anniversary of Your Terminationof Employment, and the denominator of which is eighteen (18).  Termination of the Company’s obligationsunder Sections 6(b), 6(c) or 9(d) shall not be the Company’s sole andexclusive remedy for a breach of this Section 9 and/or Sections 7and/or 8.  In addition to the remedyprovided in this Section 9(c), the Company shall be entitled to seekdamages and injunctive relief to enforce this Section 9 andSections 7 and 8, in the event of a breach by You of this Section 9and/or Sections 7 and/or 8.

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### (d)                                                 Compensation for Restrictive Covenants.  In consideration ofYour obligations under this Section 9, upon Your Termination of Employmentother than on account of Your death or Total Disability or by the Company for “Cause”or by You for reasons other than “Good Reason,” You shall be paid an amountequal to one million five hundred thousand dollars ($1,500,000) (the “Non-CompetePayment”).  Subject to Section 19below, such amount shall be paid in a lump sum assoon as administratively practicable (and within thirty (30) days) after Your Termination of Employment.

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## **10.****              ****Remedies****.**

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### (a)                                                  The parties hereto agree that the services to be rendered byYou pursuant to this Agreement, and the rights and privileges granted to theCompany pursuant to this Agreement, are of a special, unique, extraordinary andintellectual character, which gives them a peculiar value; the loss of whichcannot be reasonably 

 

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### oradequately compensated in damages in any action at law, and that a breach byYou of any of the terms of this Agreement will cause the Company great andirreparable injury and damage.  Youhereby agree that the definition of the Business of the Company set forth in Section 1is correct, that the Company and its Affiliates conduct business throughout the50 states of the United States of America and beyond, and that theserestrictions are reasonably necessary to protect the legitimate businessinterests of the Company.  You herebyexpressly agree that the Company shall be entitled to the remedies ofinjunction, specific performance and other equitable relief to prevent a breachof this Agreement by You.  This Section 10shall not be construed as a waiver of any other rights or remedies which theCompany may have for damages or otherwise.

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### (b)                                                 In the event of any dispute over the interpretation orapplication of this Agreement, the Company shall reimburse You for Yourreasonable attorneys’ fees and costs incurred in connection with that disputeunless the Company is determined, by final judgment of a court of competent jurisdiction,to be the prevailing party on all or substantially all of the issues indispute, which reimbursement shall be made promptly (and within thirty (30)days) following final judgment.

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## **11.****              ****Construction and Severability****. **The parties hereto agree that the provisions of thisAgreement shall be presumed to be enforceable, and any reading causingunenforceability shall yield to a construction permitting enforcement.  In the event a court should determine not toenforce a provision of this Agreement due to overbreadth, violation of publicpolicy, or similar reasons, the parties specifically authorize such reviewingcourt to enforce said covenant to the maximum extent reasonable, whether saidrevisions be in time, territory, scope of prohibited activities, or otherrespects.  If any single covenant,provision, word, clause or phrase in this Agreement shall be foundunenforceable, it shall be severed and the remaining covenants and provisionsenforced in accordance with the tenor of the Agreement.

##  

## **12.****              ****Assignment****. **This Agreement and the rights and obligations of thehereunder may not be assigned by either party hereto without the prior writtenconsent of the other party hereto.

##  

## **13.****              ****Notices****. **Except as otherwise specifically provided herein, any noticerequired or permitted to be given to You pursuant to this Agreement shall begiven in writing, and personally delivered or mailed to You by certified mail,return receipt requested, at the address set forth below Your signature on thisAgreement or at such other address as You shall designate by written notice tothe Company given in accordance with this Section 13, and any noticerequired or permitted to be given to the Company, the Chairman of the Board ofDirectors or the Chairman of the Leadership and Compensation Committee of theBoard of Directors shall be given in writing, and personally delivered ormailed to that recipient by certified mail, return receipt requested, addressedto the appropriate recipient at the address set forth under the signature of theExecutive Vice President of the Company or his designee on this Agreement or atsuch other address as the Company shall designate by written notice to Yougiven in accordance with this Section 13. Any notice complying with this Section 13 shall be deemed receivedupon actual receipt by the addressee.

 

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##  

## **14.****             ****Waiver****. **The waiver by either party hereto of any breach of thisAgreement by the other party hereto shall not be effective unless in writing,and no such waiver shall operate or be construed as the waiver of the same oranother breach on a subsequent occasion.

##  

## **15.****             ****Governing Law****. **This Agreement and the rights of the parties hereunder shallbe governed by and construed in accordance with the laws of the State ofGeorgia.

##  

## **16.****             ****Beneficiary****. **All of the terms and provisions of this Agreement shall bebinding upon and inure to the benefit of and be enforceable by the partieshereto and their respective successors, heirs, executors, administrators andpermitted assigns.

