**Exhibit 10.2**

 

**AMENDED AND RESTATEDEMPLOYMENT AGREEMENT**

** **

THIS AMENDED AND RESTATEDEMPLOYMENT AGREEMENT (this “Agreement”) between EARTHLINK, INC., a Delawarecorporation (the “Company”), and JOSEPH M. WETZEL (referred to herein as “You”)is entered into on December 30, 2008. This Agreement amends, restates and supersedes the Employment Agreementbetween the Company and you dated August 27, 2007 (the “Previous Agreement”).

 

**RECITALS**

** **

# 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

#  

# 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 ChiefOperating Officer of the Company would be of great value to the Company, andaccordingly, the Company desired to enter into the Previous Agreement with Youon the terms set forth therein in order to secure Your services; and

#  

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

#  

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

#  

**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****.**

##  

### (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).

###  

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

###  

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

 

----

 

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

###  

### (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.

###  

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

###  

#### (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

####  

#### (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 

 

2

----

 

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

####  

#### (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

####  

#### (4)                                  Approval by theshareholders of the Company of a complete liquidation or dissolution of theCompany, except pursuant to a Business Combination that complies with clauses (a) and(b) of subparagraph 2 above.

####  

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

###  

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

###  

### (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.

###  

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

###  

### (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):

###  

#### (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 Chief Executive Officer, the President of the Company (excluding aPresident of any division of the Company) or the Board of Directors of theCompany, (iii) any other action by the Company that results in asignificant diminution in such position, authority, duties or responsibilities,or (iv) any failure by the Company to comply in any material respect withany of the provisions of Sections 4(a), (b) and (d) of thisAgreement;

 

3

----

 

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

####  

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

####  

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

####  

### (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 proxystatement of the Company in which that Person is named as a nominee fordirector, without objection to that nomination), but excluding, for thatpurpose, any individual whose initial assumption of office occurs as a resultof an actual or threatened election contest (within the meaning of Rule 14a-11of the Securities Exchange Act of 1934, as amended) with respect to theelection or removal of directors or other actual or threatened solicitation ofproxies or consents by or on behalf of a Person other than the Board ofDirectors.

###  

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

###  

### (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.

###  

### (o)                        “Public Change in Control Event” means any Change inControl Event as defined in clause (f) above where (i) thePerson that accumulates Beneficial Ownership of more than fifty percent (50%)of the combined voting power of the Company’s Voting Stock has, or such Personis a direct or indirect subsidiary of a Person that has, a class of commonstock (or depositary receipts or other certificates representing common equityinterests) traded on a U.S. national securities exchange or quoted on NASDAQ oranother established over-the-counter trading market in the United States orwhich will be so traded or quoted when issued or exchanged in connection withsuch Change in Control Event or (ii) upon the consummation of such Changein Control Event, the Voting Stock of the Company will remain trading on a U.S.national securities exchange or quoted on NASDAQ or another establishedover-the-counter trading market in the United States.

###  

### (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 

 

4

----

 

### or10 percent of the employees) shall be treated as officers.  Employees who (i) normally work lessthan 17 1/2 hours per week, (ii) normally work not more than 6 monthsduring any year, (iii) have not attained age 21, (iv) are included ina unit of employees covered by an agreement which the Secretary of Labor findsto be a collective bargaining agreement between employee representatives andthe Company or an Affiliate (except as otherwise provided in regulations issuedunder the Code) or (v) who have not completed six months of service shallbe excluded for purposes of determining the number of officers for thisdetermination.  For purposes of thisSection, the term “five-percent owner” (“one-percent owner”) means any personwho owns more than five percent (one percent) of the outstanding stock of theCompany or stock possessing more than five percent (one percent) of the totalcombined voting power of all stock of the Company.  For purposes of determining ownership, theattribution rules of Section 318 of the Code shall be applied bysubstituting “five percent” for “50 percent” in Section 318(a)(2)(C) 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 whetherYou are 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.

###  

### (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 payments andbenefits 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.

