Exhibit 10.1
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this "Agreement") between EARTHLINK INC., a Delaware
corporation (the "Company"), and JOSEPH M. WETZEL (referred to herein as "You")
was entered into on August 27, 2007.
RECITALS
1.
THE COMPANY IS ENGAGED IN THE BUSINESS OF PROVIDING INTEGRATED
COMMUNICATION SERVICES AND RELATED VALUE ADDED SERVICES TO INDIVIDUAL CONSUMERS
AND BUSINESS CUSTOMERS THROUGHOUT THE STATES OF THE UNITED STATES; AND
2.
THE COMPANY HAS DETERMINED THAT, IN VIEW OF YOUR KNOWLEDGE,
EXPERTISE AND EXPERIENCE IN THE INTEGRATED COMMUNICATION SERVICES AND RELATED
VALUE-ADDED SERVICES INDUSTRIES, YOUR SERVICES AS THE CHIEF OPERATING OFFICER OF
THE COMPANY WILL BE OF GREAT VALUE TO THE COMPANY, AND ACCORDINGLY, THE COMPANY
DESIRES TO ENTER INTO THIS AGREEMENT WITH YOU ON THE TERMS SET FORTH HEREIN IN
ORDER TO SECURE SUCH SERVICES; AND
3.
YOU DESIRE TO SERVE AS THE CHIEF OPERATING OFFICER OF THE COMPANY
ON THE TERMS SET FORTH HEREIN.
NOW, THEREFORE, in consideration of Your employment by the Company, the above
premises and the mutual agreements hereinafter set forth, You and the Company
agree as follows:
1.
DEFINITIONS.
(A)
"AFFILIATE" MEANS ANY TRADE OR BUSINESS WITH WHOM THE COMPANY WOULD
BE CONSIDERED A SINGLE EMPLOYER UNDER SECTIONS 414(B) OR 414(C) OF THE CODE.
(B)
"BENEFICIAL OWNERSHIP" MEANS BENEFICIAL OWNERSHIP AS THAT TERM IS
USED IN RULE 13D-3 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
(C)
"BUSINESS COMBINATION" MEANS A REORGANIZATION, MERGER OR
CONSOLIDATION OF THE COMPANY.
(D)
"BUSINESS OF THE COMPANY" MEANS THE BUSINESS OF PROVIDING
INTEGRATED COMMUNICATION SERVICES AND RELATED VALUE ADDED SERVICES TO INDIVIDUAL
CONSUMERS AND BUSINESS CUSTOMERS.
(E)
"CAUSE" MEANS (I) YOUR COMMISSION OF ANY ACT OF FRAUD OR DISHONESTY
RELATING TO AND ADVERSELY AFFECTING THE BUSINESS AFFAIRS OF THE COMPANY; (II)
YOUR CONVICTION OF ANY FELONY; OR (III) YOUR WILLFUL AND CONTINUED FAILURE TO
PERFORM SUBSTANTIALLY YOUR DUTIES OWED TO THE COMPANY AFTER WRITTEN NOTICE
SPECIFYING THE NATURE OF SUCH NON-PERFORMANCE AND A 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 THE
ACTION OR OMISSION WAS IN THE BEST INTERESTS OF THE COMPANY.
(F)
"CHANGE IN CONTROL EVENT" OF THE COMPANY MEANS THE OCCURRENCE OF
ANY OF THE FOLLOWING EVENTS:
(1)
THE ACCUMULATION IN ANY NUMBER OF RELATED OR UNRELATED
TRANSACTIONS BY ANY PERSON OF BENEFICIAL OWNERSHIP OF MORE THAN FIFTY PERCENT
(50%) OF THE COMBINED VOTING POWER OF THE COMPANY'S VOTING STOCK; PROVIDED THAT
FOR PURPOSES OF THIS SUBPARAGRAPH (1), A CHANGE IN CONTROL EVENT WILL NOT BE
DEEMED TO HAVE OCCURRED IF THE ACCUMULATION OF MORE THAN FIFTY PERCENT (50%) OF
THE VOTING POWER OF THE COMPANY'S VOTING STOCK RESULTS FROM ANY ACQUISITION OF
VOTING STOCK (A) BY THE COMPANY, (B) BY ANY EMPLOYEE BENEFIT PLAN (OR RELATED
TRUST) SPONSORED OR MAINTAINED BY THE COMPANY OR ANY AFFILIATE, OR (C) BY ANY
PERSON PURSUANT TO A BUSINESS COMBINATION THAT COMPLIES WITH CLAUSES (A) AND (B)
OF SUBPARAGRAPH