##  

## **17.****             ****Entire Agreement****. **This Agreement embodies the entire agreement of the partieshereto relating to Your employment by the Company in the capacity herein statedand, except as specifically provided herein, no provisions of any employee manual,personnel policies, Company directives or other agreement or document shall bedeemed to modify the terms of this Agreement. No amendment or modification of this Agreement shall be valid or bindingupon You or the Company unless made in writing and signed by the partieshereto.  All prior understandings andagreements relating to Your employment by the Company, in whatever capacity,are hereby expressly terminated.

##  

## **18.****              ****Excise Tax****.**

##  

### (a)                                                  If any payment or distribution by the Company and/or anyAffiliate of the Company to or for Your benefit, whether paid or payable ordistributed or distributable pursuant to the terms of this Agreement orotherwise pursuant to or by reason of any other agreement, policy, plan,program or arrangement, including without limitation any stock option, stockappreciation right or similar right, or the lapse or termination of anyrestriction on or the vesting or exercisability of any of the foregoing (a “Payment”),would be subject to the excise tax imposed by Section 4999 of the Code orto any similar tax imposed by state or local law, or any interest or penaltieswith respect to such tax (such tax or taxes, together with any such interestand penalties, being hereafter collectively referred to as the “Excise Tax”),then the payments and benefits payable or provided under this Agreement (orother Payments as described below) shall be reduced (but not below the amountof the payments or benefits provided under this Agreement) if, and only to theextent that, such reduction will allow You to receive a greater Net After TaxAmount than You would receive absent such reduction.

###  

### (b)                                                 The Accounting Firm will first determine the amount of anyParachute Payments (as defined below) that are payable to You.  The Accounting Firm also will determine theNet After Tax Amount (as defined below) attributable to Your total ParachutePayments.

###  

### (c)                                                  The Accounting Firm will next determine the largest amountof Payments that may be made to You without subjecting You to the Excise Tax(the “Capped Payments”).  Thereafter, theAccounting Firm will determine the Net After Tax Amount attributable to theCapped Payments.

 

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###  

### (d)                                                 You then will receive the total Parachute Payments or theCapped Payments or such other amount less than the total Parachute Payments,whichever provides You with the higher Net After Tax Amount, but in no eventwill any such reduction imposed by this Section 18 be in excess of theamount of payments or benefits payable or provided under this Agreement.  If You will receive the Capped Payments orsome other amount lesser than the total Parachute Payments, the total ParachutePayments will be adjusted by first reducing the amount of any noncash benefitsunder this Agreement or any other plan, agreement or arrangement on a pro ratabasis and then by reducing the amount of any cash benefits under this Agreementor any other plan, agreement or arrangement on a pro rata basis.  The Accounting Firm will notify You and theCompany if it determines that the Parachute Payments must be reduced and willsend You and the Company a copy of its detailed calculations supporting thatdetermination.

###  

### (e)                                                  As a result of the uncertainty in the application of CodeSections 280G and 4999 at the time that the Accounting Firm makes itsdeterminations under this Section 18, it is possible that amounts willhave been paid or distributed to You that should not have been paid ordistributed under this Section 18 (“Overpayments”), or that additionalamounts should be paid or distributed to You under this Section 18 (“Underpayments”).  If the Accounting Firm determines, based oneither the assertion of a deficiency by the Internal Revenue Service againstthe Company or You, which assertion the Accounting Firm believes has a highprobability of success or controlling precedent or substantial authority, thatan Overpayment has been made, that Overpayment will be treated for all purposesas a debt *ab initio*that You mustrepay to the Company together with interest at the applicable Federal rateunder Code Section 7872; provided, however, that no debt will be deemed tohave been incurred by You and no amount will be payable by You to the Companyunless, and then only to the extent that, the deemed debt and payment would eitherreduce the amount on which You are subjectto tax under Code Section 4999 or generate a refund of tax imposed underCode Section 4999.  If the Accounting Firm determines, based uponcontrolling precedent or substantial authority, that an Underpayment hasoccurred, the Accounting Firm will notify You and the Company of thatdetermination and the amount of that Underpayment will be paid to You promptly(and no later than thirty (30) days after the final determination of theUnderpayment) by the Company.

###  

### (f)                                                    For purposes of this Section 18, the following termsshall have their respective meanings:

###  

##### (i)                                     “Accounting Firm” means the·independent accounting firm engaged by the Company in the Company’s solediscretion.

#####  

##### (ii)                                  “Net After Tax Amount” meansthe amount of any Parachute Payments, Capped Payments or other paymentsdescribed in this Section 18, as applicable, net of taxes imposed underCode Sections 1, 3101(b) and 4999 and any State or local income taxesapplicable to You on the date of payment. The determination of the Net After Tax Amount shall be made using thehighest 

 

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#####  

##### combined effective rate imposed by the foregoing taxes on income of thesame character as the Parachute Payments or Capped Payments, as applicable, ineffect on the date of payment.

#####  

##### (iii)                               “Parachute Payment” means apayment that is described in Code Section 280G(b)(2), determined inaccordance with Code Section 280G and the regulations promulgated orproposed thereunder.