###  

### (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.

 

5

----

 

### (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.

###  

### (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.

###  

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

##  

### (a)                         The Company agrees to employ You as Chief Operating Officerof the Company with the duties and responsibilities generally associated withsuch position and such other reasonable additional responsibilities andpositions as may be added to Your duties from time to time by the ChiefExecutive Officer, the President of the Company (excluding a President of anydivision of the Company) or the Board of Directors consistent with Yourposition.

###  

### (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 Chief Executive Officer, the Presidentor the Board of Directors; and (ii) timely prepare and forward to theChief Executive Officer, the President or the Board of Directors all reportsand accountings as may be reasonably requested of You.

###  

## **3.****                                     ****Term****. **The term hereof commenced on August 27, 2007, continuedfor a period of one (1) year, was extended for an additional year from theanniversary of August 27, 2007 and shall be automatically extended fromyear-to-year thereafter unless terminated in accordance with Section 6hereof (the “Term”).

##  

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

##  

### (a)                         (1)  You shall be paid an annual base salary of notless than Four Hundred and Sixteen Thousand Dollars ($416,000) per year (the “BaseSalary”).  The Base Salary shall accrueand be due and payable in equal, or as nearly equal as practicable, biweeklyinstallments and the Company may deduct from each such installment all amountsrequired to be deducted and withheld in accordance with applicable federal andstate income, FICA and other withholding tax requirements.

###  

#### (2)  The Base Salaryshall be reviewed by the Board of Directors at least once during each year ofthe Term and may be increased from time to time and at any time by the Board ofDirectors.  The Base Salary shall in no eventbe reduced or decreased below the highest level attained at any time by You,unless You and the Board of Directors agree to implement a salary reductionprogram for cost abatement purposes.

####  

#### (3)  As the Term beginson other than the first business day of a calendar month and as the Term hereofshall terminate on other than the last day of a calendar month, Yourcompensation for such month shall be prorated according to the number of daysduring such month that occur within the Term.

 

6

----

 

### (b)                        For each fiscal year of the Company, You shall be entitledto receive an annual target bonus opportunity in an amount equal to sixty-fivepercent (65%) of Your Eligible Earnings (the “Annual Target Bonus”), with theability to earn Fifty 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 fiscalyear of the Company to which Your Target Bonus Payments relate.

###  

### (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.

###  

### (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 second highest and second most beneficial level ofparticipation provided under the AV/SP. With respect to each individual benefit, or category of similar benefit,provided to You under each of the AV/SP and this Agreement, the two (2) benefitsshall not be cumulative, and You shall be entitled to receive each suchbenefit, or category of benefit, under the terms of the AV/SP or the terms ofthis Agreement, whichever would be the greater amount or value to You, exceptthat the timing and manner of payment of such benefits shall be consistent withthe terms 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 benefits provided thereunder, shall not apply to Your right to qualifyfor and participate in the AV/SP at the second highest and second mostbeneficial level of participation.

###  

### (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.

###  

### 7

### 

###  

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

##  

### (a)                         Upon execution of the Previous Agreement, You received50,000 RSUs which shall vest in accordance with the terms of the EarthLink, Inc.2006 Equity and Cash Incentive Plan, with 25,000 RSUs vesting on August 27,2009, 12,500 RSUs vesting on August 27, 2010 and 12,500 RSUs vesting on August 27,2011, assuming Your continued employment until each such time, or as otherwisevested pursuant to Section 6.** **Upon execution of the PreviousAgreement, You also received 150,000 stock options which vest over a period offour years in accordance with the terms of the EarthLink, Inc. 2006 Equityand Cash Incentive Plan and the Company’s standard vesting schedule for stockoptions.

###  

### (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 to exerciseYour Stock Options after Your termination of employment, except as otherwiseprovided in Section 5(c) below.

###  

### (c)                         Vested Stock Options shall be exercisable for thirty (30)days following termination of employment but in no event beyond the latestexpiration date as set forth in the respective Stock Option agreement.

###  

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

##  

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

###  

#### (1)                                  For Causeimmediately by the Company; or

####  

#### (2)                                  At Your optionfor Good Reason; or

####  

#### (3)                                  At Your optionupon thirty (30) days prior written notice of termination delivered by You tothe Company; or

####  

#### (4)                                  For any reasonby the Company upon three (3) calendar months prior written notice oftermination delivered to You, except during a period of Your disability thatmay qualify as the period for qualification for Your Termination of Employmentdue to Your Total Disability as set forth in Section 6(a)(6); or

####  

#### (5)                                  By the Companyupon Your death; or

####  

#### (6)                                  By the Companybecause of Your Total Disability upon thirty (30) days prior written notice oftermination delivered to you.

###  

### (b)                        If You have a Termination of Employment that is not inconnection with a Change in Control Event (i) by the Company for otherthan “Cause,” Your death or Your Total Disability or (ii) by You for “GoodReason,” You shall be paid an amount equal to one hundred percent (100%) of thesum of (i) Your Base Salary as of the effective date of 

###  

### 8

### 

###  

### YourTermination of Employment and (ii) YourAnnual Target Bonus for the year in which your Termination of Employment occurs.  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.  However, You will not be entitled to anypayment under this Section 6(b) if you previously received paymentsunder Section 6(c) below.  Inaddition, in the event of such Termination of Employment as described in this Section 6(b),You shall become immediately vested in all Your outstanding Stock Options andRSUs that otherwise would have vested during the 18-month period immediatelyfollowing such Termination of Employment.

###  

### (c)                         If a Non-Public Change in Control Event occurs (and suchNon-Public Change-in-Control constitutes a “change in control event” within themeaning of Section 409A of the Codeand applicable regulations) andyou have not previously incurred a Termination of Employment, You shall be paidas soon as administratively practicable (and within thirty (30) days) aftersuch Change in Control Event an amount equal to one hundred and fifty percent (150%) ofthe sum of (i) Your Base Salary as of the effective date of the Non-PublicChange in Control Event and (ii) Your Annual Target Bonus for the year inwhich the Non-Public Change in Control Event occurs.  In the event You receive any payments underthis Section 6(c), Your right to receive payments under Sections 6(b) and6(d) will be terminated.

###  

### (d)                        If, in connection with a Public Change in Control Event (ora Non-Public Change-in-Control that does not meetthedefinition of a “change in control event” in Section 409A of the Codeand applicable regulations), Youhave a Termination of Employment (i) by the Company for other than “Cause,”Your death or Your Total Disability or (ii) by You for “Good Reason,” Youshall be paid an amount equal to (a) one hundred and fifty percent (150%)of the sum of (i) Your Base Salary asof the effective date of Your Termination of Employment and (ii) YourAnnual Target Bonus for the year in which Your Termination of Employment occurs.  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.  However, You will not be entitled to anypayment under this Section 6(d) if you have received payments under Section 6(c) above.

###  

### (e)                         If You have a Termination of Employment by the Company forCause, Your death or Your Total Disability or by You for reasons other than for“Good Reason,” the Company will have no obligations to pay You any amountbeyond the effective date of such Termination of Employment whether as BaseSalary, Annual Target Bonus or otherwise or to provide You with any benefitsarising hereunder or otherwise except as required by law.

###  

### (f)                           For purposes of this Section 6, Your Termination ofEmployment will be deemed to be in connection with a Change in Control Event ifit occurs on or after the Change in Control Event or after the publicannouncement of or execution of a definitive agreement for a transaction orevent that would, if consummated, be a Change in Control Event.

 

9

----

 

## **7.****                                     ****Confidential Information andTrade Secrets****. **You acknowledge that the natureof Your engagement by the Company is such that You shall have access to theConfidential Information and the Trade Secrets, each of which has great valueto the Company, provides the Company a competitive advantage, and constitutesthe foundation upon which the Business of the Company is based.  You agree to hold all of the ConfidentialInformation and the Trade Secrets in confidence and to not use, disclose,publish or otherwise disseminate any of such Confidential Information and theTrade Secrets to any other person, except to the extent such disclosure is (i) necessaryto the performance of this Agreement and in furtherance of the Company’s bestinterests, (ii) required by applicable law, (iii) as a result ofportions of the Confidential Information and/or the Trade Secrets becominglawfully obtainable from other sources, (iv) authorized in writing by theCompany, or (v) necessary to enforce this Agreement.  The restrictions set forth in this Section 7shall remain in full force and effect (a) with respect to the ConfidentialInformation, for the three (3) year period following the effective date ofYour Termination of Employment, and with respect to the Trade Secrets, until theTrade Secrets no longer retain their status or qualify as trade secrets underapplicable law.  Upon Your Termination ofEmployment, You shall deliver to the Company all documents, records, notebooks,work papers, and all similar material containing Confidential Information andTrade Secrets, whether prepared by You, the Company or anyone else.