#####  

### (g)                                                 The fees and expenses of the Accounting Firm for itsservices in connection with the determinations and calculations contemplated bythe preceding subsections shall be borne by the Company.  If such fees and expenses are initially paidby You, the Company shall reimburse You the full amount of such fees andexpenses within five business days after receipt from You of a statementtherefore and reasonable evidence of Your payment thereof but in no event laterthan the end of the year immediately following the year in which You incur suchreimbursable fees and expenses.

###  

### (h)                                                 The Company and You shall each provide the Accounting Firmaccess to and copies of any books, records and documents in the possession ofthe Company or You, as the case may be, reasonably requested by the AccountingFirm, and otherwise cooperate with the Accounting Firm in connection with thepreparation and issuance of the determinations and calculations contemplated bythe preceding subsections.  Any determinationby the Accounting Firm shall be binding upon the Company and You.

###  

### (i)                                                     The federal, state and local income or other tax returnsfiled by You shall be prepared and filed on a consistent basis with thedetermination of the Accounting Firm with respect to the Excise Tax payable byYou.  You, at the request of the Company,shall provide the Company true and correct copies (with any amendments) of Yourfederal income tax return as filed with the Internal Revenue Service andcorresponding state and local tax returns, if relevant, as filed with theapplicable taxing authority, and such other documents reasonably requested bythe Company, evidencing such conformity.

###  

### (j)                                                     All payments to be made to You under this Section 18must be paid no earlier than when the applicable taxes are to be remitted andby the end of Your taxable year next following the year in which the taxes thatare the subject of the audit or litigation are remitted to the taxingauthorities or, where no such taxes are remitted, the end of Your taxable yearfollowing the year in which the audit is completed or there is a final andnon-appealable settlement or the resolution of the litigation.

###  

## **19.****              ****Tax Liabilities and Code Section 409A****.**  Any payments or benefits that You receivepursuant to this Agreement shall be subject to reduction for any applicableemployment or withholding taxes. Notwithstanding any other provision of this Plan, if You are a SpecifiedEmployee as of Your Termination of Employment, and if the amounts that You areentitled to receive pursuant to Section 6 or Section 9 are nototherwise exempt from Section 409A of the 

 

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##  

## Code, then tothe extent necessary to comply with Section 409A, no payments for suchamounts may be made under this Agreement (including, if necessary, any paymentsfor welfare or other benefits in which case You may be required to pay for suchcoverage or benefits and receive reimbursement when payment is no longerprohibited) before the date which is six (6) months after Your Terminationof Employment or, if earlier, Your date of death.  All such amounts, which would have otherwisebeen required to be paid over such six (6) months after Your Terminationof Employment or, if earlier, until Your date of death, shall be paid to You inone lump sum payment as soon as administratively feasible after the date whichis six (6) months after Your Termination of Employment or, if earlier,Your date of death.  All such remainingpayments shall be made as if they had begun as set forth in thisAgreement.  For purposes of thisAgreement, Your rights to payments shall be treated as rights to receive aseries of separate payments to the fullest extent allowable under Section 409Aof the Code.  This Agreement is intendedto comply with the applicable requirements of Section 409A of the Code andshall be construed and interpreted in accordance therewith.  The Company may at any time amend, suspend orterminate this Agreement, or any payments to be made hereunder, as necessary tobe in compliance with Section 409A of the Code to avoid the imposition onYou of any potential excise taxes relating to Section 409A.  To the extent that You incur liability forexcise taxes, penalties or interest under Section 409A of the Code becauseany nonqualified deferred compensation plan of the Company fails to comply withSection 409A, the Company will make a special reimbursement payment to Youequal to the sum of (i) Your liability for excise taxes, penalties orinterest under Section 409A and (ii) all taxes attributable to thespecial reimbursement payment, at the time such taxes, penalties and interestare required to be remitted to the applicable authorities.

##  

**IN WITNESS****WHEREOF,**You and theCompany have executed and delivered this Agreement as of the date first shownabove.

 
| **YOU:**          | ** **                 | **THE  COMPANY:**    |
|-------------------|----------------------------|----------------------|
| ** **        | ** **                 | ** **           |
| **ROLLA  HUFF**   | ** **                 | **EARTHLINK,  INC.** |
| ** **        | ** **                 | ** **           |
| ** **        | ** **                 | ** **           |
| /s/ Rolla P. Huff |                       | By:                  | /s/  Susan D. Bowick |
| ** **        | ** **                 | ** **           |
| Address:          | 1375  Peachtree Street     |                 | Name: | Susan  D. Bowick |
| ** **        | 7-North  Atlanta, GA 30309 |                 | Title: | Chairperson  - Leadership and****Compensation  Committee |
| ** **        | ** **                 | ** **           |
| ** **        |                       | Address:             | 1375  Peachtree Street |
| ** **        |                       | ** **           | 7-North  Atlanta, GA 30309 |
|                   |                            |                      |  |  |  |  |

 

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