##  

## **8.****                                     ****Inventions and Patents****. **Allinventions, designs, improvements, patents, copyrights and discoveriesconceived by You during the term of this Agreement which are useful in ordirectly or indirectly relate to the business of the Company or to anyexperimental 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.

##  

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

##  

### (a)                         Non-Competition.  You agree that during Your employment, andfor a period of twelve (12) 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.

 

10

----

 

### (b)                        Non-Recruitment.  You agree that during Your employment and fora period of twelve (12) 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.

###  

### (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) and6(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) and6(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 6(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) and 6(d) shall not be the Company’s soleand exclusive 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.

###  

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

##  

### (a)                         The parties hereto agree thatthe services to be rendered by You pursuant to this Agreement, and the rightsand privileges granted to the Company pursuant to this Agreement, are of aspecial, unique, extraordinary and intellectual character, which gives them apeculiar value; the loss of which cannot be reasonably or adequatelycompensated in damages in any action at law, and that a breach by You of any ofthe terms of this Agreement will cause the Company great and irreparable injuryand damage.  You hereby agree that thedefinition of the Business of the Company set forth in Section 1 iscorrect, that the Company and its Affiliates conduct business throughout the 50states of the United States of America and beyond, and that these restrictionsare reasonably necessary to protect the legitimate business interests of theCompany.  You hereby expressly agree thatthe Company shall be entitled to the remedies of injunction, specificperformance and other equitable relief to prevent a breach of this Agreement byYou.  This Section 10 shall not beconstrued as a waiver of any other rights or remedies which the Company mayhave for damages or otherwise.

 

11

----

 

### (b)                        In the event of any dispute overthe interpretation or application of this Agreement, the Company shallreimburse you for your reasonable attorneys’ fees and costs incurred inconnection with that dispute unless the Company is determined, by finaljudgment of a court of competent jurisdiction, to be the prevailing party onall or substantially all of the issues in dispute, which reimbursement shall bemade promptly, (and within thirty (30) days) following final judgment.

###  

## **11.****                              ****Construction and Severability****. **Theparties hereto agree that the provisions of this Agreement shall be presumed tobe enforceable, and any reading causing unenforceability shall yield to aconstruction permitting enforcement.  Inthe event a court should determine not to enforce a provision of this Agreementdue to overbreadth, violation of public policy, or similar reasons, the partiesspecifically authorize such reviewing court to enforce said covenant to themaximum extent reasonable, whether said revisions be in time, territory, scopeof prohibited activities, or other respects. If any single covenant, provision, word, clause or phrase in thisAgreement shall be found unenforceable, it shall be severed and the remainingcovenants and provisions enforced in accordance with the tenor of theAgreement.

##  

## **12.****                              ****Assignment****. **ThisAgreement and the rights and obligations of the hereunder may not be assignedby either party hereto without the prior written consent of the other partyhereto.

##  

## **13.****                              ****Notices****. **Exceptas otherwise specifically provided herein, any notice required or permitted tobe given to You pursuant to this Agreement shall be given in writing, andpersonally delivered or mailed to You by certified mail, return receiptrequested, at the address set forth below Your signature on this Agreement orat such other address as You shall designate by written notice to the Company givenin accordance with this Section 13, and any notice required or permittedto be given to the Company, the Chairman of the Board of Directors or theChairman of the Leadership and Compensation Committee of the Board of Directorsshall be given in writing, and personally delivered or mailed to that recipientby certified mail, return receipt requested, addressed to the appropriaterecipient at the address set forth under the signature of the Chief ExecutiveOfficer of the Company or his designee on this Agreement or at such otheraddress as the Company shall designate by written notice to You given inaccordance with this Section 13. Any notice complying with this Section 13 shall be deemed receivedupon actual receipt by the addressee.

##  

## **14.****                              ****Waiver****. **Thewaiver by either party hereto of any breach of this Agreement by the otherparty hereto shall not be effective unless in writing, and no such waiver shalloperate or be construed as the waiver of the same or another breach on asubsequent occasion.

##  

## **15.****                              ****Governing Law****. **ThisAgreement and the rights of the parties hereunder shall be governed by andconstrued in accordance with the laws of the State of Georgia.

##  

## **16.****                              ****Beneficiary****. **All ofthe terms and provisions of this Agreement shall be binding upon and inure tothe benefit of and be enforceable by the parties hereto and their respectivesuccessors, heirs, executors, administrators and permitted assigns.

 

12

----

 

## **17.****                              ****Entire Agreement****. **ThisAgreement embodies the entire agreement of the parties hereto relating to Youremployment by the Company in the capacity herein stated and, except asspecifically provided herein, no provisions of any employee manual, personnelpolicies, Company directives or other agreement or document shall be deemed tomodify the terms of this Agreement.  Noamendment or modification of this Agreement shall be valid or binding upon Youor the Company unless made in writing and signed by the parties hereto.  All prior understandings and agreementsrelating to Your employment by the Company, in whatever capacity, are herebyexpressly terminated.

##  

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

##  

### (a)                         If any payment or distributionby the Company and/or any Affiliate of the Company to or for Your benefit,whether paid or payable or distributed or distributable pursuant to the termsof this Agreement or otherwise pursuant to or by reason of any other agreement,policy, plan, program or arrangement, including without limitation any stockoption, stock appreciation right or similar right, or the lapse or terminationof any restriction on or the vesting or exercisability of any of the foregoing(a “Payment”), would be subject to the excise tax imposed by Section 4999of the Code or to any similar tax imposed by state or local law, or anyinterest or penalties with respect to such tax (such tax or taxes, togetherwith any such interest and penalties, being hereafter collectively referred toas the “Excise Tax”), then the payments and benefits payable or provided underthis Agreement (or other Payments as described below) shall be reduced (but notbelow the amount of the payments or benefits provided under this Agreement) if,and only to the extent that, such reduction will allow You to receive a greaterNet After Tax Amount than You would receive absent such reduction.

###  

### (b)                        The Accounting Firm will firstdetermine the amount of any Parachute Payments (as defined below), that arepayable to You.  The Accounting Firm alsowill determine the Net After Tax Amount (as defined below), attributable toYour total Parachute Payments.

###  

### (c)                         The Accounting Firm will nextdetermine the largest amount of Payments that may be made to You withoutsubjecting You to the Excise Tax (the “Capped Payments”).  Thereafter, the Accounting Firm willdetermine the Net After Tax Amount attributable to the Capped Payments.

###  

### (d)                        You then will receive the totalParachute Payments or the Capped Payments or such other amount less than thetotal Parachute Payments, whichever provides You with the higher Net After TaxAmount, but in no event will any such reduction imposed by this Section 18be in excess of the amount of payments or benefits payable or provided underthis Agreement.  If You will receive theCapped Payments or some other amount lesser than the total Parachute Payments,the total Parachute Payments will be adjusted by first reducing the amount ofany noncash benefits under this Agreement or any other plan, agreement orarrangement on a pro rata basis and then by reducing the amount of any cashbenefits under this Agreement or any other plan, agreement or arrangement on apro rata basis.  The Accounting Firm willnotify You and the Company if it determines 

 

13

----

 

### that the ParachutePayments must be reduced and will send You and the Company a copy of itsdetailed calculations supporting that determination.

###  

### (e)                         As a result of the uncertaintyin the application of Code Sections 280G and 4999 at the time that theAccounting Firm makes its determinations under this Section 18, it ispossible that amounts will have been paid or distributed to You that should nothave been paid or distributed under this Section 18 (“Overpayments”), orthat additional amounts should be paid or distributed to You under this Section 18(“Underpayments”).  If the AccountingFirm determines, based on either the assertion of a deficiency by the InternalRevenue Service against the Company or You, which assertion the Accounting Firmbelieves has a high probability of success or controlling precedent orsubstantial authority, that an Overpayment has been made, that Overpayment willbe treated for all purposes as a debt *ab initio*that You must repay to theCompany together with interest at the applicable Federal rate under Code Section 7872;provided, however, that no debt will be deemed to have been incurred by You andno amount will be payable by You to the Company unless, and then only to theextent that, the deemed debt and payment would either reduce the amount onwhich You are subject to tax under Code Section 4999 or generate arefund of tax imposed under Code 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 terms shall have their respective meanings:

###  

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

#####  

##### (ii)                                  “Net After Tax Amount”means the 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 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 a payment that is described in Code Section 280G(b)(2), determinedin accordance with Code Section 280G and the regulations promulgated orproposed thereunder.

###  

### (g)                        The fees and expenses of theAccounting Firm for its services in connection with the determinations andcalculations contemplated by the preceding subsections shall be borne by theCompany.  If such fees and expenses areinitially paid by You, the Company shall reimburse You the full amount of suchfees and expenses within five 

 

14

----

 

### business days afterreceipt from You of a statement therefore and reasonable evidence of Yourpayment thereof but in no event later than the end of the year immediatelyfollowing the year in which You incur such reimbursable fees and expenses.

###  

### (h)                        The Company and You shall eachprovide the Accounting Firm access to and copies of any books, records anddocuments in the possession of the Company or You, as the case may be,reasonably requested by the Accounting Firm, and otherwise cooperate with the AccountingFirm in connection with the preparation and issuance of the determinations andcalculations contemplated by the preceding subsections.  Any determination by the Accounting Firmshall be binding upon the Company and You.

###  

### (i)                            The federal, state and localincome or other tax returns filed by You shall be prepared and filed on aconsistent basis with the determination of the Accounting Firm with respect tothe Excise Tax payable by You.  You, atthe request of the Company, shall provide the Company true and correct copies(with any amendments) of Your federal income tax return as filed with theInternal Revenue Service and corresponding state and local tax returns, ifrelevant, as filed with the applicable taxing authority, and such otherdocuments reasonably requested by the Company, evidencing such conformity.

###  

### (j)                            All payments to be made to Youunder this Section 18 must be paid no earlier than when the applicabletaxes are to be remitted and by the end of Your taxable year next following theyear in which the taxes that are the subject of the audit or litigation areremitted to the taxing authorities or, where no such taxes are remitted, theend of Your taxable year following the year in which the audit is completed orthere is a final and non-appealable settlement or the resolution of thelitigation.

###  

## **19.****                              ****Tax Liabilities and Code Section 409A****.** Any payments or benefits that you receive pursuant to this Agreementshall be subject to reduction for any applicable employment or withholdingtaxes.  Notwithstanding any otherprovision of this Plan, if You are a Specified Employee as of Your Terminationof Employment, and if the amounts that You are entitled to receive pursuant to Section 6are not otherwise exempt from Section 409A of the Code, then to the extentnecessary to comply with Section 409A, no payments for such amounts may bemade under this Agreement (including, if necessary, any payments for welfare orother benefits in which case You may be required to pay for such coverage orbenefits and receive reimbursement when payment is no longer prohibited) beforethe date which is six (6) months after Your Termination of Employment or,if earlier, Your date of death.  All suchamounts, which would have otherwise been required to be paid over such six (6) monthsafter 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 administrativelyfeasible after the date which is six (6) months after Your Termination ofEmployment or, if earlier, your date of death. All such remaining payments shall be made as if they had begun as setforth in this Agreement.  For purposes ofthis Agreement, 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 

 

15

----

 

## Section 409A ofthe Code to avoid the imposition on You of any potential excise taxes relatingto Section 409A.

##  

**IN WITNESS WHEREOF,**Youand the Company have executed and delivered this Agreement as of the date firstshown 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 |
|                       |                            |  |  |  |  |  |

 

16

----